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Jersey Nonprofit Corporation,






November 5, 2014


Argued September 23, 2014 Decided

Before Judges Fisher and Accurso.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1073-11.

Gary M. Marek argued the cause for appellant (Law Office of Timothy D. Scaffidi, attorneys; Mr. Scaffidi and Mr. Marek, on the brief).

Samuel J. Myles argued the cause for respondent (Holston, MacDonald, Uzdavinis, Ziegler, Lodge & Myles, attorneys; Mr. Myles, on the brief).


In this appeal, we consider whether the trial judge erred in sustaining a challenge to a 2004 ordinance, which requires every rental property in the municipality to "provide a minimum of one off-street parking space for every one authorized occupant 18 years of age or more." In granting summary judgment, the trial judge determined that the ordinance was overly-broad and unreasonable. We conclude the matter was not ripe for summary judgment because the record is largely silent on whether there was a rational basis for the ordinance's adoption.

Ordinance No. 379-5(I), originally adopted on July 27, 2004,1 declares that

Every rental facility shall provide a minimum of one off-street parking space for every one authorized occupant 18 years of age or more, as approved by the Housing Officer pursuant to the following requirements. For owner-occupied rental facilities, such requirements shall be in addition to those spaces required for residential use other than the rental facility portion of the premises. Said parking spaces shall be a minimum of 10 feet by 20 feet. Parking areas must be maintained and configured so as not to create a safety hazard to the tenants using the areas or to any drivers or pedestrians on the public right-of-way, and in such a manner that does not cause inconvenience to the occupants.

Defendant Borough of Glassboro (the municipality) imposes no such parking requirement on non-rental properties.

Plaintiff Glassboro Guardians, a nonprofit corporation alleged to be comprised of "individuals who own rental properties" within the municipality, filed this action on June 20, 2011. Plaintiff claimed the ordinance: (a) is arbitrary, capricious and unreasonable because it purports to "regulate behavior best regulated outside the framework of municipal zoning"; (b) was adopted without the benefit of enabling legislation and, therefore, its enactment constituted an ultra vires act; and (c) violates the equal protection clauses of our state constitution and the New Jersey Civil Rights Act, N.J.S.A. 10:6-2. Both sides moved for summary judgment, and the judge, by way of an oral decision, first rejected the municipality's arguments that plaintiff did not have standing and that the forty-five-day time period set forth in Rule 4:69-6(a) barred plaintiff's suit, and ultimately concluded the ordinance was overly-broad and unreasonable.

The municipality appeals, arguing that: plaintiff lacked standing; the action should have been held time-barred; the ordinance was authorized by statute; and plaintiff failed to demonstrate the absence of a rational basis for the ordinance. We turn first to the timeliness and standing issues.

The municipality argues that plaintiff's suit calls into question the propriety of governmental action and should, therefore, be viewed as an action in lieu of prerogative writs. See Pressler & Verniero, Current N.J. Court Rules, comment 7 on R. 4:69-6 (2015). To be sure, the timeliness of actions in lieu of prerogative writs is generally governed by Rule 4:69-6(a), which declares that such actions be commenced within forty-five days of the accrual of the right to review. But the municipality's contention that this is an untimely action in lieu of prerogative writs because it was filed seven years after the ordinance's enactment is an oversimplification because we have also recognized that challenges to the constitutionality of municipal ordinances may be viewed as declaratory judgment actions, N.J.S.A. 2A:16-50 to -62, which are not subject to any specific time bar. See Ballantyne House Assocs. v. City of Newark, 269 N.J. Super. 322, 330 (App. Div. 1993).

That is, there are circumstances where a challenge to municipal action focused more on the ramifications of municipal action rather than the manner in which the municipality acted more comfortably fits within the parameters of the Declaratory Judgment Act. In addition, the forty-five-day time limit may be enlarged, pursuant to Rule 4:69-6(c), "where it is manifest that the interest of justice so requires." See Ballantyne House, supra, 269 N.J. Super. at 330 (recognizing, in relying on Brunetti v. Borough of New Milford, 68 N.J. 576, 585-88 (1975), that claims challenging the constitutionality of municipal ordinances "have long been afforded the benefits of such enlargements of time"). We have also recognized that a claim that an ultra vires adoption of an ordinance presents a ground for an enlargement of time to commence the action. Willoughby v. Planning Bd., 306 N.J. Super. 266, 277-78 (App. Div. 1997). Indeed, when an ordinance is constitutionally-infirm, it can be said each application constitutes "a fresh wrong," Jones v. MacDonald, 33 N.J. 132, 138 (1960), or "continuing violation," Reilly v. Brice, 109 N.J. 555, 559 (1988), which resets the purportedly applicable forty-five-day time limit.

