The opinion of the court was delivered by BISCHOFF, P.J.A.D.
The issue presented by this appeal is whether the state has preempted the power of the City of Atlantic City to enact "an ordinance regulating the conversion of rental units to condominiums" and declaring a "moratorium on the conversion of any rental unit into a condominium for a period of one year" from passage of the ordinance.
On November 8, 1979 the Board of Commissioners of the City of Atlantic City adopted Ordinances 69-1979 and 70-1979 which regulate the conversion of rental units into condominiums. In enacting Ordinance 69-1979 the board found "that an emergency exists within the ... City with respect to the unavailability of rental space" and that "the advent of casino gambling has escalated property values ...," contributing to "the trend toward the conversion of rental units to condominiums...." The conversion of existing rental units to condominiums, the board continues, would remove them from the rental housing market, "forcing the displacement of a large number of residential tenants, many of whom are senior citizens or persons of low or moderate income levels." The board concluded that the acute housing shortage in Atlantic City and nearby municipalities will make it impossible for the displaced tenants to find decent housing at a price they can afford; that these tenants were unable to have anticipated or prepared to meet the radical changes in housing demands created by casino gambling, and that a "need exists for legislation to afford tenants relief from the situation without unnecessarily infringing on the property rights of the owner."
The board determined that "the maintenance of the current numbers of rental units available will foster and improve the health, safety and welfare of its residents by insuring the
The ordinance also provides for the appointment of a committee to study and "assess the impact of conversion on local housing needs" and "formulate a plan for maintaining and or increasing the number of rental units available." Finally, the ordinance requires registration of notices of conversion and provides for relocation assistance by evicting landlords.
Ordinance 70-1979, adopted the same day, prohibits any conversion, unless one parking space is provided on the premises for each condominium unit.
On November 9, the day after the ordinances were adopted, plaintiffs filed a complaint in lieu of prerogative writs against the City of Atlantic City, challenging the validity of the ordinances and seeking a restraint against their enforcement. The city filed an answer and the trial judge granted appellant tenants leave to intervene. Following a hearing on an order to show cause, the judge issued a letter opinion dated January 3, 1980, granting an interlocutory injunction against enforcement of the ordinances because the subject matter of Ordinance 69-79 appeared to be "preempted by state statutes," and Ordinance 70-79 appeared to be "barred by N.J.S.A. 40:8B 29 [46:8B-29], which prohibits zoning ordinances that discriminate on the basis
Defendants and intervenors moved in this court for leave to appeal and for a stay of the injunction pending appeal. We denied the motion for a stay but granted leave to appeal to consider plaintiffs' challenge to Atlantic City Ordinance 69-1979 on constitutional grounds and on the grounds that the subject of the ordinance had been preempted by state action. We accelerated disposition, electing to determine the appeal on the papers submitted on the motion pursuant to R. 2:11-2 and giving all parties opportunity to submit additional papers and be heard at oral argument.
On this appeal defendant City of Atlantic City and the intervenors contend:
It is now firmly established that N.J.S.A. 40:48-2 constitutes an abundant reservoir of police power granted municipalities by the Legislature. Inganamort v. Fort Lee, 62 N.J. 521, 536 (1973). Ordinances enacted in support of this police power carry a presumption of validity and there is a heavy burden on anyone seeking to overturn such ordinances. Hutton Pk. Gardens v. West Orange Town Council, 68 N.J. 543, 564 (1975). Moreover, legislative bodies enacting ordinances are presumed to act on the basis of adequate factual support and their enactments are presumed to rest upon some rational basis within their knowledge and experience. Id. at 565. And, it is now well settled that municipalities have power to enact a reasonable moratorium on certain land uses while studying a problem and preparing permanent regulations. Deal Gardens, Inc. v. Loch Arbour Bd. of Trustees, 48 N.J. 492, 499-500 (1967); Monmouth Lumber Co. v. Ocean Cty., 9 N.J. 64, 74-75 (1952); Cappture v. Elmwood Pk. Bd. of Adj., 133 N.J.Super. 216, 221 (App.Div. 1975); Meadowland Reg'l etc. v. Hackensack, 119 N.J.Super. 572,
However, an ordinance properly enacted and within the police power of the municipality will be invalid if it intrudes upon a field preempted by the Legislature. When the Legislature has preempted a field by comprehensive regulation, a municipal ordinance attempting to regulate the same field is void if the municipal action adversely affects the legislative scheme. Fair Lawn Ed. Ass'n v. Fair Lawn Bd. of Ed., 79 N.J. 574, 586 (1979); Summer v. Teaneck, 53 N.J. 548, 554 (1969). And
Justice Schreiber, in Overlook Terrace Mgmt. Corp. v. West New York Rent Control Bd., 71 N.J. 451 (1976), stated that pertinent questions for consideration in determining whether preemption had occurred, were:
The Legislature recently enacted comprehensive legislation regulating condominiums. The Planned Real Estate Development Full Disclosure Act, N.J.S.A. 45:22A 21 et seq., regulates the development, offering and sale of various forms of real estate development in which owners share common facilities or property interests, including condominiums. N.J.S.A. 45:22A-23(h). This act requires a developer to file a detailed registration with the Division of Housing and Urban Renewal before offering or disposing of any interest in a planned real estate development, and to provide a purchaser with an extensive public offering statement, N.J.S.A. 45:22A-29, and the Division is given broad enforcement powers. N.J.S.A. 45:22A-32 to 35. The Disclosure Act further provides for private, double damage actions to remedy any violations of the disclosure requirements. N.J.S.A. 45:22A-37. The Division of Housing and Urban Renewal, the administrative agency responsible for regulation under the act (N.J.S.A. 45:22A-24), promulgated comprehensive and detailed regulations. N.J.A.C. 5:26-1.1 et seq. Moreover, while the Disclosure Act provides a uniform means for regulating, investigating and monitoring planned developments, the Condominium Act, N.J.S.A. 46:8B-1 et seq., provides detailed structural guidelines for the creation of condominiums.
