                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-1775-13T1

TIMBER GLEN PHASE III, LLC,
a New Jersey Limited Liability
Company, and JSM AT TIMBER GLEN,
LLC, a New Jersey Limited Liability
Company,                                      APPROVED FOR PUBLICATION

     Plaintiffs-Appellants,                        August 6, 2015

                                                APPELLATE DIVISION
v.

TOWNSHIP OF HAMILTON, a Municipal
Corporation of the State of New
Jersey,

     Defendant-Respondent.
_______________________________

         Argued April 20, 2015 - Decided August 6, 2015

         Before   Judges      Lihotz,   St.      John     and
         Rothstadt.

         On appeal from the Superior Court of New
         Jersey,   Law  Division, Atlantic County,
         Docket No. L-0988-12.

         Ronald L. Shimanowitz argued the cause for
         appellants   (Hutt   &   Shimanowitz, P.C.,
         attorneys; Mr. Shimanowitz and Bryan D.
         Plocker, on the briefs).

         Robert S. Sandman argued the cause for
         respondent   (Hankin Sandman  Palladino  &
         Weintrob, attorneys; Raymond J. Went, Jr.,
         on the brief).

         Edward Purcell, Associate Counsel, argued
         the cause for amicus curiae New Jersey State
         League   of  Municipalities   (Mr.  Purcell,
            attorney;   William   J.  Kearns,    Jr.,                    of
            counsel; Mr. Purcell, on the brief).

            Sean A. Smith argued           the cause         for amicus
            curiae New Jersey             Apartment          Association
            (Brach Eichler, LLC,          attorneys;         Charles X.
            Gormally, of counsel          and on the          brief; Mr.
            Smith, on the brief).

            Robert M. Washburn argued the cause for
            amicus    curiae    New    Jersey    Builders
            Association    (Flaster   Greenberg,    P.C.,
            attorneys; Mr. Washburn, of counsel; Emily
            Breslin Markos, on the brief).

            Barry S. Goodman argued the cause for amicus
            curiae New Jersey Realtors (Greenbaum, Rowe,
            Smith & Davis, LLP, attorneys; Mr. Goodman,
            of counsel and on the brief; Steven B.
            Gladis, on the brief).

    The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

    In     this    appeal,       the   parties   disagree        on    the    scope   of

municipal authority granted by N.J.S.A. 40:52-1 (the Licensing

Act),     which     empowers        municipalities          to   adopt        licensing

ordinances under specific circumstances.                    Plaintiffs Timber Glen

Phase III, LLC and JSM at Timber Glen, LLC appeal from the

summary    judgment       dismissal     of     their       complaint    in    lieu    of

prerogative       writs     that    challenged       an     ordinance     adopted      by

defendant Township of Hamilton, assessing an annual licensing

fee on residential apartment units.

    On     appeal,        plaintiffs    attack       the     trial     judge's    legal

interpretation      of     the     Licensing   Act     as    enabling     defendant's



                                          2                                    A-1775-13T1
action and, alternatively, argue the amount of the licensing fee

imposed by defendant's ordinance was arbitrary, capricious and

unreasonable.       Several amici appeared and presented arguments

favoring    or   opposing   the    authorization           to    exercise     municipal

authority.

       Following    our   consideration        of    the    arguments        presented,

viewing the evidential materials in the light most favorable to

plaintiffs, Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,

406    (2014),     we   conclude    the       ordinance         falls    outside        the

authority granted to municipal governments under the Licensing

Act.    We reverse the grant of summary judgment to defendant as

the licensing ordinance is ultra vires and unenforceable.

       The facts are not disputed.            Plaintiffs are incorporated in

New Jersey and own apartment buildings in Mays Landing.                                   In

total, the buildings contain 498 units, leased for residential

purposes.

       Defendant adopted Ordinance No. 1708-2011 in response to

the findings of its Strategic Planning Smart Growth Committee

(SMART), whose task included issuing recommendations to improve

the quality of life and address safety issues in the township's

residential      properties.       SMART      proposed          defendant      adopt      an

ordinance     requiring     annual    licensing            for     all       residential

properties,      specifically     designed      to   "protect       .    .    .   tenants




                                          3                                       A-1775-13T1
[and] . . . landlords who may not have been aware of some of the

activities taking place at the[ir] rental properties."              SMART

expressed a goal to place landlords on notice of safety and

habitability issues requiring attention.

