JACKSON ESTATES, L.L.C. v. THE JACKSON TOWNSHIP RENT LEVELING BOARD, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6755-03T16755-03T1

JACKSON ESTATES, L.L.C.,

Plaintiff-Appellant,

v.

THE JACKSON TOWNSHIP RENT

LEVELING BOARD, THE TOWNSHIP

COMMITTEE OF THE TOWNSHIP OF

JACKSON, THE TOWNSHIP OF JACKSON,

Defendants-Respondents.

___________________________________

 

Submitted: May 9, 2006 - Decided May 26, 2006

Before Judges Skillman and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, L-1853-02.

Henry N. Portner, attorney for appellant.

Steven N. Cucci, attorney for respondent, Jackson Township Rent Leveling Board.

Starkey, Kelly, Bauer & Kenneally, attorneys for respondents, Township Committee of the Township of Jackson and Township of Jackson (Terrance L. Turnbach, of counsel; Dina R. Khajezadeh, on the brief).

PER CURIAM

Plaintiff Jackson Estates, L.L.C., the landlord of a mobile home park, filed an action against defendants Jackson Township Rent Leveling Board ("Board") and Township Committee of the Township of Jackson, challenging the validity and constitutionality of Jackson Township Ordinance 22-02, adopted by the governing body on April 22, 2002. The ordinance, which amended the township's rent leveling ordinance, was passed in response to mobile home park owners who were requiring their tenants to convert from oil to gas or electric heat, pay the cost of conversion and, in certain circumstances, transfer the costs and responsibility for underground storage tanks located at each unit to the tenant of the respective unit. The ordinance provided that tenants who were required by the owner to convert the energy source of their units, such as oil to gas heat, "may be entitled to a reduction in rent." It further prohibited the mobile home park owner from: (1) passing on the costs of removal, filling or destruction of underground storage tanks in the park to the tenants, unless the tenants installed the tanks, or (2) making such removal, filling or destruction a condition of approving the sale of a mobile home.

Jackson Estates argued that the ordinance had no rational basis; it conflicted with the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -28.11z; it conflicted with our decision in Hanover Mobile Home Owners Assoc. v. Hanover Vill. Assoc., 316 N.J. Super. 256 (App. Div. 1998); and it constituted a taking without just compensation.

Judge Clyne granted the Board's motion for summary judgment, stating:

The essence of the plaintiff's position before the Court is to focus on the alleged wrongful conduct with regard to the passage of the ordinance in question. The Rent Leveling Board has jurisdiction to hear an application if a tenant asserts that the landlord has attempted to . . . improperly impose a cost on the tenant. That fact, however, would not give rise to an action against the Board in as much as the Board is fulfilling its obligation to enforce an ordinance. And the question of whether or not that ordinance passes constitutional muster is not something with which they would deal with nor could they deal with.

Jackson Estates does not appeal that ruling. The court then permitted the Board's counsel to act as co-counsel for the remaining defendants.

Jackson Estates submitted an expert report regarding problems with contamination from underground storage fuel tanks, the court heard argument, and rendered a decision upholding the ordinance. In doing so, the court fashioned an order dated July 13, 2004, which is the subject of this appeal, which effectively modified the ordinance to address the concerns raised in the complaint. On appeal, Jackson Estates renews the same arguments it made to the trial court. We are not persuaded by any of these arguments and affirm substantially for the reasons articulated by Judge Clyne on the record and in the July 13, 2004 order. R. 2:11-3(e)(1)(E).

Affirmed.

 
 

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A-6755-03T1

May 26, 2006