The record reveals that the challenge to the ordinance here does not relate to the manner in which it was adopted but, instead, to the legitimacy of its reach. Moreover, we reject the notion potentially at play here that all property owners, including those who came into ownership, or whose property interests were not impacted, until more than forty-five days after the ordinance was adopted, would be forever barred.

We also find no merit in the municipality's assertion that plaintiff lacked standing. Certainly the lack of clarity regarding plaintiff's make-up poses questions that also concerned the trial judge,2 but plaintiff filed a certification of one of its members who claimed he owned property impacted by the ordinance. This, as the trial judge correctly determined, was sufficient. Our liberal standing requirements compel a rejection of this defense. See Right to Choose v. Byrne, 91 N.J. 287, 313 (1982) (reasoning that even a "slight additional interest" beyond those possessed by an ordinary citizen confers standing); Al Walker, Inc. v. Borough of Stanhope, 23 N.J. 657, 666 (1957) (finding plaintiff, a seller of trailer homes, had standing to challenge an ordinance restricting trailer homes in a municipality four miles from plaintiff's place of business).

Having rejected the municipality's procedural arguments, we turn to the merits and the well-settled principle that municipal ordinances are presumed valid and will be upheld where "any state of facts may reasonably be considered to justify" them. Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 447 (1980); see also Berk Cohen Assocs. at Rustic Village, LLC v. Borough of Clayton, 199 N.J. 432, 445-47 (2009). This standard arises from an understanding that "the underlying policy and wisdom" of an ordinance is left to the governing body, not the courts. Quick Chek, supra, 83 N.J. at 447. Because municipal actions are presumed proper, a challenger bears a "heavy burden" of showing an ordinance is arbitrary, capricious or unreasonable. Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998). Consequently, in considering a challenge, a court must examine "the relationship between the means and ends of the ordinance." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002). This question and the ultra vires argument may be further impacted by whether the ordinance was adopted pursuant to a municipality's zoning powers or its exercise of general police powers.

This analysis cannot occur, however, in the absence of a fully-developed record regarding the municipality's goal and how it pursued that goal in enacting the ordinance. Here, plaintiff persuaded the trial judge, who was also influenced by a very similar but unpublished opinion of this court, that the goal of the ordinance was not as it appeared on its face; that is, the judge invalidated the ordinance because she believed the municipality was attempting to limit property owners' ability to rent to college students in the apparent guise of regulating parking within the municipality. The problem, however, is that there is nothing in the record to illuminate the municipality's intention; consequently, it cannot be said on this rather bare record whether the ordinance constituted a legitimate exercise of the municipality's powers or whether the enactment was intended to obscure an improper motive, was merely pretextual, or had as its goal the curing or prevention of "anti-social conduct in dwelling situations." Borough of Glassboro v. Vallorosi, 117 N.J. 421, 426 (1990) (quoting Kitsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 253-54 (1971)). For example, in the unpublished opinion upon which the trial judge relied, the municipality conceded its ordinances were enacted in response to complaints about college-student misconduct, i.e., loud and overcrowded parties in single-family structures. Whether this or any other circumstances formed the ground for the municipality's action here has not been established a circumstance fatal to a summary judgment movant. Because the record is mostly silent as to what the municipality sought to accomplish when enacting the ordinance or whether it had a rational basis for taking its action, the judge's disposition of plaintiff's challenge to the ordinance was premature.

The order under review is vacated and the matter remanded for further consideration following development of the record. We do not retain jurisdiction.

1The ordinance was amended on a handful of occasions since its adoption in 2004, but in no manner that would impact the issues at hand. For example, the ordinance was amended in 2009 to raise the age requirement from seventeen to eighteen.

2The judge observed that she was "not sure what all the secrecy stuff is about" but found an absence of "dispute that [plaintiff's members] are owners of rental properties."