Homeowners challenge one-per-year CO limit
Attorney says city seeks to outlaw seasonal rentals
BY CHRISTINE VARNO
Staff Writer

LONG BRANCH - An attorney representing almost 50 Long Branch property owners is challenging the city's zoning ordinance aimed at limiting seasonal rental of properties.

Ocean Township Attorney Gary Fox filed a trial brief on behalf of his clients in state Superior Court in April and is currently awaiting a court date to be scheduled to argue that the city's ordinance that limits properties to one certificate of occupancy, or CO, per year is unlawful.

"If these ordinances are upheld, a court is going to have to undo 30 years of decisions in New Jersey," said Fox in an interview last week.

"What the city is trying to do is outlaw seasonal rentals," he said.

Attorney Sharon H. Moore of Gebhardt and Kiefer, Annadale, is representing the city in the case and could not be reached for comment by deadline Tuesday.

In court, Fox said he plans to argue several points, including that the ordinance is discriminatory and that the ordinance is an attempt to socially engineer the city.

"The ordinance discriminates based on ownership versus rental tenants," Fox said.

"I can sell a property every day throughout the year and get 365 CO's, but I can't get two CO's if I rent.

"That is plain arbitrary," he said. "It is plainly discriminatory."

Fox added that the ordinance is attempting to limit rental tenants in the city.

"They want homeowners," he said. "They don't want renters and in particular, they do not want college students.

"It is obviously clear that what the city is trying to do is regulate social conduct throughout the city," he said. "Zoning ordinances are not supposed to be used to deal with social conduct."

The case dates back to 1999, according to Fox, who said the City Council was swamped by residents in the Elberon section of the city complaining about disorderly rental tenants in the area.

"Every landlord will get a nightmare tenant at some point," Fox said. "I personally do not wish a bad neighbor upon anyone.

"But I am not in municipal court with my clients for tickets or anything," he said.

In 2004, the city adopted ordinance 26-04, limiting properties within single-family zones to one CO per year.

At the June 12 municipal meeting, the City Council adopted ordinance 24-07 to amend the original zoning ordinance, extending the restriction to all single-family homes in the city.

"Ordinance 26-04 had as an intended purpose to stabilize the neighborhood quality of life of residential areas of the City of Long Branch," according to ordinance 24-07.

"The Council of the City of Long Branch has always felt that ordinance 26-04 and as well as the proposed amendment was responding to the request of numerous citizens and neighborhood groups that wanted to have stability within its neighborhoods," the ordinance states.

According to City Attorney James Aaron, the city was advised by litigation counsel to make the ordinance more inclusive of all residential zones as well as some commercial zones.

"The city was given advice ... that it would put the city in a better position," Aaron said in a previous interview.

The zoning ordinance, according to Fox, is a political ploy by the city and was an "illegal political expedient" measure.

"People that do not live here year round, do not vote," Fox said. "Year-round residents vote.

"If you are an elected official and your constituents come up to you and scream at you about a problem, you are going to do something to satisfy the people," he said. "So you adopt an ordinance that the court will throw out."

Other points that Fox plans to argue include: restricting property owners to one CO a year is illegal; the ordinance is overly broad; and violates the equal protection code.

According to Fox, there are 5,758 single-family rentals in Long Branch and according to a report released from the city, only 73 of those single-family homes were addressed by the initial zoning ordinance.

"That is 1 percent of the total number of single-family rentals," Fox said. "Now 99 percent of single-family homes are being restricted because of 73 properties.

"That is [overly] broad," he added.

Fox further explained that the city did not follow proper procedure in adopting the initial ordinance or its amendment.

"When you have a zoning ordinance and you want an exception, the [Municipal] Land Use Law already set up a procedure," Fox said. "You have to go to the Board of Adjustment.

"You have to comply with the law's process. The city did not do that," he said. "They went straight to council."

Lastly, Fox said the city violates the equal protection code by unfairly discriminating between homeowners and renters as well as relatives versus unrelated persons occupying a single residence.

"There is no rationale," Fox said. The majority of his clients own homes in the Elberon and Elberon Park section of Long Branch, according to Fox.

Many have principal residences in Brooklyn, N.Y., and purchased the local homes to live in during the summer and rent out in the winter months, according to Fox.

A small number of property owners who Fox represents purchased the homes as investment properties and do not live in them at all, Fox said.

The case was originally to be heard in federal court, Fox said, explaining that at the time the initial ordinance was adopted, he called Aaron to say he was challenging the measure.

"I told him that he had an uphill battle and that no town has been able to do this and that I was going to file a motion to stay the ordinance until the court decides," Fox said. "The city agreed not to enforce the ordinance.

"But the court said nobody has been hurt by the ordinance and in federal court somebody needs to be injured. So it was dismissed," he continued.

"I then filed in state court because there is no requirement that someone has to be injured," he said.

"If I hadn't been so good to convince the city not to enforce the ordinance, then it would have been heard in federal court," he continued.

According to Aaron, the city has agreed to not enforce the ordinance until the case is decided in court.

"Right now there is no pressure because [my clients] are continuing to get COs," Fox said.