      The ordinance, entitled "AN ORDINANCE OF THE TOWNSHIP OF

HAMILTON, COUNTY OF ATLANTIC, REQUIRING RESIDENTIAL RENTAL UNIT

LICENSES,   TENANT   OCCUPANCY   PERMITS    AND   PERIODIC   HABITABILITY

INSPECTIONS AND RE-INSPECTIONS," mandated, among other things,

the   registration   and   licensing   of   apartment   units    starting

January 1, 2012.     The ordinance provided in pertinent part:

            222-3.   Residential   Rental     Unit    License
            Required.

            Effective upon adoption of this Ordinance no
            person shall occupy any Residential Rental
            Unit   nor  shall   the  owner   permit  the
            occupancy of any[] residential rental unit
            within the Township of Hamilton if said unit
            has not been Licensed by the Bureau of Fire
            Prevention on forms which shall be provided
            for that purpose.   Any owner permitting the
            occupancy of a Residential Rental Unit
            without said License 90 days after the
            Adoption of this ordinance shall be in
            violation of this ordinance, and each and
            every day thereafter shall be deem[ed] a
            separate offense.

A "Residential Rental Unit" was defined in 222-1 as:

            Any dwelling . . . which the owner rents or
            leases to any third party for the purposes
            of that third party or parties to reside in
            the premises for a period in excess of
            thirty days regardless of the term of any
            written or verbal lease. . . . Any room or



                                   4                             A-1775-13T1
              rooms, suite or a part thereof, whether
              furnished or unfurnished, which is occupied
              or intended, arranged or designed to be
              occupied for sleeping or dwelling purposes
              . . . .

      Other     provisions     set       forth      in   the    ordinance          required

disclosure of names, addresses and phone numbers of all owners

and   mortgagees,      designation       of    an    Atlantic     County       agent     for

owners    not    located     in    the     county        and   other    unit-specific

information.       The license was to be renewed and the $100 per

unit fee paid annually.            Failure to obtain or renew the license

prohibited the owner from renting the unit.

      Other      sections     of    the       ordinance        addressed       a    tenant

occupancy permit, which owners were required to obtain annually

for   a   $25    fee   per    unit.        Finally,        provisions      for      annual

habitability inspections, which included a fire inspection, were

included with a separate fee of $125.

      Plaintiffs filed a complaint in lieu of prerogative writs

seeking   a     declaratory    judgment        invalidating       the    ordinance        as

unconstitutional, ordering repayment of all fees collected to

date, awarding attorney's fees and costs of suit and granting

other relief not relevant to this appeal.

      Prior to filing its answer, defendant met with plaintiffs

and   others     affected    by    the    ordinance.           Based    upon       concerns

raised, defendant adopted an amendment under Ordinance No. 1727-




                                           5                                       A-1775-13T1
2012,    eliminating        several    original         provisions,        such    as    the

tenant      occupancy      permit     fee        and   some       tenant    registration

requirements.         A    slightly     reduced        annual      licensing      fee   was

adopted1     and     the    habitability          inspection        requirements        were

retained.      The modifying ordinance also added a clause stating

licensing     fees    were      not   intended         as   a    source    of   municipal

revenue,     but   rather       all   fees       generated       were     designated     for

enforcement     purposes.         Defendant        later        adopted    Ordinance    No.

1752-2013, also amending the original ordinance by repealing the

annual habitability inspection provisions.

      The Law Division reviewed the matter on the parties' cross-

motions for summary judgment.                Plaintiffs argued the ordinance

did   not    recite       the   enabling     legislation           granting     defendant

authority to license residential rentals, and argued it did not

fall within a municipality's general police power.                                Further,

plaintiffs asserted the Licensing Act did not allow defendant to

license and regulate residential apartment buildings with leases

of 175 days or more, as the clear intent of the statute was

directed toward temporary or transient housing and short-term


1
     The $100 fee was reduced to $85.          In a subsequent
ordinance, the fee was altered to "an amount established by the
Township Committee through [r]esolution annually as to the cost
of licenses during that calendar year." At the time the matter
was heard, the fee was $65 per unit per year, which would be an
annual expense to plaintiffs of $32,370.



