*1 PLAINTIFF-APPELLANT, SENTE, THE MAYOR STEVEN CLIFTON, THE OF OF CITY MUNICIPAL COUNCIL AND OF THE STATE NEW OF A CORPORATION MUNICIPAL WALTERS, DIREC- JERSEY, HOUSING AND WILLIAM TOR, DEFENDANTS-RESPONDENTS. Argued May 1974. December 1974 Decided *2 cause for plaintiff- A. Peter Buchsbaum argued Mr. the appellant. Sullivan, cause for defend- Jr. the Arthur J. argued
Mr. ants-respondents. was delivered
The of the Court opinion we may moot. J. case is since long This While Hall, in the issue a when the interest determine moot appeal desirable, of as make a resolution is so to presented great Levine, J. 364 dismissed appeal Busik 63 (1973), L.Ed. 2d 733 we 38 414 U. S. 94 S. when, here, do as record and contentions should not the so unsatisfactory are so very far-reaching on a novel question we cannot of result. be confident correct reaching action, writ, in the prerogative The in lieu of commenced of Law Division in a declaration of sought invalidity of Clifton police power city ordinance requiring minimum floor area for on dwelling certain each unit based number of The enactment then occupants. required for feet floor each of the square space occupants first two- an additional feet for each square additional oc- The cupant regardless age. prohibition the ordinance to or to any extended for person occupying, letting another any occupancy, dwelling which dwelling unit did not 19'64, Prior comply. required only feet for occupant the first and 80 for each square square feet except additional occupant, only square feet was By under six amendment years age. needed for each child first was occupant raised year, requirement and 100 feet for each additional feet square square An amendment in 1970 raised occupant, irrespective age. to 150 feet. occupant square for the second requirement Plaintiff was as employed superintendent garden apart- ment and received use of rent-free complex apartment wife of his His consisted of his part compensation. family The not apartment large enough children. five meet the for a that size. Plain- requirements living group of tiff was threatened officials with enforcement of by municipal him, the ordinance would he mean against would only have to his apartment, give up job. but vacate suit followed.
The trial enactment, sustained the without court *3 trial, by defendants’ motion for summary judgm granting ent.1 While plaintiff’s was unheard in appeal pending Division, he Appellate was from his discharged position so to required vacate the The moved apartment. family to another in October 1972 and municipality obviously plaintiff no has real interest in longer any Clifton’s ordinance or liti action, it. The gation attacking moot, which became thereby has since been carried on in name a civil plaintiff’s by liberties for counsel him arranged originally) organization (which itself. included continuation standing no of the having Such Division, an in the in Appellate resulting affirmance appeal N. J. court, of Super. the trial and the (1973), pros court, to this appeal ecution of the which was present brought of a on claim involvement substantial constitutional B. 2:2-1 (a)(1). question. minimum floor area basing a
Regulations requirements of unit on the number occupants have dwelling apparently except 1Planitiff’s was denied cross-motion that a section of the giving municipal dwelling units, officials free ordinance access to all warrant, inspect compliance a for without to same ordinance unconstitutional as violative of the Fourth declared Amendment. The court. an appellate been passed never previously court is a trial subject found on the can be ease that only Commission, East Cleveland Ohio, Nolden v. in opinion sustained N.E. 2d 421 Misc. 12 Ohio ameliorat- however, certain enactment, having, a comparable aspects. ing — living for a fundamental The instant affects — an apartment must only Mot very drastically. housing arrival child or the birth of an additional tenant vacate if the floor area minimum required of an causes the aged relative must exceeded, dwelling to be but the owner of single-family if such event from their own home family likewise move his homes such mobile occurs. minimum are figures The are im- and two one-room person apartment occupancy age made with to the respect And no distinction is possible. elderly people of the children occupants; young possibly Moreover, well since this may space. regula- need less living tion is and not as power part in the grounded general police ordinance, under law this of the municipality’s zoning to all moment state date to units applies dwelling and there no unit. protection passage nonconforming addition, reason, In same no possibility there is case obtaining any alleviation. the Ohio regulation cited was at least ameliorative subject these features. factual and rec- legal contentions
Turning ord, was, said, the case as we have Law Divi- decided sion on motion without trial. Plaintiff offered no substan- tial and rested on abstract evidence federal constitutional propositions largely little relevance. These claims included *4 of violation of due process equal protection by burdening the exercise of fundamental a without rights state compelling interest, such as right to the privacy, to right procreate,2 Fleur, 2See Cleveland Board Education v. La 414 U. S. (1974), holding compulsory L. Ed. S. ternity 2d 52 ma invalid prescribed point pregnancy, leaves for a teachers at in by parties. referred to to the free exercise of religion, marry, right the right well as discrimination by be as uprooted, and the not to right and racial minorities. The families, the poor against large affidavit of its local relied the conelusional on municipality officer, was not even cross- expert (he health as a purported and reasonable- propriety in examined), support legal follow the The on arguments appeal ness the regulation. same tack. may require legitimately government
