Williams v. City of Asbury Park

Decision Date15 March 2021
Docket NumberDOCKET NO. A-2756-19
PartiesMARK WILLIAMS, Plaintiff-Appellant, v. CITY OF ASBURY PARK, a Municipal Corporation of the State of New Jersey, Defendant-Respondent.
CourtNew Jersey Superior Court – Appellate Division

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Before Judges Whipple, Rose and Firko.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2148-19.

Mark Williams, appellant pro se.

Ansell Grimm & Aaron, PC, attorneys for respondent (Barry M. Capp, of counsel and on the brief).

PER CURIAM

In January 2018, the Asbury Park City Council adopted a short-term-rental ordinance (STR Ordinance), which the voters approved in the November 2017 election. In 2019, the council adopted an amended STR Ordinance, after revising the initial STR Ordinance. Plaintiff challenged the ordinance as irregularly enacted. We affirm.

The STR Ordinance permits short-term rentals of thirty or fewer consecutive days,

up to a cumulative total period of not to exceed one hundred eighty (180) days in a calendar year, which dwelling unit is regularly used and kept open as such for the lodging of guests, and which is advertised or held out to the public as a place regularly rented to transient occupants . . . .

The STR Ordinance classifies property where short-term rentals are permitted, and it lists dwellings where they are forbidden (such as "foster homes, adult family care homes, assisted living facilities . . ."; "individually or collectively owned single-family residential dwelling unit[s], which address none of the owners legally identifies as his or her principal residence"; and "[a] unit in a two-family residential dwelling, where the other unit is not occupied by the owner nor legally identified by the owner as his or her principal residence;" among others). The ordinance also requires permits and certificates of occupancy.

Plaintiff, a resident of Asbury Park (the city), filed a complaint June 17, 2019, alleging the city improperly adopted the STR Ordinance, and sought relief under the Uniform Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62,1 asserting that short-term rentals were prohibited prior to the STR Ordinance; the ordinance itself created a new permitted use; and in enacting the STR Ordinance, the city conducted zoning within the definition of the New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136. Plaintiff alleged the STR Ordinance created a new use that conflicts with the city's existing zoning ordinances, thereby implicating the MLUL and its mandatory procedures. Plaintiff also argued the ordinance impacted and will continue to impact him and others through frequent noise pollution and an aggravated dearth of on-street parking caused by tenants.

In lieu of filing an answer, the city moved to dismiss for failure to state a claim under Rule 4:6-2(e). The court heard argument from the parties on the city's motion to dismiss and on January 31, 2020, granted defendant's motion to dismiss. The trial court upheld a presumption of validity for adopted ordinances, citing Timber Glen Phase III, LLC v. Township of Hamilton, 441 N.J. Super. 514 (App. Div. 2015) and found the ordinance necessary and proper for the goodand welfare of local inhabitants, properly enacted under the city's police power, pursuant to N.J.S.A. 40:48-1 and -2. This appeal followed.

We review the trial court's decision on a motion to dismiss applying a plenary standard of review, and "owe no deference to the trial court's conclusions." Gonzalez v. State Apportionment Comm'n, 428 N.J. Super. 333, 349 (App. Div. 2012) (citing Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011)). The trial court's determination is reviewed de novo, and the "legal consequences that flow from established facts are not entitled to any special deference." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

The test is, as set forth in Rule 4:37-2(b), "if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied." Dolson v. Anastasia, 55 N.J. 2, 5 (1969) (citing Bozza v. Vornado, Inc., 42 N.J. 355, 357-58 (1964); Bell v. Eastern Beef Co., 42 N.J. 126, 129 (1964); Franklin Discount Co. v. Ford, 27 N.J. 473, 490 (1958)).

"[A]ll municipal ordinances [are] entitled to a presumption of validity." Sparroween, LLC v. Twp. of West Caldwell, 452 N.J. Super. 329, 339 (App. Div. 2017) (citing Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551 (2015)); see also First Peoples Bank of N.J. v. Twp. of Medford, 126 N.J. 413, 418 (1991) ("[A] reviewing court should presume the validity and reasonableness of [a] municipal ordinance.").