                                             6                                    A-1775-13T1
vacation     rentals.          Moreover,         plaintiffs      pointed       out     the

regulatory ordinance did nothing more than impose another fee on

apartment units, which were already regulated by the Hotel and

Multiple    Dwelling     Act      (HMDA),    N.J.S.A.      55:13A-1      to    -28,    and

local    property     maintenance          and   fire     ordinances.           Finally,

plaintiffs       asserted         the     ordinance        burdened      tenants       by

arbitrarily      imposing         the     constantly       changing      annual       fee,

designed to shift municipal burdens onto landlords and tenants.2

     Defendant challenged plaintiffs' contentions, stating the

licensing    ordinance       was    validly      enacted    under     the     regulatory

legislative functions of the township and was implemented for a

public     purpose,      that       is,     to     aid      tenants      experiencing

inappropriate       housing         conditions        unabated      by        landlords.

Defendant    also     cited       the    HMDA,   which     provides      authority     to

license and inspect when a new tenancy commences.                              Defendant

suggests the HMDA did not prohibit adoption of an ordinance for

more frequent licensing, and as remedial legislation, it must be

liberally construed to permit such ordinances.

     The     judge,     in    a    memorandum      decision      accompanying          the

November    6,   2013    order,         interpreted      N.J.S.A.     40:52-1(d)       and


2
     Plaintiffs   raised  additional  issues  before  the  Law
Division, including constitutional challenges and a demand for
attorney's fees under 42 U.S.C.A. § 1983; however, they chose
not to pursue these issues on appeal.



                                            7                                   A-1775-13T1
N.J.S.A. 40:48-2.12a as authorizing defendant to license rental

properties.              Accordingly,           he        granted       summary       judgment       to

defendant         and    dismissed         plaintiffs'           complaint.           This     appeal

followed.

    Our examination of this statutory interpretation challenge

presents legal questions, warranting de novo review.                                     See Redd

v. Bowman, 433 N.J. Super. 178, 187 (App. Div. 2013), certif.

granted, 217 N.J. 293 (2014).                     We "owe no deference to the trial

court    .    .    .     if    [we     conclude          it    has]   wrongly      interpreted        a

statute."         Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

    In construing the meaning of a statute, our task is well-

defined:      we       must        "determine   and           effectuate     the   Legislature's

intent," examining the language used and statutory objectives to

be achieved.            Redd, supra, 433 N.J. Super. at 187 (citation and

internal quotation marks omitted).                             See also N.J.S.A. 1:1-1 ("In

the construction of . . . statutes[,] . . . words and phrases

shall    be       read    and       construed        with       their      context,    and    shall,

unless        inconsistent             with      the           manifest       intent      of       the

legislature[,] . . . be given their generally accepted meaning,

according          to         the     approved           usage        of     the      language.").

"'Construction                of     any    statute             necessarily        begins        with

consideration of its plain language.'"                                Mun. Council v. James,

183 N.J. 361, 370 (2005) (quoting Merin v. Maglaki, 126 N.J.




                                                     8                                       A-1775-13T1
430,   434    (1992)).          We    give    plainly         written     statutes   their

"ordinary meaning, absent a legislative intent to the contrary,"

with the understanding the language must be construed "in a

fashion      consistent        with    the    statutory         context    in    which      it

appears."          Ibid.        (citations        and    internal       quotation    marks

omitted).       See also Shelton v. Restaurant.com, Inc., 214 N.J.

419, 428-29 (2013).

       If our review finds the statutory provisions are ambiguous,

we   are   free      to    examine     extrinsic        aids,    such     as   legislative

history,      to     ascertain        the    Legislature's         intended      meaning.

Shelton, supra, 214 N.J. 429.                     In interpreting two seemingly

conflicting        sections     of    the    same   statute,       we     must   read    the

provisions      in      pari   materia,       construing        them    "together      as    a

unitary and harmonious whole."                Am. Fire & Cas. Co. v. N.J. Div.

of Taxation, 189 N.J. 65, 80 (2006) (citations and internal

quotation marks omitted).              "Every reasonable construction should

be   applied"      to     assure     each    section     is     meaningful.       Twp.      of

Mahwah v. Bergen Cnty. Bd. of Taxation, 98 N.J. 268, 281, cert.

denied, 471 U.S. 1136, 105 S. Ct. 2677, 86 L. Ed. 2d 696 (1985).

Finally, we keep in mind "every word in a statute has meaning

and is not mere surplusage."                 Jersey Cent. Power & Light Co. v.

Melcar     Util.     Co.,      212    N.J.   576,       587    (2013)     (citations     and

internal quotation marks omitted).