We assume number and based on the area for units living floor minimum health of public in the character interest occupants in municipalities has delegated been power that such with A. The real N. J. 40:48-2. questions this 8. state mínimums whether the are regulation such any respect reasonable, so, and if whether regu- are legally prescribed for and not for health reasons actually adopted lation was indicated, regulations previously other As purpose. some of housing, espe- availability kind affect the drastically this means, like plain- families of modest cially large poor severe shor- tiff’s, undoubtedly whom general as to there The record decent, suitable accommodations. tage living indicates this is true in Clifton. so in so fundamental consequences being great
area, for the perhaps justification enactment particular ought Paramus, to rest upon municipality. Moyant See N. J. 528, Indeed, (1959). legal reasonableness of kind regulation might depend upon proof every person less than the enjoying particular minimum prescribed amount living spаce necessarily encounters a realistic in- dividual health hazard and presents substantially certain may health noted (It the Clifton problem. are, least, in one respect higher mínimums than suggested model housing codes relied af- proposed A enactment should neither municipal be struck fidavit.) when, here, nor validated vital truly have aspects down not been or considered. presented
209 trial at the Furthermore, any exploration the absence of was adopted why predecessors this ordinance its level what was real reason for The passage. one makes wonder health say health affidavit did was the rea- officer’s that in the minimum son and the increases progressive suggest of some other motivation. notice can be Judicial possibility Pa- adjacent taken the fact Clifton is to the cities of that Passaic, have terson both of which substantial and in- numbers of families from creasing poor predominantly mi- nority might groups, expected naturаlly over spill into Clifton. Such families are cannot frequently large and afford need extensive expensive quarters, but still municipal services. The Clifton ordinance will effectively wall them out municipality. city should be to establish required was not enacted for any improper purpose. such all
For mentioned, of the reasons we should not decide this moot appeal nor Division Appellate have enter- should the tained it. It is dismissed judgment the Appellate Division is vacated. No costs. The majority
Pashman, J. now (dissenting). concudes that this case moot. The majority does not contend that compelled by conclusion is doctrine mootness on It concedes appeal. necessarily can and often this Court has decided factually moot eases interest. Dunellen Ass’n, Bd. v. Ed. Dunellen Ed. J. 17, 64 N. 21 (1973); Levine, v. 351, Busik 63 N. J. 364 dismissed (1973), appeal 831, S. U. 38 L. Ed. 2d 733 John (1973); Heston, F. Memorial Kennedy v. J.N. Hospital 576, 578 Coun., Ed. E. Brunswick (1971); Bd. E. Tp. Bruns wick, Perricone, N. J. 109 (1966); State v. 37 N. J. 463, 469 denied, cert. 371 U. S. 83 S. Ct. ;
9 L. Ed.
2d
(1962) Annotation, “Public
interest as
ground
refusal to dismiss an appeal, where question has
moot,
become
or dismissal is sought by one or both parties,”
interest. the reason that very ques- for the be decided not should case 305. Ante at very reaching.” far “novel and are tions of ju- interests serves important mootness of The doctrine in- of cases Decision moot restraint. and economy dicial resources of expenditure judicial of wasteful volves the risk or one, of erroneous no of importance on issues practical of the absence the by vigor- caused opinions overgeneralized of fact focus necessary to adversary advocacy questions ous all the ram- the attention of law and to court’s bring and un- also involves creation of of the ifications the issues. It flexibility which limit precedents constitutional necessary the these by Against action courts legislature. of subsequent of judicial be bаlanced the interest the considerations must of the same in issues system avoiding repeated relitigation in and, the interest of the people of most important weight, and defini- prompt issues of having public importance given tive resolution.
The of clearly by this Court was most position enunciated Levine, Weintraub in Busik 63 N. J. 351 Chief Justice : (1973) * * * [Tjhei’e may go is no constitutional mandate that a court not
beyond necessary is an what decide a case at hand. Whether issue narrowly expansively judge’s will dealt with or for calls evalua- many things, including guidance tion or need for for the bar agencies government general public. end, or To the Court may existing express doctrines, thereby inviting litiga- doubts tion, may an or raise issue should itself thinks be resolved in interest, deliberately public may or decide issues need not be may when it is So decided believes course warranted. a court though litigation moot, again issue even has in decide an "become * * 363-364; [at omitted]. interest *. citations The in clearly weighs balance this case against dismissal The been fully on of mootness. case has grounds com- — — even briefed and zealously both pletely argued by no lack advocacy displays The parties.1 adversary spirit. majority appears plaintiff 1The to think that the faet been has represented throughout litigation by the American Civil Liberties an abstract perils deciding is with the Court not faced or an unrealistic opinion its terms couching question a real record set displays artificial factual situation. The facts, arguments the constitutional one which focuses sharply Law, Davis, Administrative parties have made. § Cf. 6.14 274-83 at (1970 Supp.). idle exercise most this
Finally,
significantly,
in constitutional
The Clifton ordinance
jurisprudence.
resembles
Model
substantially
issue
State
ease
New
by
Code Ordinance
De
Housing
developed
Jersey
New
partment
Community
adoption by
Jersey
Affairs
municipalities.
It also resembles model codes developed
the United
Public
States
Service and thе
Health
American
*7
Public Health Association
has significant
in
features
common with provisions of
New
Sanitary
State
Jersey
the
N. J. A.
Regulations.
