The opinion of the Court was delivered by
Thеse cases, consolidated for argument on appeal, concern the validity of essentially identical zoning ordinance provisions of the Boroughs of Manasquan and Belmar prohibiting, inter alia, the “group rental” of seasonal seashore resort living accommodations.
The property owner-parties in both cases had admittedly violated the ordinances. In the Manasquan ease (hereafter Kirsch) the action was in lieu of prerogative writ seeking a determination that the provisiоns were invalid and an injunction against their enforcement. The Law Division upheld the provisions and gave judgment for the Borough. 111 N. J. Super. 359 (1970). We certified Kirseh’s appeal on our own motion before argument in the Appellate Division. In the Belmar case (hereafter Schier), a similar attack was made by way of defense to a municipal court prosecution for violation of the ordinance. The conviction in that court was affirmed by the Monmouth County Court, but reversed by the Appellate Division in an unreported opinion. We granted the Borough’s petition for certification. 58 N. J. 340 (1971).
The background facts are matters of general knowledge in the section of the state bordering on the Atlantic Ocean and are not in dispute.
1
For generations the communities
Until fairly recent years summer dwelling occupancjr has been largely by conventional family units, who generally rented the accommodations for a month or the entire season. With the increased mobility of the population and the ease of travel to other parts of the country, such lengthy family stays have very frequently decreased to a week or two, with the result that property owners desiring to rent their cottages or houses seasonally must find a succession of weekly or bi-weekly tenants.
The other side of the coin, which concerns us, is the proliferation of “group rentals” during the same period. This social phenomenon entails the rental of seashore cottages,
The evil which the ordinance provisions in question seek to prevent relates to the uninhibited social conduct of many such group rental occupants within and without the buildings. Unquestionably, and regrettably, excessive noise at all hours, wild parties, intoxication, acts of immorality, lewd and lascivious conduct and traffic and parking congestion often accompany these group rentals, making life not only unpleasant but practically unbearable to neighboring vacationers and permanent residents and having a general adverse effect on the whole municipality. In essence, they constitute a public and private nuisance by not meeting the minimal standards of expected social conduct even in this rather permissive day and age. While conventional families, with a number of children and visiting friends and relatives, can be noisy and disturbing to some neighbоrs, the existence of parental or family supervision and control generally prevents their conduct from exceeding the bounds of the reasonable behavior tolerance necessarily resulting from the less formal character of vacation resort living.
Cf.
The property owners here involved quite candidly admit the existence of the evil, but apparently are unwilling to assist in eradicating it by voluntarily refusing to rent to such groups, undoubtedly because of the greater economic аdvantage to them. They urge the problem can and should be met by police enforcement of existing general police power ordinances and criminal statutes relating to noise, disorderly and immoral conduct, vehicle and traffic control and the like rather than by zoning against these group uses.
This brings us to a consideration of the ordinance provisions challenged, which represent, through amendment, refinements of previous enactments. The design of the provisions is to nip group rentals or use in the bud by prohibiting the practice and making the landlord (or the owner if he is a group user or gratuitously permits group use), the rental agent and the users subject to prosecution or injunction for violation of the prohibition. As we understand these zoning ordinances (complete copies have not been furnished us), the provisions apply in all zones of the municipalities where “one-family,” “two-family” or “multifamily” dwellings are permitted uses. 2 The result is accomplished by the definition of “family” and by an express prohibitory section against group dwelling use.
19-r2.33 Family
a. One or more persons related by blood or marriage occupying a dwelling unit and living as a single, nonprofit housekeeping unit.