                                              9                                   A-1775-13T1
       Guided    by    these      rules,    we   examine        defendant's       position

arguing the ordinance followed supportive enabling legislation,

which authorized its imposition of licensing requirements for

rental    residential            real    estate,     as     well       as   plaintiffs'

challenges to that asserted authority.

       Defendant       contends       its   licensing       authority       is    grounded

generally       in     a      municipality's        police        power,     and,     more

specifically,          in     subsection      (d)     of        the    Licensing      Act.

Defendant's view is supported by amicus New Jersey State League

of Municipalities (League of Municipalities), which additionally

cites the enforcement provision of the HMDA, N.J.S.A. 55:13A-21,

suggesting      licensure        is   compatible     with       the   regulatory     power

over   dwelling        space     upon   termination        of    occupancy       found   in

N.J.S.A. 40:48-2.12m.

       Plaintiffs       disagree.           Their    primary          challenge     argues

defendant may only regulate apartment rentals for terms less

than 175 consecutive days, as allowed by subsection (n) of the

Licensing       Act,        because     regulation     of       residential        rentals

generally rests with the State under the HMDA, unless otherwise

authorized.          Amici New Jersey Builders Association, New Jersey

Realtors,       and        New    Jersey     Apartment          Association       support

plaintiffs' positions.




                                            10                                    A-1775-13T1
       Initially, when reviewing a municipal action, we apply a

presumption         of      validity        and     reasonableness             to    adopted

ordinances.         Lake Valley Assocs., LLC v. Twp. of Pemberton, 411

N.J. Super. 501, 505 (App. Div.), certif. denied, 202 N.J. 43

(2010); see also First Peoples Bank v. Twp. of Medford, 126 N.J.

413,    418     (1991)       ("[A]     reviewing        court     should       presume      the

validity and reasonableness of a municipal ordinance.").                                We do

not "pass on the wisdom of the ordinance; that is exclusively a

legislative function."             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).                          A party challenging an

ordinance       must      demonstrate       the    ordinance,       "in     whole      or    in

application         to      any      particular         property,"        is     arbitrary,

capricious         or     unreasonable.           Id.    at     289-90     (citation        and

internal quotation marks omitted).                      Therefore, the "presumption

of validity [cannot] be overcome unless the evidence clearly

establishes         its     unreasonableness."             Twp.    of      Livingston        v.

Marchev,      85    N.J.     Super.       428,    432    (App.    Div.     1964)     (citing

Vickers    v.      Twp.    Comm.     of   Gloucester      Twp.,     37    N.J.      232,    242

(1962)), certif. denied, 44 N.J. 412, appeal dismissed, 382 U.S.

201, 86 S. Ct. 393, 15 L. Ed. 2d 269 (1965).




                                             11                                      A-1775-13T1
    The validity of local legislative action is based on the

New Jersey State Constitution Article IV, section VII, paragraph

11, which states:

           The provisions of this Constitution and of
           any law concerning municipal corporations
           formed for local government, or concerning
           counties, shall be liberally construed in
           their favor.    The powers of counties and
           such municipal corporations shall include
           not only those granted in express terms but
           also those of necessary or fair implication,
           or   incident   to   the  powers   expressly
           conferred, or essential thereto, and not
           inconsistent with or prohibited by this
           Constitution or by law.

See also Moyant v. Paramus, 30 N.J. 528, 534 (1959) (discussing

presumptive   validity    of    municipal   ordinances).    This   "[h]ome

rule is basic in our government" and "embodies the principle

that the police power of the State may be invested in local

government to enable local government to discharge its role as

an arm or agency of the State and to meet other needs of the

community."     Inganamort v. Ft. Lee, 62 N.J. 521, 528 (1973).

"Express powers as well as those that arise by fair implication

are given broad latitude, so long as they are not wielded in

contravention of the overarching statutory grant of authority or

conflict   otherwise     with   an   express   statutory   limitation     or

prohibition."    Varsolona v. Breen Capital Servs. Corp., 180 N.J.

605, 625 (2004).




                                     12                            A-1775-13T1
       The     presumption      of     the     validity         of    local     legislative

action,      however,    is    constrained          by   the    obvious       understanding

that    "[a]    statute       has    supremacy       over      an    ordinance,"       In   re

Ordinance       04-75,    192       N.J.     446,    469       (2007),    and     "a   local

municipality       is    but    a     creature       of     the      State,     capable     of

exercising only those powers granted to it by the Legislature

. . . ."       Moyant, supra, 30 N.J. at 535.                   See also Dome Realty,

Inc. v. Paterson, 83 N.J. 212, 225 (1980) ("[M]unicipalities,

being created by the State, have no powers save those delegated

to them by the Legislature and the State Constitution.").