O. 5:10—6.3. The challenges
by
made
ordinance,
the
plaintiff to
whether
ultimately meritorious
not, raise fundamental
both
as to
the
questions
power of mu
to
to
nicipalities
act
forestall urban
blight
protect
the
health of their residents and the constitutional
limits on the
means
use
they may
to achieve those ends. These are ques
tions which the Court ought to resolve at the earliest oppor
tunity.
In the
of
words
Justice Brennan, “[The Court]
should not transform
principles
avoidance of constitutional
decisions into devices for sidestepping resolution of difficult
cases.” De Funis v. Odegaard, 416 U.
350, 94 S. Ct.
1704, 1722,
ing
reaching importance.
in
right
decisions of far
plaintiff
represented by
organization
to
right
be
such an
аnd the
of such an
organization
appear
behalf,
to
on his
litigation
even to control
the
litigational
strategy,
and to
long
select the issues and
so
as it does so
plaintiff,
with
expressly protected
the informed consent of
the
First Amendment of the
X,
federal constitution
and Article
§ 6
Button,
our Constitution
1947. NAACP
371 U. S.
83 S.
(1963).
By July dated director of Clif- the housing ton he plaintiff informed violation of or- dinance and vacate letter, should A premises. subsequent 13,1970, dated gave October a six-month plaintiff grace period 'Tecause hardship placed on families larger to shor- due tage then, rental units.” Since Mrs. Sente had given child, birth to sixth late in summer of 1972. On Oc- *8 21, 1972, tober and plaintiff Lodi, his family moved to after being discharged superintendent as building and told to va- cate his Clifton dwelling. 21,
On December filed plaintiff complaint in lieu writ, prerogative challenging validity Ar- Chapter ticle Section 9-31 (a)2 the Revised Ordinances of Clif- 2Gliapter 9, (a) Article Section 9-31 : person occupy occupancy dwelling No or any shall let to another for dwelling unit, purpose living therein, for which does not comply following requirements: with the both the Plaintiff has that vigorously equal ton. maintained and due clauses oi Fourteenth Amend- process protection this, To Clifton re- ment have violated. defendant been was a exercise police that the sponded legitimate ordinance and and for necessary public was both reasonable power, health filed an its health of- and welfare. Clifton affidavit of that in his ficer this effect. The said official clear made health” opinion related to directly “adequate housing and, therefore, “eminently believed that reasonable and did reason- not exceed minimum standard ably for required and preservation maintenance health of the citizens of further in- of Clifton.” He dicated the ordinance’s substantially requirements that were similar to those suggested Jersey Code, the New Housing а proposed model issued housing jointly code State Department of Conservation and Economic Develop- ment and the Department of Health.
Plaintiff’s motion for denied and summary judgment was on defendants’ similar motion, judge plaintiff gave days to present evidence that demonstrating the standards set forth in the ordinance were unreasonable. Plaintiff failed present such any evidence, and motion was defendants’ granted. As a fact, matter of plaintiff’s counsel conceded oral argument “Mrs. Sente realizes now right her apartment is not for her her adequate children.” five
Plaintiff’s to the Division appeal Appellate unsuc- proved cessful; it was determined that the ordinance was authorized 40:48-2, under J. A.S. that it did not conflict with any law, other State plaintiff’s constitutional allegations were merit. & without Sente v. Mayor Mun. Coun. Clifton, al., et 123 N. J. Super. 274 Div. (App. 1973). of ap- Notice (a) Every dwelling square shall unit contain at least 150 feet of space occupant uр floor for each thereof to maximum two occu- pants square space every at least 100 additional feet floor occupant thereof, space additional the floor to be calculated on the basis of the total habitable area.
2U R. 2:2-1 (a) filed to pursuant Court was the Supreme to
peal (!)(cid:127)
I as N. J. S. A. 40:48-2.3.3 Mr. use of challenges Sente the restrictive present authority providing enabling his in borne out generally ordinance. Plaintiff is municipal to parameters contention case law the statute’s delimiting Harrison of a building. or demolition repair, closing Beach, 1952); Div. N. J. Super. (App. Twp. Long of 1956); Div. City, Lewis 40 N. Super. (Law v. Atlantic J. Co., N. J. Super. Newark v. Charles Realty au 1950). legislative But this is (Cty. example in build inhabitants thorization to municipalities protect to J. A. :42-74 2A for use. also which are See ings unfit mu to allow et a means seq. are designed sections These min adhere to dwellings to ensure that multiple nicipalities leg- “minimum standards” This safety. imum standards police municipalities; buildings in 3 40:48-2.3 exercise Unfit рower authorized hereby occupation is It found and declared or existence municipalities any building parts buildings, thereof, or in or repair dilapidated old, State are so out of or have become so dangerous, unsafe, insanitary human as to habitation, or unfit for otherwise occupancy, use, or and or are inimical to the welfare dangerous injurious safety people of this to the health State, public necessity repair, closing that a or exists for the building buildings, part or or demolition such thereof. Whenever any municipality mu- of this State finds that there exists such nicipality any building buildings for human habita- or which are unfit increasing occupancy, use, dilapidation, or to tion or due defects ventilation, light fire, calamities, other lack of hazards of accidents or rendering facilities, or such build- sanitation due to other conditions or ing part thereof, insanitary, dangerous buildings, or or or or unsafe safety or detrimental or otherwise inimical to health or power hereby municipality, con- of the residents of said welfare ferred municipality police powers repair, such exercise its require repairing, closing demolish, close or or or or demoli- cause building buildings, part thereof, or manner tion of such provided. herein *10 was the for the of starting point right islation municipali- ties to enact aimed ordinances substandard shoring up ordinance in should be considered housing. question The on the same level any ordinance enacted to this pursuant minimum standards a It is legislation. municipal expres- sion of with compliance desire to allow Legislature’s such control over which- housing problems essentially are local in concern and thus should be in local solution.