A party challenging that ordinance may overcome the presumption of validity by demonstrating that the ordinance, "in whole or in application to any particular property," is "arbitrary, capricious or unreasonable." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 289-90 (2001) (citing Bow & Arrow Manor, Inc. v. Town of West Orange, 63 N.J. 335, 343 (1973)).

Plaintiff does not argue that the STR Ordinance is arbitrary, capricious or unreasonable, but asserts the STR Ordinance is a zoning ordinance under the MLUL. The crux of his argument is that if the ordinance is a zoning ordinance subject to the MLUL, then the ordinance was improperly adopted by the city and is therefore void. We are not persuaded.

We are asked to address whether regulating short-term rentals should be considered a land-use restriction, or a restriction on the form and ownership of property. If the regulation is a land-use restriction, it is evaluated under theMLUL. If the regulation is a restriction on form and ownership that does not implicate zoning, it is an exercise of the police power. Therefore, to determine the validity of the ordinance, we examine whether the ordinance is properly evaluated as a zoning ordinance, under the MLUL or an exercise of the municipality's police power, under N.J.S.A. 40:48-1 and -2.

N.J.S.A. 40:55D-62(a) defines zoning:

The governing body may adopt or amend a zoning ordinance relating to the nature and extent of the uses of land and of buildings and structures thereon. Such ordinance shall be adopted after the planning board has adopted the land use plan element and the housing plan element of a master plan, and all of the provisions of such zoning ordinance or any amendment or revision thereto shall either be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements; provided that the governing body may adopt a zoning ordinance or amendment or revision thereto which in whole or part is inconsistent with or not designed to effectuate the land use plan element and the housing plan element, but only by affirmative vote of a majority of the full authorized membership of the governing body, with the reasons of the governing body for so acting set forth in a resolution and recorded in its minutes when adopting such a zoning ordinance; and provided further that, notwithstanding anything aforesaid, the governing body may adopt an interim zoning ordinance pursuant to subsection b. of section 77 of P.L.1975, c. 291 (C.40:55D-90).
The zoning ordinance shall be drawn with reasonable consideration to the character of each district and itspeculiar suitability for particular uses and to encourage the most appropriate use of land. The regulations in the zoning ordinance shall be uniform throughout each district for each class or kind of buildings or other structure or uses of land, including planned unit development, planned unit residential development and cluster development, but the regulations in one district may differ from those in other districts.

Although there is a separate constitutional provision regarding zoning, N.J. Const. art. IV, § 6, ¶ 2, it is not a source of power separate from the police power. N.J. Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 38, 53 (2009). Restrictions on ordinary incidents of ownership are not constitutionally offensive when reasonable in degree and considered necessary by the governing body to promote physically harmonious growth of land use in a municipality. Gougeon v. Bd. of Adjustment of Borough of Stone Harbor, 52 N.J. 212 (1968).

We clarified that under N.J.S.A. 40:55D-1: "many ordinances, including health ordinances, touch on the use of land, but are not within the planning and zoning concerns of the [MLUL]; such ordinances are enacted pursuant to the general police power and apply to everyone." Sparroween, 452 N.J. Super. at 339 (citing Jackson, 199 N.J. at 53-54).

In Jackson, the Supreme Court rejected a challenge to a municipality's police power; the township's tree removal ordinance was found to be a valid exercise of the police power, not subject to limits of the MLUL. 199 N.J. at 38.The Court applied a "rational basis" test to decide the validity of an ordinance that was enacted pursuant to the police power. Id. at 43. The Court stressed that "[t]he lower courts erred in failing to accord deference to the presumption of validity of the ordinance and by too narrowly characterizing the goals underlying it." Ibid. Because the city's ordinance maintains a presumption of validity, plaintiff here has not met the high bar of rebutting that the STR Ordinance has no rational relationship to the municipality's stated goal of preventing injury to the health,...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT