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Date: 07-16-2001

Case Style: United Property Owners v. Borough of Belmar

Case Number: a2938-99

Judge: Carchman

Court: Superior Court of New Jersey, Appellate Division

Plaintiff's Attorney: Randy T. Pearce argued the cause for appellants in A- 2938-99T5 and respondents in A-2941-99T5 (Pearce Fleisig, attorneys; Mr. Pearce, of counsel and on the brief; Jennifer A. McAdam, Catherine A. Muldoon and Jennifer Brigliadoro, on the brief).

Defendant's Attorney: Andrew T. Fede argued the cause for appellants in A-40- 00T5 (Contant, Atkins, Rogers, Fede, Keane & Hille, attorneys; Mr. Fede, of counsel and on the brief).

Karl P. Kemm argued the cause for respondents in A- 2938-99T5, appellants in A-2941-99T5 and respondent in A-40-00T5 (Philibosian, Russell, Killmurray & Kinneally, attorneys; Mr. Kemm, of counsel and on the brief).

Description: These three appeals require us to determine the validity of a comprehensive local ordinance governing summer rentals at a shore community. Plaintiffs United Property Owners Association of Belmar, an association of approximately eighty property owners in Belmar, and three of its constituent members Nicholas Zampetti, Laura Gifford and John Roland (collectively plaintiffs), brought an action against the Borough of Belmar, Kenneth Pringle, Mayor of Belmar, and Jack Manutti, Patricia Provenzano, Andrew Gallagher and Doug McGill, all members of the Borough Council (collectively "defendants" or "Belmar") seeking to invalidate the Belmar Ordinance 1999-16 (the Ordinance). After an extended trial, the judge voided certain sections of the Ordinance and upheld others. Plaintiffs appeal, and defendants cross-appeal.

Plaintiffs contend on appeal that the judge erred in failing to invalidate the Ordinance provisions that: (1) limit occupancy for summer rentals only; (2) impose more restrictive fire regulations than required; (3) impose liability for occupancy violations on all tenants; (4) increase licensing fees; (5) prohibit exceeding the occupancy rate at night; and (6) restrict noise. Plaintiffs also claim selective enforcement; assert that the Ordinance constituted a taking or inverse condemnation; object to the judge's failure to invalidate the entire Ordinance instead of selected provisions; and contend that their attorneys' fee, awarded under the Federal Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C.A. 3601-3631 (the Act) was inadequate.

Defendants on their cross-appeal contend that the judge erred in invalidating those sections of the Ordinance that: (1) require that when a unit is rented to a family with a school-aged child over the winter, the summer rental cannot begin until the end of the spring term of the school year; (2) compel the submission of information regarding tenants on applications for certification; (3) prohibit temporary certifications; (4) proscribe the use of flammable materials as partitions; and (5) prohibit commercial signs and strings of lights.

The trial judge, in a well-reasoned and thoughtful written opinion, upheld the validity of the Ordinance, including a prohibition on the presence of the number of occupants during certain hours, but determined that certain provisions were invalid. We conclude that the trial judge correctly determined the Ordinance was constitutional, was not selectively enforced, properly imposed liability on all tenants for occupancy violations, did not constitute a taking, did not impose punitive fees, and did violate the Act. We further conclude that the judge's award of attorney's fees pursuant to the Act was not inadequate.

We determine, however, that the judge erred in declaring certain provisions of the Ordinance invalid, including the portions of the Ordinance that prohibit: (1) temporary certificates of inspection for summer rentals; (2) the use of flammable materials as partitions; and (3) commercial signs and strings of lights on summer rentals.

* * *

Click the case caption above for the full text of the Court's opinion.

Outcome: Affirmed in part and reversed in part.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Reported by Kent Morlan

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