But we need not look to the for aforementioned statutes of authority Clifton to legislate on the matter subject involved. I recognize a act within municipality must the bounds of its v. delegated authority. Ringlieb Tp. of Hills, Parsippany-Troy 59 N. J. In re Public (1971); Co., Service Elec. & Gas 35 N. J. The New (1961). Jer sey Constitution axiom qualifies that by laws declaring that concerning municipal corporations in liberally construed their favor and shall include not only powers expressly but granted also those which are necessary or incidental the powers conferred. N. J. Const. IY, VII, Art. (1947), § 11: ¶ provisions any concerning The of this Constitution and of law mu- nicipal corporations government, concerning formed for local or coun- ties, liberally powers shall be construed in their favor. The of coun- municipal corporations only ties and such shall include not those granted express necessary implica- terms but also those of or fair tion, powers expressly or conferred, incident to thereto, or essential prohibited by and not inconsistent with by or this Constitution or law. J.N. A. 40:48-24 has consistently been broadly con- necessary proper 4 40:48-2. Other and ordinances Any municipality may make, repeal amend, and enforce such other ordinances, regulatiоns, by-laws contrary rules and to the laws States, may this state or of the United necessary as deem and proper good government, protection persons order and property, preservation and for the health, safety of the municipality inhabitants, welfare may and its and as be neces- sary carry powers into effect the imposed and duties conferred and subtitle, by any this law. municipal found to be repository general strued and could be under which the power present police v. Tea in Summer Weintraub enacted. Both Chief Justice N. J. neck, Mountain 53 N. J. 548 and Justice (1969) J.N. E. Tp., Builders Ass’n v. Brunswick Mayor, Both state opinions refer to this legislation. police grant been held to effect broad has statute police history to municipalities. powers Thus> restraints story ever-increasing power growth must include vast power property rights. police Weintraub, writing (then Judge) reservoir. Chief Justice Newark, etc., Mayor, Wagner in the court in lower *11 J.N. 467 J. rev’d 24 42 N. 193 Div. Super. (Law 1956), scope pоlice of increasing expounded upon and municipal authority. power * * * iphg history ever-increasing police power story of of the is a upon property rights. growth, industrial restraint economic With phenomenal
innovations, greater population, concentrations mobil property rights ity, an which at time innocuous exercise of one was may police today power welfare. The must include menace government obligation equal reservoir if is to be to the vast required legislative expressions govern. has The march new events kept police pace. delegable the state Local have at level. demands meeting Today many power equal must be to the task of them. mu nicipalities populations exceeding some have those of states. Mani police power festly, may delegable said to be constitu tionally problems village. of an [42 in ancient fixed terms 205; Super, omitted]. U. J. citations The breadth of suсh follow power exemplified diversified cases which have widely recent ing plethora police been held to be exercises of un legitimate power all N. J. A. der 40:48-2: an ordinance the re requiring — v. Nutley Forney, moval of excrement Town 116 dog N. J. an Super. 1971); 567 Ct. ordinance (Cty. requiring security emergency owners to multiple dwelling post — Coun., & Mayor House Coun. v. Apt. Ridgefield, repairs N. J. aff'd N. J. 1973), 87 Div. 128 Su Super. (Law 123 192 Div. an 1974); pre- ordinance per. designed (App.
217 — Teaneck, an or supra; v. Summer blockbusting vent — al. v. et Bor. Inganamort, rent controlling dinance Lee, al., an licens J. 521 ordinance et 62 N. (1973); Fort —(cid:127) solicitations make personal real estate brokers who ing Schoem, al., N. J. 588 et 50 (1967); et al. v. Mogolesfsky, — Jersey New building an contractors licensing ordinance an or supra; E. Brunswick Mayor, Tp., Ass’n v. Builders of commercial the size and regulating placement dinance — Shoes, 60 N. Boston Juvenile J. State v. signs — Yellow Cab rates taxi regulating (1972); Coun., Passaic, J. Super. v. 124 N. (Law Corp. one’s 1973); preventing presenсe Div. an ordinance (cid:127) — n Caruth, v. Dumont Borough after dark municipal park an or 1973); Dumont J. Super. (Mun. — Coast Cigarettes machines cigarette dinance licensing Sup Coun., Branch, Sales, J. 121 N. Inc. Mayor, Long regulating Div. an ordinance (Law 1972); per. — v.Co. Vending Silco Automatic boxes juke
placement Puma, J. Div. 1970) 108 N. Super. (App. . distilled, fundamental essences eases are three
When these In each instance the can be from residue. extracted in question had find that the ordinance (1) only court health, wel- safety or related to the reasonably general residents; did not in- fare of the ordinance (2) the local *12 and regulation; volve matter State-wide subject requiring contravene any specific statutory the ordinance did not (3) Central Motors limitation. See Gundaker or constitutional Gassert, dismissed, v. N. J. 71 354 23 U. appeal L.Ed. 1533 77 S. Ct. 1 2d (1957). me present municipal seems obvious to that the fairly
It the of stan- tripartite within bounds ordinance remains under is, therefore, and valid of police power dard exercise A. to and con- 40:48-2, N. J. S. without further reference N. J. S. A. 40: narrowly more sideration the construed 48-2.3.