       "Whether the State alone should act or should leave the

initiative      and     the    solution       to     local      government,       rests     in

legislative discretion."               Inganamort, supra, 62 N.J. at 528.

Thus, "the Legislature may invest in local government the police

power to devise measures tailored to the local scene."                                 Ibid.

(emphasis added).

       When examining the municipal authority to regulate in the

first    instance,       the    Supreme       Court       in    Inganamort       instructed

judicial review of an ordinance requires

               three constituent questions: (1) does the
               State Constitution prohibit delegation to
               municipalities of the power . . . ; (2) if
               that   power   may   be   granted,   has the
               Legislature done so; and (3) if the State
               statutes     vesting    police     power  in
               municipalities do embrace this area, is the
               exercise of that power by local government



                                              13                                   A-1775-13T1
            preempted or barred by reason of the
            existence of other statutes dealing with the
            subject matter.

            [Id. at 527.]

    The general grant defining a municipality's police power is

found in N.J.S.A. 40:48-2.         The statute provides:

                 Any   municipality   may   make,    amend,
            repeal and enforce such other ordinances,
            regulations, rules and by-laws not contrary
            to the laws of this state or of the United
            States, as it may deem necessary and proper
            for   the    good   government,    order    and
            protection of persons and property, and for
            the preservation of the public health,
            safety and welfare of the municipality and
            its inhabitants, and as may be necessary to
            carry into effect the powers and duties
            conferred and imposed by this subtitle, or
            by any law.

            [N.J.S.A. 40:48-2.]

    The Court has held this statute "authorizes a municipality

to take such action as it deems necessary and proper for the

purposes    specified    subject     only   to    the   limitation   that   such

action     not   be     prohibited     by    or    inconsistent      with    the

Constitution or the other statutes . . . ."                Moyant, supra, 30

N.J. at 542 (citation and internal quotation marks omitted).

However,    "[n]either      the    constitutional        nor   the   statutory

provision is a blanket authorization to pursue the governing

body's particularized notion of the public good or to legislate

beyond the bestowed powers, express or implied."               Repair Master,




                                       14                              A-1775-13T1
Inc. v. Borough of Paulsboro, 352 N.J. Super. 1, 8 (App. Div.

2002).

    A      municipality      is     also      granted      specific      authority      to

regulate    local    "buildings         and    structures         and   their   use   and

occupation to prevent and abate conditions therein harmful to

the health and safety of the occupants of said buildings and

structures     and    the     general         public    in        the   municipality."

N.J.S.A.     40:48-2.12a.              Specific     statutes        address     imposing

registration requirements for residences containing two or more

families, N.J.S.A. 40:48-2.12c, and regulating "the maintenance

and condition of any unit of dwelling space, upon termination of

occupancy,"     N.J.S.A.      40:48-2.12m.              These       statutes    do    not

authorize licensure of residential apartments.

    Contrary to defendant's and the League of Municipalities'

arguments,    the    powers       to    regulate     and     to    license,     although

related, are discrete.            See, e.g., Moyant, supra, 30 N.J. at 545

("Registration       and    licensing         are   commonly       accepted     as    such

reasonable regulatory means . . . ." (emphasis added)).                               The

Court addressed this distinction in Nelson Cooney & Sons v.

Township of South Harrison, 57 N.J. 384 (1971):

            N.J.S.A. 40:52-1 covers a large number of
            business and instrumentalities used therein
            as the permitted subjects of municipal
            licenses.   Essentially all are also proper
            subjects   for   police   power    regulatory
            ordinances, authorized by N.J.S.A.    40:48-1



                                           15                                   A-1775-13T1
            and 2.          But the latter power does not
            include       the right to require a license
            . . . .

            [Bernardsville   Quarry  v.   Borough   of
            Bernardsville, 129 N.J. 221, 229-30 (1992)
            (quoting Nelson, supra, 57 N.J. at 390
            n.4).]

See also Colonial Oaks W., Inc. v. E. Brunswick, 61 N.J. 560,

572 (1972) (same).

    As identified during the trial court proceedings, defendant

had exercised regulatory authority over apartments.                     Ordinances

were adopted governing inspection of apartments prior to the

commencement     of   a    new    tenancy,   assuring         maintenance    of   the

premises and compliance with fire safety.

