JOHN CARUSO REALTY, INC. VS. JERSEY CITY RENT LEVELING BOARD AND MICHELE MONTEGNA (L-4140-15, HUDSON COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2957-15T4
JOHN CARUSO REALTY, INC.,
Plaintiff-Appellant,
v.
JERSEY CITY RENT LEVELING
BOARD AND MICHELE MONTEGNA,
Defendants-Respondents.
_____________________________________________
Argued June 6, 2017 – Decided July 10, 2017
Before Judges Messano and Suter.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-4140-15.
Joseph A. Pojanowski, III argued the cause for
appellant (Bertone Piccini, L.L.P.,
attorneys; Mr. Pojanowski, on the brief).
John J. Hallanan, Assistant Corporation
Counsel, argued the cause for respondent
Jersey City Rent Leveling Board (City of
Jersey City Department of Law, attorneys;
Jeremy Farrell, Corporation Counsel; Vincent
Signorile, Assistant Corporation Counsel, on
the brief).
Roberta L. Tarkan argued the cause for
respondent Michele Montegna (Law Offices of
Roberta L. Tarkan, attorneys; Ms. Tarkan, on
the brief).
PER CURIAM
Plaintiff John Caruso Realty, Inc., appeals from the Law
Division's February 26, 2016 order dismissing its complaint in
lieu of prerogative writs against defendants Jersey City Rent
Leveling Board (the Board) and Michele Montegna. The facts are
straightforward and undisputed.
Plaintiff owns Block 392, Lot 24a in Jersey City, which
contains two separate residential buildings. One, in the front
of the lot contains four units and bears the address 347 Pavonia
Avenue (the front building). The other, in the rear of the lot,
contains three units and bears the address 347 1/2 Pavonia Avenue
(the rear building). The New Jersey Department of Community
Affairs issued a certificate of inspection indicating the front
building consists of four "units." A judge hearing a 2003
landlord-tenant action issued a judgment of possession regarding
a tenant in the rear building, finding the Anti-Eviction Act,
N.J.S.A. 2A:18-61.1 to -61.12, did not apply because the building
was owner-occupied with not more than two rental units. See
N.J.S.A. 2A:18-61.1 (exempting such premises from the requirements
of the statute).
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Montegna was a tenant in the front building when plaintiff
increased her monthly rent by 25%. She filed a complaint with the
Board, alleging the increase violated Jersey City's rent control
ordinance. Jersey City, N.J., Rent Control Ordinance § 260 (1986)
(the Ordinance). Plaintiff filed opposition, arguing the
Ordinance exempts "[d]wellings with four (4) or less housing
spaces" from its definition of a dwelling. Id. at § 260-1A.
However, the Ordinance defines dwelling as "[a]ny building or
structures rented or offered for rent to one (1) or more tenants
or family units." Id. at § 260-1 (emphasis added).
Rejecting plaintiff's exemption claim, the Board
Administrator determined the increase was "not allowed" and
ordered a refund to Montegna. Plaintiff appealed to the Board,
which conducted a hearing, taking the testimony of plaintiff's
principal and Montegna. The Board passed a resolution rejecting
plaintiff's appeal and setting Montegna's lawful monthly rent.
Plaintiff filed its complaint in lieu of prerogative writs,
the Board and Montegna filed answers, and Judge Francis B. Schultz
heard argument before issuing an oral decision. Judge Schultz
rejected plaintiff's contention that the Court's decision in
Cashin v. Bello, 223 N.J. 328 (2015), was controlling. He noted
that the language of the Anti-Eviction Act, which the Court
construed in that case, permits eviction of a tenant by the "owner
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of a building of three residential units or less" who intends to
"personally occupy [the] unit." N.J.S.A. 2A:18-61.1(l)(3)
(emphasis added). Judge Schultz noted, however, that the Court
found "the Legislature's use of the word 'building,' in its
singular form, to be both deliberate and dispositive." Cashin,
supra, 223 N.J. at 331.
Here, the judge observed the Ordinance "uses the word
'structures,' plural." He "accord[ed] some deference to the
. . . Board . . . in [its] interpretation" of the Ordinance, but
independently concluded, "structures . . . means the four-unit,
plus the owner occupied three family. That adds up to seven.
Certainly, six rental units, which is more than four." The judge
dismissed the complaint, concluding the Board's action was not
arbitrary, capricious, unreasonable or, "as a matter of law,
wrong." He entered a conforming order and this appeal ensued.
Plaintiff reiterates the arguments made in the Law Division.
It contends the word "building" in the Ordinance's definition of
"dwelling" should be interpreted as the Court interpreted the word
in Cashin, and the front building, consisting of four "housing
spaces," essentially stands alone and should be exempt.1
1
Plaintiff also argues the earlier landlord-tenant litigation
conclusively demonstrated the rear building consisted of three
units, separate from the four units in the front building. The
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We reject these contentions and affirm substantially for the
reasons expressed by Judge Schultz. We add only these brief
comments.
"A court may set aside a municipal board decision if it is
shown to be arbitrary, capricious or unreasonable, not supported
in the evidence, or otherwise contrary to law." Rivkin v. Dover
Twp. Rent Leveling Bd., 143 N.J. 352, 378, cert. denied, 519 U.S.
911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996). Like the trial
court, we owe no deference to the Board's legal interpretations,
including its construction of the Ordinance. See, e.g., Osoria
v. W.N.Y. Rent Control Bd., 410 N.J. Super. 437, 443 (App. Div.
2009) ("When interpreting an ordinance, our scope of appellate
review is plenary."); accord Schulmann Realty Grp. v. Hazlet Twp.
Rent Control Bd., 290 N.J. Super. 176, 184 (App. Div. 1996).
"In construing the language of an ordinance, it is well
established that courts apply the same rules of judicial
construction as they apply when construing statutes." AMN, Inc.,
of N.J. v. Twp. of S. Brunswick Rent Leveling Bd., 93 N.J. 518,
judge's ruling in that action is not necessarily consistent with
our holding in Harrison v. Zelko, 272 N.J. Super. 219, 222-24
(App. Div. 1994), where we held that "premises," as used in
N.J.S.A. 2A:18-61.1, included all three buildings on the
plaintiff's property, only one of which the plaintiff occupied.
The argument lacks sufficient merit to warrant further discussion.
R. 2:11-3(e)(1)(E).
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524-25 (1983) (citing Camarco v. City of Orange, 61 N.J. 463, 466
(1972); 1A Sands, Sutherland, Statutory Construction § 30.06 (4th
ed. 1972)). "Therefore, 'an ordinance should be interpreted to
effectuate the legislative intent in light of the language used
and the objects sought to be achieved.'" Paff v. Byrnes, 385 N.J.
Super. 574, 579 (App. Div. 2006) (quoting Twp. of Pennsauken v.
Schad, 160 N.J. 156, 170 (1999)).
In this case, we agree with Judge Schultz that the clear
intent of the Ordinance was to exempt "[d]wellings with four (4)
or less housing spaces" from the strictures of rent control.
Ordinance, supra, § 260-1A. However, by definition, dwellings
included not only "any building" rented or offered to rent, but
also any "structures" rented or offered to rent. Id. at § 260-1.
The language of the Ordinance is plain and unambiguous, and when
applied to the facts in this case, it is obvious that two
structures, containing a total of seven housing spaces, were
situated on Block 392, Lot 24a. As a result, the exemption in the
Ordinance did not apply.
We also agree with Judge Schultz that the language of the
Anti-Eviction Act, as clearly construed in Cashin, is
substantially different, making the Court's decision inapposite
to this case.
Affirmed.
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