218
II ordinance, attack pursues Plaintiff further his has violated that due Numerous cases process. claiming involved, held where fundamental is not right have that merely exer- requires power due be process police The demands of due were sum- reasonably. process cised marized Justice Hall: *(cid:127) * * regulation arbitrary unreasonable, [T]he must not be or capricious, selected must have a real and means substantial rela object sought attained, regulation proscrip tion to the to be and reasonably tion must and calculated to meet the evil not exceed the substantially partake need or affect uses do not problem sought offensive of those character which cause the to be Holding Borough Manasquan, [Kirsch
ameliorated. Co. v. 59 N. J. (1971)]. Gassert, See also Gundaker Central Motors v. supra, Newark, N. 71; J. v. Bd. Schmidt Adjustment, ; N. J. 405 Gabe Collins Inc. v. (1952) Realty, City Mar gatе J. City, Super. Div. Larson (App. 1970); al., et N. J. Mayor, Super. 365 Div. (Law 1968). Mr. Sente, naturally, does not argue municipalities cannot create ordinances to protect public health, wel- fare does, however, He safety. contend that the selected unduly and, therefore, means were inappropriate restrictive and unreasonable. ordinances cover
Housing three general subjects: (1) e., facilities, maintenance necessary i. ventila- lighting, toilets; tion, sinks and (2) limitation of density of occu- pancy by prescribing minimum floor area for a specified number of occupants; (3) standards of maintenance and e., cleanliness i. building, elimination of rodents, ver- min, dampness general unsanitary conditions.
It is well recognized adoption such ordi- nances, the municipality has wide discretion as means utilized to meet the public need evil; suppress as long the means are reasonably related to a legitimate objective, an ordinance will not substantive violate due proc-
219
York,
502,
505,
54 S. Ct.
78
Nebbia v. New
291 U. S.
ess.
Hackensack
L.Ed. 940
Del Vecchio v. South
See
(1934).
v.
Bellington
N. J.
44
Div. 1958);
49
Twp.,
Super.
(App.
Windsor,
Div.
East
32 N. J.
243
Super.
(App.
1954),
Tp. of
N.
That
aff'd,
legitimate objective
J. 558
(1955).
17
health,
In
morals.
safety
safeguarding
validity
all
favor of the
deed,
indulged
are
presumptions
aof
enacted
ordi
municipal
and reasonableness
properly
the burden is
plaintiff
nance. Consequently,
Haven,
v. Beach
Spiegle
demonstrate its unreasonableness.
17
831,
63,
N. J.
cert.
87 Ct.
L.Ed.
479,
46
den. 385 U. S.
S.
Ass’n v.
Racing
64
Garden
Hill
Cherry
2d
State
(1966);
v.
N.
McLarty
Borough
Ramsey,
42
J. 454
Tp.,
(1964);
Stahl, 248
F.
v.
Kroeger
270
2d 232
Cir.
F. 2d
(3
1959);
Paramus, 28 N. J.
v.
529
(3
1957); Moyant
121
Cir.
28 N. J. 529
Ward v. Montgomery Tp.,
(1959);
(1959);
Waldwick,
Braen,
28
J. 476
Inc. v.
(1958).
Samuel
a relation between
Authorities have held that there exists
his
emotional
space
individual's
living
physical,
Lake,
v.
Inc.
This
in Lionshead
Court,
mental well-being.
344
10 N. J. 165
dismissed
Twp. Wayne,
(1952), appeal
Ct.
L.Ed.
has said:
97
708 (1953),
U.
73 S.
*
*
proof
may
mini-
there are
We
notice without
formal
take
housing
may
go
im-
risk of
below which
without
mums
one
* *
*
pairing
173].
N. J. at
[10
those
therein.
health of
who dwell
176;
see
also
of Justice Jacobs
concurring oрinion
See
J.
(App. Div.),
v.
54 N.
Brundage Randolph Tp.,
Super.
Pa.
Medinger,
J. 555
aff’d,
Appeal
30 N.
(1959);
Town
;
Corning
A.
(Pa.
1954)
2d 118
Sup.
Ontario,
(N.Y. Sup.Ct.
Misc.
121 N.Y.S.
2d
McQuillin,
1968),
ed.
