MARK WILLIAMS VS. CITY OF ASBURY PARK, ETC. (L-2148-19, MONMOUTH COUNTY AND STATEWIDE)

                                NOT FOR PUBLICATION WITHOUT THE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.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2756-19

MARK WILLIAMS,

          Plaintiff-Appellant,

v.

CITY OF ASBURY PARK,
a Municipal Corporation of
the State of New Jersey,

     Defendant-Respondent.
_________________________

                   Submitted January 13, 2021 – Decided March 15, 2021

                   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.

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        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 good


1
    Two counts of the complaint pleading prerogative writ claims were withdrawn.
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and 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)).




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      "[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 the


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MLUL. 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 its

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            peculiar 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.

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The Court applied a "rational basis" test to decide the validity of an ordin ance

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, safety, and welfare of the community.

      In Shipyard Associates, LP v. City of Hoboken, 242 N.J. 23 (2020),

discussing development and construction in certain zones near water, the

relevant ordinance specified floor heights for buildings and was put forth as an

ordinance exempt from the MLUL because it implicated construction in areas

deemed to be flood hazards. Id. at 31, 42. There, the Supreme Court decided

that Hoboken's ordinance was "unmistakably a 'planning or zoning initiative'"

because "its provisions set specific standards, methods, and uses governing

construction. . . ." Id. at 42 (quoting Jackson, 199 N.J. at 54) (emphasis added).

The Court distinguished ordinances such as those at issue in Jackson, for

planting trees, and Sparroween, for smoking as "subject matter," as different

from zoning ordinances that "place limits on where or how one could bui ld."


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Ibid. The linchpin for the Court's analysis was "not only how the municipality

characterizes the ordinance, but also how the ordinance functions in practice."

Id. at 41. The intent of the MLUL is to govern how construction, building, land

use and zoning may proceed. A municipality does not necessarily implicate the

MLUL when it regulates the "subject matter" of ownership, such as with the

STR Ordinance.

      Here, the trial court decided that the city did not need to adopt the STR

Ordinance through the MLUL or zoning ordinances but was permitted to adopt

the STR Ordinance under the police power ordinance.

      N.J.S.A. 40:48-2 provides the authority to municipalities to pass

ordinances pursuant to their police power:

            Any municipality may make, amend, repeal and enforce
            such other ordinances, regulations, rules and by-laws
            not contrary to the laws of this State or of the United
            States, as it may deem necessary and proper for the
            good government, order and protection of persons and
            property, and for the preservation of the public health,
            safety and welfare of the municipality and its
            inhabitants, and as may be necessary to carry into effect
            the powers and duties conferred and imposed by this
            subtitle, or by any law.

      N.J.S.A. 40:48-2.12a also provides:

            The governing body of any municipality may make,
            amend, repeal and enforce ordinances to regulate
            buildings and structures and their use and occupation to

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              prevent and abate conditions therein harmful to the
              health and safety of the occupants of said buildings and
              structures and the general public in the municipality.

      "Home rule is basic in our government. It embodies the principle that the

police power of the State may be invested in local government to enable local

government to discharge its role as an arm or agency of the State and to meet

other needs of the community." Inganamort v. Borough of Fort Lee, 62 N.J.

521, 528 (1973) (citing Bergen County v. Port of N.Y. Auth., 32 N.J. 303, 312-

14 (1960)).

      "Regulatory and zoning ordinances are both applications of police power.

Their functions . . . must be construed in harmony with each other." Monmouth

Junction Mobile Home Park, Inc. v. South Brunswick Township, 107 N.J. Super.

18, 28 (App. Div. 1969) (citing Howell Township v. Sagorodny, 46 N.J. Super.

182, 192 (App. Div. 1957), and Napierkowski v. Gloucester Township, 29 N.J.

481, 485 (1959)).

      N.J.S.A. 40:48-2, which authorizes the municipality to make ordinances

for order and protection of persons and property, and for preservation of public

health, safety, and welfare of the municipality and its inhabitants, is an express

delegation of police power to a municipality; this express delegation "is

buttressed by the constitutional provision that 'any law concerning municipal


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corporations . . . shall be liberally construed in their favor.'" Quick Chek Food

Stores v. Springfield Twp., 83 N.J. 438, 447 (1980) (citing N.J. Const. art. IV,

§ 7, ¶ 11; Hudson Circle Servicenter, Inc. v. Town of Kearny, 70 N.J. 289

(1976); Divan Builders, Inc. v. Planning Bd. of Twp. of Wayne, 66 N.J. 582,

595 (1975)).

      The city's police power "is subject to constitutional limitation that it be

not unreasonable, arbitrary, or capricious, and that the means selected by the

legislative body shall have real and substantial relation to object sought to be

attained." 515 Assocs. v. City of Newark, 132 N.J. 180, 185 (1993) (citing

Bonito v. Bloomfield Twp., 197 N.J. Super. 390, 398 (Law. Div. 1984)).

      Plaintiff has not alleged any unreasonable, arbitrary, or capricious

limitation that might suggest an unconstitutional abuse of the municipality's

police power and offers no compelling argument that the ordinance involves

what may be built and to what standards.

      The general grant defining a municipality's police power is found at

N.J.S.A. 40:48-2. "Ordinarily, pursuant to N.J.S.A. 40:48-2, a municipality may

exercise its police powers to 'legislate for the protection of its residents and

property owners,' and such regulation will not be preempted absent a clear

legislative intention." McGovern v. Borough of Harvey Cedars, 401 N.J. Super.


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136, 149 (App. Div. 2008) (citing South Brunswick Township v. Covino, 142

N.J. Super. 493, 498 (App. Div. 1976)).

      As expressed in N.J.S.A. 40:48-2 and -2.12a, the Legislature empowered

municipalities to regulate local housing conditions and rents under the police

power. We can find no clear legislative intention to preempt the municipality's

ability to enact measures such as the STR Ordinance under the police power.

For example, in Dome Realty, Inc. v. City of Paterson, 83 N.J. 212 (1980), the

municipality enacted an ordinance that required compliance with a housing code

that delineated standards of habitability. The Court in Dome Realty stressed the

need for "local solutions to the varying public problems which confront

municipalities." Id. at 226. The Court also stated that the Legislature's general

grant of enforcement authority under N.J.S.A. 40:48-2.12a "is sufficiently broad

to encompass a scheme prohibiting the rental of housing that does not conform

to minimum requirements for 'health and safety.'" Id. at 230 (quoting N.J.S.A.

40:48-2.12a).

      Article 13:1300.1 of Ordinance 2019-16 outlines the objectives of the STR

Ordinance.

             The Asbury Park City Council finds and declares that
             the short-term rental of limited residential dwelling
             units within the [c]ity benefits the local community by
             affording owners of such units the ability to garner

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            additional income . . . as well as providing travelers
            with an alternative option for accommodations in the
            [c]ity, thereby promoting the local travel and tourism
            industry, and contributing to the economic vitality of
            the [c]ity. Notwithstanding those benefits, the City
            Council also finds and declares that certain transitory
            uses of residential property tend to affect the residential
            character of the community and, if unregulated, can be
            injurious to the health, safety and welfare of the
            community.

      Thus, the intent of the City Council is in sync with the goals and purposes

of the police power.     The STR Ordinance provides a roadmap for which

residential properties can offer short-term rentals and does not rezone or change

permitted uses of land. The presumption of validity weighs heavily in the

municipality's favor. In sum, the substance and merit of the controversy herein

did not necessitate declaratory judgment in plaintiff's favor.

      Plaintiff's remaining arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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