In 1976 the Legislature amended the Anti-Eviction Act, N.J.S.A. 2A:18-61.1 et seq., to afford residential tenants substantial procedural safeguards and the opportunity to obtain comparable housing when an owner converts an apartment building to a condominium. N.J.S.A. 2A:18-61.1(k); L. 1975, c. 311 (effective February 19, 1976). As amended, the act requires an owner who intends to convert an apartment building into a condominium to give tenants 60 days' notice of his intent to convert and to provide the tenant the full plan of conversion prior to serving notice. The notice of intention must inform the tenant of his right to purchase ownership in the premises at a specified price,
If a tenant decides not to purchase a condominium, the owner must give him three years' notice prior to instituting an action for eviction, and no action shall be instituted prior to the expiration of a written lease. N.J.S.A. 2A:18-61.2(g). The owner is further obligated to offer the tenant comparable rental housing when the tenant so requests within 18 months after receiving notice of eviction. N.J.S.A. 2A:18-61.11. Moreover, when an action for eviction is filed, the court must authorize up to five one-year stays of eviction with reasonable rent increases until the tenant is offered and provided a reasonable opportunity to examine and rent comparable housing. After the first of these stays is entered, however, the owner may prevent the entry of any further stays by paying the tenant hardship relocation compensation equal to five months' rent. Id.
In order to ensure compliance with its provisions, the amended Anti-Eviction Act vests the Department of Community Affairs with the authority to adopt rules and regulations setting forth the procedures to be followed by evicting landlords, the rights and duties of tenants, and the types of real estate transactions subject to the act. N.J.S.A. 2A:18-61.12. Pursuant to this authority the Department has adopted extensive rules governing condominium and cooperative conversions. See N.J.A.C. 5:24-1.1 et seq.
Since the adoption of the casino gambling amendment to the New Jersey Constitution in 1976, N.J.Const. (1947), Art. IV, § 7, par. 2 D, the Legislature has adopted the Casino Control Act, N.J.S.A. 5:12-1 et seq., which imposes stringent controls over that industry and created a special agency to license and regulate casinos. N.J.S.A. 5:12-50 et seq. The Legislature has continued to maintain close contact and scrutiny over problems developing within the industry and in Atlantic City, the only city where gambling is legally permissible. This appears quite
It is clear from these statutes that the Legislature has viewed the housing crisis in Atlantic City, including the conversion of rental units to condominiums, and casino gambling as an integrated problem and provided a comprehensive solution by amending the Anti-Eviction Act. Moreover, viewing the problems facing tenants apart from the impact of casino gambling, the Legislature has provided a broad integrated plan to balance the rights of tenants with the rights of owners and potential purchasers of condominiums. It is clear that preemption of the field has occurred. Hampshire House Sponsor Corp. v. Fort Lee, 172 N.J.Super. 426 (Law Div. 1979).
It is appropriate to note that there is a presumption that enactment of state legislation creating a state agency preempts municipal control over that agency and the field it regulates. Overlook Terrace Mgmt. Corp. v. West New York Rent Control Bd., supra, 71 N.J. at 464. Here, the Legislature has vested the Division of Housing and Urban Renewal and the Department of Community Affairs with broad powers to regulate the conversion of rental units into condominiums and to protect tenants evicted as a result of conversion.
We affirm the judgment entered in the Law Division holding Ordinance 69-1979 invalid and remand the matter for the entry of a judgment permanently enjoining its enforcement and for further proceedings on other pending issues not here considered.