Corporations
1953);
Municipal
(3d
Annotation,
of zoning
and construction
24.545;
“Validity
§
con
cubic
minimum floorspace
prescribing
regulations
“Zon
I-Iaar,
Plaintiff does dispute widely does, however, conten- tion. He with defendants’ disagree tion that since the and the ordi- concededly exists relationship is, therefore, nance has objective, it legitimate governmental a valid and Clifton police sup- exercise of power. reasonable the ports reasonableness of its the relying ordinance of Mr. sanitary inspector affidavit licensed Palfreyman, New that Jersey and health officer of Clifton. He testified and, fact, floor they the mínimums were space proper, substantially were identical the mínimums suggested New promulgated Jersey model State Hous- proposed Code and United ing sample suggested by States Public Health Service.
In I addition, may take notice the fact míni- that mums in the Clifton closely ordinance are comparable mínimums recommended in various sets standards pre- pared by the expert staffs of the Officials Confer- Building America, ence the International Conference of Building Officials, and the Southern Building Code See Congress. Problems, National Commission on Urban Building American City, H.Doc. No. 91st Cong., 1st Sess. see also (1968); N.J.A.C. 5 :10-6.3. Indeed, staff expert of the National Commission on Urban Problems strongly doubted the of the adequacy foot square person per minimum at issue here. Id. 278-79.
Plaintiff, on hand, the other although every given oppor- no tunity, produced evidence regarding the unrea- alleged sonableness of the ordinance and, therefore, failed to sustain his proof. burden of While I concede that the ordinance is a matter drafted, that more carefully could have been council. municipal deciding propriety in such limitations [I]n the constitutional of the principles guided by a reform measure we are the familar might have “statute is not invalid under because it Constitution * * * gone did,” legislature “strike at farther than need not * * * may step time, one evils at the “reform take all same time,” addressing problem phase at a which seems itself to the Morgan, legislative U. S. [Katzenbach most acute mind.” 641, 657, ; 1717, 1727, (1966) Ed. citations 86 S. Ct. 16 L. 2d 828 omitted]. *15 thus, was, under R. 4:46-2 Summary judgment properly Judson v. granted since no of fact existed. genuine issue & 67, Bank Trust 17 N. J. 73-75 Peoples Westfield, Co. of (1954).
A
is, however,
There
one
and
significant
established excep
tion to
above
standard,
due process
and
is,
course,
where аn ordinance affects a fundamental
constitutional
In
right.
these instances,
state is
obligated to demon
strate a
state
compelling
interest
order
sustain the
statute. Memorial
v.
Hospital Maricopa
415
County,
U. S.
250, 94
1076,
S.Ct.
39
Wade,
L.Ed.
306
2d
Roe v.
(1974);
113,
410 U. S.
705,
93 S.Ct.
222 v. 388 U.S.
625,
Loving
Virginia,
L.Ed.
(1923);
67
1042
1817,
L.Ed.
Sherbert
1, 87 S.Ct.
2d
(1967);
L.Ed,.
Verner,
2d
384 U. S.
S.Ct.
Illinois,
405 U.S.
S.Ct.
Stanley v.
(1963);
Plaintiff contends that even affected, inter directly indirectly were were they certainly fered with. I did Appel must state unequivocally, Division, late or that there is an iota of that this proof dinance abor control, fosters or indirect birth compulsory tion or has demonstrated sterilization It not been programs. nor has or any evidence beеn that the of the offered effect social, dinance any is discriminate unlawfully against or economic ethnic If I that this ordinance group. concluded I enacted would strike any purposes, above Nor, down. ma despite contrary suggestions or jority, indication, is there the record any either within it, exclusionary outside ordinance is tantamount zoning. There is evidence exclusionary purpose no effect. This is reasonable plainly simply justified health measure. It useful perhaps to note National Commission on Urban Problems, which has issued one of the most forceful and persuasive denunci *16 ations of exclusionary zoning now practices available, Na Problems, tional Commission on Urban Building the American City, Doc. No. 91st 1st Sess. Cong., 18-20, 199— H. 234 (1968), expressly distinguished minimum floor space in housing codes, id. requirements at and went on to that firmly present minimum floor urge space standards were and should be increased to far figures greater inadequate than by those Id. adopted Clifton. at 278-79. ordi This clearly nance is simply health measure.