    Because       the      Legislature       has      specifically      addressed

licensing   in    Chapter    52    of   Title   40,      we   reject   defendant's

overarching      proposition      suggesting       the   general    police     power

regulatory authority, as found in N.J.S.A. 40:48-2 or N.J.S.A.

40:48-2.12m, encompasses the authority to license residential

rental units.         See Zullo v. Bd. of Health, 9 N.J. 431, 437

(1952) ("The power to license and to levy fees therefor is not

inherent in local agencies exercising by delegation a portion of

the State's police power and in the absence of statutory grant

does not exist in a municipal corporation . . . .").                    Thus, the

authority granted by the State to license rental properties,

which by its nature includes a revenue generating component, is



                                        16                                  A-1775-13T1
circumscribed       by   the    provisions        of   the    Licensing    Act.      See

Bernardsville Quarry, supra, 129 N.J. at 229 ("N.J.S.A. 40:52-1

is   simply    a    grant      of   power   allowing         municipalities   to    use

licenses ancillary to its powers to regulate.").

      The Licensing Act provides, in pertinent part:

                   The governing body may make, amend,
              repeal and enforce ordinances to license and
              regulate:

                     . . . .

              d.   Hotels,  boardinghouses,   lodging  and
              rooming houses, trailer camps and camp
              sites, motels, furnished and unfurnished
              rented housing or living units and all other
              places and buildings used for sleeping and
              lodging purposes, and the occupancy thereof,
              restaurants and all other eating places, and
              the keepers thereof;

                     . . . .

              n.   The rental of real property for a term
              less   than   175    consecutive   days for
              residential purposes by a person having a
              permanent place of residence elsewhere.

              [N.J.S.A. 40:52-1.]

      The Legislature's primary purpose in enacting the Licensing

Act was to "authorize municipalities to license and regulate, as

police     measures      for    the      public     health,     safety,    morals    or

welfare,      the    local     businesses         described     therein,    and     only

incidentally        to   impose     on    the    businesses      thus   licensed    and

regulated license fees for revenue which may, at least within




                                            17                                A-1775-13T1
reasonable limits, exceed the regulatory costs."                                Salomon v.

Jersey     City,        12    N.J.     379,        390    (1953).         Therefore,        a

municipality's          exercised      licensing          authority      "cannot    be    an

arbitrary exertion of th[at] power," Ring v. N. Arlington, 136

N.J.L. 494, 497 (Sup. Ct.), aff'd o.b., 1 N.J. 24 (1948), nor

can the exercise be unreasonable, Indep. Warehouses v. Scheele,

134 N.J.L. 133, 136 (E. & A. 1946), aff'd, 331 U.S. 70, 67 S.

Ct. 1062, 91 L. Ed. 1346 (1947).

    In this matter, the parties' primary positions interpreting

the Licensing Act can be summed up as follows: defendant argues

the broad language in subsection (d) encompasses any form of

licensure     of    rental         residences        as    apartments       fall     within

"furnished    and       unfurnished       rented         housing    or   living    units."

Plaintiffs,        on        the     other     hand,        reject       this      sweeping

interpretation,          suggesting       subsection         (d)     applies      only    to

temporary residential uses, drawing support from subsection (n),

which permits licensing authority over short-term residential

rentals,    not    more       permanent      dwellings.            Plaintiffs     argue    if

authority to license residential real estate is included within

subsection (d), subsection (n) is rendered superfluous.

    On its face, the statute appears to contain an ambiguity,

as the provisions of subsection (d) (directed to "furnished and

unfurnished rented housing or living units and all other places




                                              18                                   A-1775-13T1
and buildings used for sleeping and lodging purposes, and the

occupancy      thereof")        would   appear    to     include      the    subject      of

subsection (n) (governing "[t]he rental of real property for a

term less than 175 consecutive days for residential purposes by

a    person    having      a    permanent   place      of    residence       elsewhere")

N.J.S.A. 40:52-1(d), (n) (emphasis added).