b. A collective number of individuals living together in one house under one head, whose relationship is of a permanent and distinct domestic character, and cooking as a single housekeeping unit. This definition shall not include any society, club, fraternity, sorоrity, association, lodge, combine, federation, group, coterie, or organization, which is not a recognized religious order, nor include a group of individuals whose association is temporary and resort-seasonal in character or nature. 3
The prohibitory section of the Belmar ordinance reads:
19-3.4 Group Rentals. No house, dwelling, building, structure or enclosure, or any part of a house, dwelling, building, structure or enclosure, within any of the zones enumerated in section 19-3.1 preceding, shall be used, or be permitted to be used, or be rented for use, as living quarters or sleeping quarters or for living purposes or sleeping purposes, by or to any society, club, fraternity, sorority, association, lodge, combine, federation, group, coterie, or organization, or to any person or member on behalf of the same, or to any group or collection of persons who are unmarried or who do not qualify as a family as defined in subsection 19-2.33 of the within chapter. This subsection shall not apply to rooming houses, hotels, motels or other places of public accommodation in the Borough of Belmar, which places are duly licensed as such by the said borough, or to recognized religious orders, convents, rectories, or parish houses or manses utilized in conjunction with any church or synagogue or similar house of worship. 4
By subsection a. of the definition section, any number of persons, so long as they are all related by blood of marriage and live as a single unit, constitute a “family” for zoning ordinance purposes, whether their dwelling occupancy be permanent or seasonal. This is obviously intended to cover one conventional “family,” living together, whether it be composed of a spouse or spouses and children or of persons otherwise related. If the individuals are not so related, their joint occupancy of a dwelling is prohibited by alternative subsection b. unless it is of a permanent as distinct from a temporary and seasonal character. Thus two unrelated families of spouses and children cannot share an adequate cottage or house for the summer, nor could a small unrelated group of widows, widowers, older spinsters or bachelors — or even of judges. Likewise barred from seasonal use would be a perfectly respectable group or organization of older persons, unless (under the Belmar ordinance) they were all members of a recognized religious order. Such a non-religiously connected group would seem as innocuous as one with religious connections. Moreover, it appears that a violation would occur under subsection a. if the related family unit had house guests.
The extent of the prohibition becomes at least ambiguous and probably inconsistent when the prohibitory section is
A panoramic view of these ordinance provisions indicates an effort to be certain to bar one offensive dwelling use, which at the same time results in a prohibition of many which are non-obnoxious. Perhaps the prime difficulty is that of attempting to define an unorganized group, to which a рrecise label cannot be affixed, without at the same time affecting other dwelling situations which present no sufficient evil. In reality the aim is to prevent anti-social conduct of a certain somewhat nebulous class of individuals by resort to prohibitions under the zoning power through a fragmentation of dwelling uses. The problem is one which has not previously reached this Court.
At the outset, it may well be questioned whether the zoning power, as delegated by the Legislature, legitimately extends so far. Justice Schaefer, speaking for a unanimous Illinois Supreme Court, felt that it did not in his thoughtful opinion in
City of Des Plaines v. Trottner,
34
Ill. 2d
432, 216
N. D. 2d
116 (1966). There the ordinance defined “family” as “one or more persons each related to the other, by blood (or adoption or marriage), together with such relatives’ respective spouses, who are living together in a
The General Assembly has not spеcifically authorized the adoption of zoning ordinances that penetrate so deeply as this one does into the internal composition of a single housekeeping unit. Until it has done so, we are of the opinion that we should not read the general authority that it has delegated to extend so far. Such a reading would generate constitutional questions of the kind [unreasonable classification] suggested by the defendants, concerning which we express no opinion. (216 N. E. 2d at 120). 5
In the course of the opinion comment was made on the Essex County Court opinion in
City of Newark v. Johnson,
70
N. J. Super.
381 (1961). There the zoning ordinance similarly limited a "family” and single-family dwelling owners were convicted of ordinance violations because they had living within the homes unrelated children who were wards of the State Board of Child Welfare boarded with them by that agency. Justice Schaefer found the considerations advanced by the court to sustain the provision as not particularly persuasive. While we have similar doubts, we need express nо definitive opinion because the factual situation there involved is now expressly covered by legislation.
We prefer, however, to deal with the cases before us on the basis of unreasonableness and arbitrariness of these zoning provisions. It is elementary that substantive due process demands that zoning regulations, like all police power legislation, must be reasonably exercised — the regulation must not be unreasonable, arbitrary or capricious, the* means selected must have a real and substantial relation to the object sought to be attained, and the regulation or proscription must be reasonably calculated to meet the evil and not exceed the public need or substantially affect uses which do not partake of the offensive character of those which cause the problem sought to be ameliorated. We think it clear that these “family” definitions and prohibitory ordinance provisions preclude so many harmless dwelling uses, as we have earlier pointed out by examples, in the effort to ban seasonal uses and rentals by unruly unrelated groups of young adults who indulge in anti-social behavior, that
We fully concur in the reasoning and conclusions of Judge Conford in Gabe Collins Realty, Inc. v. City of Margate City, 112 N. J. Super. 341 (App. Div. 1970), which was held to be dispositive by the same court in Schier. While the zoning ordinance provision in Gabe Collins, aimed at the same evil, was more restrictive in some aspects and less in others than those in the cases at bar, 7 his concluding '• comments are, in our opinion, equally applicable here:
Upon a consideration of all of the foregoing, it is our judgment that a general municipal restriction of occupancy of dwelling units to groups of persons all of whom are related to each other by blood, marriage or adoption is unreasonably restrictive of the ordinary and natural utility of such property as dwellings for people, and of the right of unrelated people in reasonable number to have recourse to common housekeeping facilities in circumstances free of detriment to the general health, safety and welfare. * * * Thus, even in the light of the legitimate concern of the municipality with the undesirable concomitants of group rentals experiencеd in Margate City, and of the presumption of validity of municipal ordinances, we are satisfied that the remedy here adopted constitutes a sweepingly excessive restriction of property rights as against the problem sought to be dealt with, and in legal contemplation deprives plaintiffs of their property without due process. (112 N. J. Super, at 349).