I cannot find that plaintiff was significantly discouraged in the of any exercise of his fundamental Indeed, rights. this conclusion is supported by only court to consider of a constitutionality municipal ordinance substantially similar the present one. In Nolden v. East Cleveland N.E. Commission, (Com. 2d 12 Ohio Misc. a valid as was upheld an ordinance such 1966), Pleas Ct. read: The ordinance of police power. exercise fifty dwelling Every hundred and at least one shall contain until occupant thereof square (150) for the first habitable floor area feet of square (100) habitable additional feet hundred at least one and floor area for any square occupant thereof, every shall in no case but additional fifty (250) dwelling two hundred and less than unit contain 423]. E. 2d [232 N. floor area. of habitable feet housing that the purposes reasoned Ohio court words, in other power; scope police were within code were: they * *(cid:127) * necessаry to minimum standards and enforce establish structures, sanitary safe, dwelling all structures
make and maintain hazards, habitation and bene- fit human health from fire and free general 423]. [232 N. 2d at E. welfare. ficial to the court said: concluding, In appear court, classifica before this it would evidence From the footage per person by square means to the suitable end tion
view, com health and welfare of the a definite relation to the has munity classification. There has a reasonable basis for and is thus process.” appellants’ deprivation “due constitutional no been * * * 426]. E. 2d at [232 B on due statute again challenges process Plaintiff an irrebut- contends that creates He grounds. the factual circumstances supported presumption table a health hazard is created when- it is presumed in that not met. footage requirements minimum are ever the Court has reviewed Supreme recently States The United was at- statutory presumption of cases where а number Illinois, Stanley In process grounds. on due tacked 1208, 31 L.Ed. 645, 92 S.Ct. U.S. 2d for ex- unwed father was an unfit it was assumed ample, custody. for the child He was purpose awarding parent *17 as a an his fitness denied opportunity prove parent-guard- state ian. said that the had interest legitimate The Court child, but in- the the noted that the state’s welfare the fit. erest be minimal if father were shown to be would The Court found that convenience to the state in as- than could not suming unfitness, justify rather proving Court hearing. the father In denying concluding, stated: always presumption cheaper Procedure in- is easier than here, when, procedure
dividualized
fore-
determination.
But
competence
care,
closes the determinative
issues of
it ex-
when
present
past
plicitly
formalities,
disdains
realities
deference to
needlessly
important
running roughshod
risks
over the
interests
parent
656,
[405
both
and child.
It
therefore cannot stand.
U.
atS.
562],
1215,
92 S. Ct.
31 L. Ed. 2d at
at
Again, the Court dealt with a similar problem in Vlan
Kline,
dis
U.S.
S.Ct.
225 Indeed, 60 evi- days health. plaintiff given produce unreasonableness, which he totally dence the ordinance’s fact, a felt that failed do. As matter of wife plaintiff’s their to their conditions were not suitable relation living con- I, therefore, size. can find no merit family plaintiff’s tention, pro- it became moot when he was remiss in since no evidence. ducing contrary
IV
Plaintiff continues
attack on
his
the ordinance:
this time
utilizing
second
potent
prong
Eourteenth Amend-
e.,
ment, i.
Protection clause. Plaintiff
equal
claims that
the ordinance violates the
protection
equal
“by
clause
its
harsh
on
impact
families, the
large
and racial
poor
minori-
ties.” Defendant counters
stating
ordinance does
not discriminate since it
is “eminently
to the
responsive
needs
all citizens for minimally adequate housing.”
protection
equal
clause does not prevent
the State
from classifying pursuant
to its police power and permits
Doud,
wide discrеtion in
so.
v.
doing
Morey
354
457,
U.S.
1344,
77 S.Ct.
226 Reed, 251, 30 L.Ed. 71, v. 404 U.S. S.Ct. 2d (1971) Baird, Eisenstadt v. 405 U.S. 92 S.Ct. Royster L.Ed. Guano Co. Quoting 349 (1972). 2d from L.Ed. 40 S.Ct. Virginia, U.S. the Reed Court stated: * * * reasonable, arbitrary, and must A “must classification having ground re- rest some of difference a fair substantial *19 object similarly legislation, persons cir- lation to so all the the that 254, 76, at U. S. 92 S. Ct. [404 cumstanced shall treated alike.” at 229], L. Ed. 30 2d criterion was created this “substantial relation” Apparently, the to moderate the extremes of two traditional between of a See Search of Doctrines Gunther, Evolving tests. “In Protection,” A model for a Newer Court: Changing Equal Harv. L.Bev. 86 1 (1972). consid Supreme recently
The United States Court has on wealth in San protection challenge ered based equal 93 S.Ct. Antonio Dist. v. 411 U.S. Rodriguez, School 959, 93 S.Ct. 1278, 36 2d reh. 411 U.S. L.Ed. den. there L.Ed. 418 Court observed that 2d (1973). in common the were two characteristics held prevalent because of (1) litigation: in wealth discrimination poor completely members of this class are their the impecunity, a conse- (2) unable to for some desired benefit pay an absolute of meaningful op- there is deprivation quence, But, clearly to that benefit. Court enjoy portunity evaluated, does protection where wealth is equal stated that not involve equality precisely equal absolute advantages, does alone compel scrutiny. nor wealth disсrimination in Amen v. Dear This same theme was reiterated horn, Mich. F.Supp. (E.D. 1973). City plans for a section of the to be demolished and rezoned city called The Amens asserted activity for business. that Dearborn’s violation since the clear protection constituted equal in area only was instituted with the lowest program ance Valtierra, on James 402 U. Relying families. income held the court L. Ed. 2d 137, 91 S. on low heavily fall more because tended that provision constitute a violation not necessarily income families did there no evidence clause. Since protection equal low income fam intent any specific against to discriminate ilies, was no violation of equal the Court held that there protection.