       "Applying traditional principles of statutory construction,

we look to the legislative history to aid in determining the

legislative intent of a statute whose plain language is subject

to   more     than   one       reasonable   interpretation."              United    Parcel

Serv. Gen. Servs. Co. v. Dir., Div. of Taxation, 220 N.J. 90, 94

(2014) (citation and internal quotation marks omitted).                                  See

also DiProspero v. Penn, 183                N.J. 477, 492-93 (2005) ("[I]f

there is ambiguity in the statutory language that leads to more

than   one    plausible         interpretation,     we      may    turn    to   extrinsic

evidence, 'including legislative history, committee reports, and

contemporaneous         construction.'"          (quoting         Cherry    Hill      Manor

Assocs. v. Faugno, 182 N.J. 64, 75 (2004))).

       Subsection       (d)     as   originally    adopted        provided      municipal

licensing      of    "[h]otels,      boarding     houses,     lodging       and    rooming

houses, and all other places and buildings used for sleeping and

lodging purposes, restaurants and all other eating places, and

the keepers thereof . . . ."                L. 1941, c. 92.               Thereafter the




                                            19                                     A-1775-13T1
statute    was      amended,     largely    in   response    to   judicial

interpretations.

      By 1948, "trailer camps and camp sites" were added.                  L.

1948, c. 425.        See Edwards v. Mayor & Council of Moonachie, 3

N.J. 17, 23 (1949) (concluding "[t]railer camps and camp sites,

in   the   view    of   the    ordinance,   comprise   'places'   used   for

'sleeping and lodging purposes'" governed by the statute).

      The next amendment came on the heels of the Court's denial

of certification of this court's affirmance of a trial judge's

rejection of the scope of subsection (d) to include licensing

apartments.       In Boulevard Apartments, Inc. v. Hasbrouck Heights,

86 N.J. Super. 189 (Law Div. 1965), aff'd o.b., 90 N.J. Super.

242 (App. Div.), certif. denied, 47 N.J. 239 (1966), the Law

Division held:

            We do not consider an apartment house to be
            in the same general or specific class as a
            hotel, boarding house, lodging or rooming
            house.     These are commercial businesses
            requiring regulation for the safety, health
            and morals of the community.   An apartment
            house, where unfurnished apartments are
            rented for a term, without overnight or
            transient business, is in the same category
            as a private or two- or three-family
            residence.

                   . . . .

                 We are cognizant that the statute,
            N.J.S.A. 40:52-1(d), contains the words "all
            other places and buildings used for sleeping




                                      20                           A-1775-13T1
          and lodging purposes."    We do not consider
          apartment houses to be in that category.

          [Id. at 193-94.]

Thereafter, subsection (d) was amended to add "motels, furnished

and unfurnished rented housing or living units . . . and the

occupancy thereof."         L. 1968, c. 296.

      In 1998, subsections (m), relating to rental of commercial

property, and (n), relating to residential rentals, were added.

L. 1997, c. 317.          A legislative statement attached to the bill

when introduced, adding this new subsection, stated:

          This bill would limit the authority of a
          municipality   to  license  the   rental  of
          commercial and residential real property to
          leases of less than 125 days. Under current
          law, a municipality has the authority to
          regulate all leases.       This bill would
          effectively limit that authority to seasonal
          leases, such as weekly rentals in shore
          municipalities.

          [Ibid.]

The   proposal      was   altered   by        the    Senate   Community   Affairs

Committee, increasing 125 to 175 days.                The amendment as adopted

did not make changes to subsection (d).

      Since   the    1998    amendment,        few    opportunities   have    been

presented for judicial review of these statutory provisions.3


3
     In Lake Valley, a municipal ordinance imposing licensing
and inspection requirements upon a change in tenancy of
residential rentals was upheld upon a finding the State did not
                                                    (continued)


                                         21                               A-1775-13T1
Importantly, none of those cases considered the issue now before

the court.

       Obligated as we are to "seek an interpretation that will

make the most consistent whole of the statute," In re Registrant

N.B., __ N.J. __, __ (2015) (slip op. at 28) (citations and

internal     quotation      marks      omitted),     we   determine       the   bill

statement    accompanying        the   1998   amendment    serves    as    powerful

evidence of the objectives and intentions of the Legislature

with   respect    to     licensing     residential    rentals.       We    conclude

municipalities are not authorized to issue ordinances imposing

licenses for apartment units which provide tenancies of 175 days

or more.