Gabe Collins
is the only reported appellate decision we know of which deals with attempts to meet the type of sea
At oral argument counsel for the municipalities asked for some guidance on how the problem might validly be handled if we found the zoning ordinance provisions improper. We are entirely sympathetic to the community desire to prevent one segment of the summer population from so adversely affecting other vacationers and permanent residents, as well as the municipality as a whole, by their conduct. Ordinarily obnoxious personal behavior can best be dealt with officially by vigorous and persistent enforcement of general police power ordinances and criminal statutes of the kind earlier referred to. Zoning ordinances are not intended and cannot be expected to cure or prevent
The judgment of the Law Division in A-135 is reversed and the cause is remanded to that court for the entry of a judgment consistent with this opinion. The judgment of the Appellate Division in A-140 is affirmed. Ho costs in either case.
For reversal and remandment in A-135—Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Haul and Schettino—6.
For affirmance—Hone.
For affirmance in A-140—Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hale and Schettino— 6.
For reversal—Hone.
Notes
It was stipulated in
Kirsch
that the court might utilize the findings made by it in the earlier case of
Larson v. Mayor and Council of Borough of Spring Lake Heights,
99
N. J. Super.
365 (Law Div. 1968). They are equally applicable in
Schier.
In
Larson,
in which Kirsch and Manasquan were also parties, the court invalidated as too sweeping substantially similar prohibitions contained in a general police power, as distinct from a zoning, ordinancе, but suggested they might well be valid if enacted as provisions of a zoning ordinance. We agree with the Appellate Division’s statement in
Gabe Collins Realty, Inc. v. City of Margate City,
112
N. J. Super.
341 (1970), a case analogous to those before us, that “given arbitrariness or un
The Schier property is in a residential zonе. The Kirsch properties are in the “Resort-Business” zone adjacent to the ocean, in which we understand dwelling uses as well as the gamut of usual seashore resort businesses are permitted. The various kinds of seasonal and permanent dwelling uses, which include many non-group rental dwelling uses, far exceed the number of businesses. Kirsch suggests that at least prohibition of seasonal group rentals is unreasonable in a zone permitting commercial establishments. We do not agree in view of the nature оf the evil and the allowance and prevalence of residential uses in the zone. In any event, the question is not pivotal in the light of our concept of the case.
The Manasquan ordinance is substantially identical except that it states that the “definition shall be deemed to include [as allowable] maids, servants or other employees of one or more members of the family.” We think this would be implied anyway.
The Manasquan ordinance section is the same, except that it does not contain the last sentence. The exemption of rooming houses, hotels and motels is of no real importance since such uses are generally considered business and not dwelling uses and regulated as such and do not actually involve group rentals. Seasonal group use of living quarters by non-relatives in connection with houses of worship would seemingly be barred by the Manasquan “family” definition and prohibitory section absent the exemption found in the Belmar provision. In our opinion, inclusion of this exemption in the Belmar or
See also Donadio v. Cunningham, 58 N. J. 309, 326 (1971), footnote (8), as to what amounts to a land “use” regulatable within the contemplation of the zoning power.
This same thought appears to run through the opinion of Judge G. H. Brown in Marino v. Mayor and Council of Norwood, 77 N. J. Super. 587 (Law Div. 1963). There the ordinance defined family as any number of individuals related by blood or marriage, living together as a single housekeeping unit. In a permanent, purely domestic situation, he said:
Until compellеd to do so by a New Jersey precedent squarely in point, this court will not conclude that persons who have economic or other personal reasons for living together as a bona fide single housekeeping unit and who have no other orientation, commit a zoning violation, with possible penal consequences, just because they are not related. (77 N. J. Super, at 594).
The Margate City ordinance defined “family” for purposes of dwelling use restriction as: “* * * one or more persons related by blood, marriage or adoption or not more than two unrelated persons occupying a dwelling unit as a single nonprofit houskeeping unit.”