Sente with basically premise begins require- ments of the ordinance contributed have to the segregation in from poor cities the suburbs. wealthy He argues the resultant should segregation suffice protection However, invoke the equal clause. has clause been used to strike those only ordinances expressly e., discriminate of a i. against members minority, discrim- inatory motive or must be purpose found. As previously stated, no such motive is apparent The mu- case. nicipality simply wishes regulate health standards of its residents, which incidentally families, burden large whether be rich they or poor. Perhaps, families large, poor find it might relocate, more difficult to but this is not a reason for legitimate the lessening of necessary minimal *20 health standards. Recently, Boraas, in Village Belle v. Terre 416 U. S.
1,
228
Reed,
relationship
objective.”
[permissible]
Reed v.
to a
state
71, 76,
251,
U. S.
Accord, United States L. Ed. 626 (1973). 2d of this have The State municipalities attempted employ to limit the number of dwel- vаrious means occupants per common were two most methods either to use ling. which e. Gabe “family” unit, g., ordinance defined zoning City, Collins J. Realty, Margate Inc. N. Su- Bor- 1970) Div. and Kirsch Co. v. per. Holding (App. 59 N. ough J. 241 or Manasquan, to use the gen- eral under J. S. A. virtue of police By 40:48—2. power statutes, of two distinct authority end result is the same. The ordinance zoning applies restricted specific area from the enacted distinguishable power; under the general police the latter to the applies is, entire The area restricted community. however, only characteristic. In each distinguishing instance, defini- the' “family” tion found to be excessive and sweepingly broad, overly precluded many since harmless dwelling even no health, uses threat to the though safety was, therefore, welfare existed and legally unreasonable. In however, Hall Justice in Kirsch concluding, Co. v. Holding Borough supra, Manasquan, suggested that the municipal- *21 were not without to deal with power ities the problems in a manner similar to that used in the Clifton ordinance: * * * intensity use, e., overcrowding dwelling When i. units facilities, ., might is a factor . that conduct . consideration quite properly given zoning housing provisions, be or code general application, limiting would have to be of number of occu- pants sleeping in reasonable relation to available and bathroom requiring per facilities a minimum amount of habitable floor area * * * occupant. [59 N. J. 254]. at should,
It be noted Belle taken appears have Terre Co., a view However, different from Kirsch supra. Holding goes this to strengthening my position in the in present stance. a Certainly, if can municipality regulate type in a occupants "economic and so living single dwelling by cial a health ordinance legislation,” number limiting the persons per just unit much more In compelling. instances, both limited, the number are effectively of people for and, one social and reasons, economic in the instant mat ter, for health In reasons. my opinion, the latter is far by a more powerful former, reason than the yet need .former only with comply the rational relations test under the equal protection clause.
Y This bears substantial relation to the health, welfare safety, and morals of the people Clifton. Congestion, density and lack of space are the most forceful contributions to the transmission of disease.
health of an individual is no affair. longer private Housing and health bear an irrefutable relationship. — Whatever inadequate housing contributes to- illness —
it is substantial with our segments of must population halted; continue to be least must made in beginning the area of limitation of density as to occupancy existing properties. with minimum Compliance floor area spe- cified number of occupants can be limiting realized — number of therein occupants particularly rooms which are rented. This is not an ordinance that was enacted with an "improper If I purpose”. remotely believed that *22 ex- to intended, majority, as suggested
ordinance was minority from groups” clude families “poor predominantly who any already or was intended to of those people exclude I are from our would the first society, disinherited it down. strike because these with the
Merely properties complied require- constructed, ments in effect the time were they does at mean that cannot be to reasonable they subjected regula- tions and ordered to with new at this comply requirements This time. be the criterion to determine if the cannot virtue of this ordinance acted municipality by reasonably in of Our of limiting density occupancy. knowledge health from resulting in communities has crowding people over years. which was not deemed es- expanded That 25 years sential has become in the mind ago important of an expert. Heher Earruso v. Bd. Health East Hanover Justice of of J. 120 N.
Twp., L. said: (Sup. 1938), * * * obligation compact is a fundamental It tbe social to en- rеasonably designed dure burdens that are mere incidents measures * * * [120 tbe essential common N. J. L. 468]. serve interest. Hills, Homes, Lake Intervale Inc. v. Parsippany-Troy In J. Collins v. 28 N. Justice from Burling quoted Margate City, Board J. 200 : Adjustment (1949) * * * police property power, and All is held in subordination to the — person rights either of the correlative restrictions individual — negligible property order, deemed a are incidents the social community compared advantages loss as a with the resultant recompensed by not, indeed, fully [28 common benefits. if whole 437]. N. J. at acquire immunity An owner or does not property tenant That one of the the exercise of against police power. owner limitable of And neither governmental powers. least unhealthy to live in nor tenant has constitutional right or slum dwellings. of the ordinance is exercise present legitimate gen- of Clifton. police power
eral I would affirm. authorized me Mountain has Justice to state that he joins this opinion. Hughes
For dismissal —Chief Justice Jacobs, and Justices Hall, and Clifford —5. Sullivan
For Pashman and Mountain —3. afirmance —Justices SMALL, CLARA AS ADMINISTRATRIX AD PROSEQUENDUM PLAINTIFF-APPELLANT, ROCKFELD, OF THE ESTATE OF M. LINDA ROCKFELD, . ROBERT D. DEFENDANT- v RESPONDENT. Argued October 1974 Decided December 1974.