       Aligned    with     the   maxim    "expressio      unius     est    exclusio

alterius," which means the inclusion of one excludes the other,

DiProspero,      supra,    183   N.J.    at   495,   we   understand      the   very

specific addition of subsection (n), which limits licensure to


(continued)
preempt the area by enacting the HMDA. Lake Valley, supra, 411
N.J. Super. at 505-07.    Licensing authority was not examined.
See ibid.   Similarly, in Repair Master, this court struck down
an ordinance regulating the nature of occupancy of rental
property; however, the issue of licensing authority was neither
challenged nor reviewed. Repair Master, supra, 352 N.J. Super.
at 14. Finally, in United Property Owners Association of Belmar
v. Borough of Belmar, 343 N.J. Super. 1, 32 (App. Div.), certif.
denied, 170 N.J. 390 (2001), we upheld the scope of an ordinance
regulating summer beach rentals, based on legislative authority,
including N.J.S.A. 40:52-1(n).




                                         22                                A-1775-13T1
residential       rentals     of     "less         than     175       consecutive        days,"

precludes licensure of residential rentals for 175 days or more.

Further, the Legislature's addition of this discrete provision,

expressly limiting licenses to "rental of real property for a

term less than 175 consecutive days for residential purposes by

a person having a permanent place of residence elsewhere," must

be considered purposeful and made while cognizant of subsection

(d) because "[a] legislative body in this State is presumed to

be familiar . . . with the statutory law of the State . . . ."

Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 350 (1953).                                     The

bill's     interpretative          statement          reinforces         this     view       and

reflects     an    explicit        intent        to   limit        municipal      licensing

authority "to seasonal leases" and, therefore, assures the full

meaning of all statutory provisions.                      See Jersey Cent. Power &

Light,   supra,     212   N.J.     at    587       (stating       a   court     must    assume

legislative       enactments        do       not      use     "any       unnecessary          or

meaningless       language"    (citation           and    internal       quotation        marks

omitted)).

       The trial judge did not mention the language or impact of

subsection (n) when rendering his decision.                             However, we find

this   provision     critical       to   the       overall        understanding        of    the

scope of statutory authority.                Reading the whole of the statute,

we   conclude     the   addition        of   a     separate       section       directed       to




                                             23                                        A-1775-13T1
short-term       or    seasonal    residential        leases       suggests       temporal

implications      when    considering        the    meaning        of    "furnished       and

unfurnished rental units" described in subsection (d).                             This is

especially      true    because     the     other    arrangements             mentioned    in

subsection (d) refer to short-term living (e.g., motels, hotels,

boardinghouses, rooming houses and camp sites).                           Reading these

two provisions in this way reconciles the Legislature's decision

not to amend subsection (d) when adding subsection (n).                                   See

Shelton, supra, 214 N.J. at 440 ("Words in a statute should not

be read in isolation.")

    We      cannot       agree     with     defendant        and        the     League    of

Municipalities that subsection (n) merely provides another type

of rental housing subject to licensure or was limited to rentals

in resort communities.            The interpretative statement to the 1998

amendment       refutes    these       assertions.          Were    defendant's          view

correct,    a    clarification         in   (d)    would    have    been       sufficient.

Instead,    we    conclude       the    addition     of     (n)    was        designed    and

significant as it reflects a specific intent to limit licensing

of residential rentals, which were viewed differently from the

living arrangements listed in subsection (d).

    As     we    stated    above,       licensing      is    a     distinct       function

authorized by N.J.S.A. 40:52-1.                    We conclude the Legislature

chose to limit municipal licensing authority to short-term lease




                                            24                                     A-1775-13T1
arrangements.         If    that     interpretation     is     incorrect,     the

Legislature will act to provide further clarification.

     Therefore, defendant may not mandate by ordinance licensure

of residential rentals for 175 days or more, accompanied by an

annual licensing fee.         The ordinance mandating this licensure is

invalid as ultra vires and unenforceable.4

     We choose not to address plaintiffs' alternative argument,

as we conclude it is moot.            Comando v. Nugiel, 436 N.J. Super.

203, 219 (App. Div. 2014) (declining discussion of issue when

controversy is concluded).

     We   vacate     the   summary    judgment   dismissal     of   plaintiffs'

complaint and reverse the order upholding defendant's licensing

ordinance.      We   remand    this    matter    to   the    Law   Division   for

further proceedings as necessitated by our opinion.                   We do not

retain jurisdiction.

     Reversed and remanded.




4
     Our opinion is confined to the authority to license and
does not address defendant's regulatory or inspection authority
granted by other statutes designed to assure rental premises
remain safe, building and fire code compliant and structurally
sound. See Devine v. Mantua Twp., 28 N.J. Super. 299, 305 (Law
Div. 1953).



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