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Bass River Associates v. Mayor

decided: August 31, 1984.

BASS RIVER ASSOCIATES, T/A BASS RIVER YACHTING CENTER AND MARINER HOUSEBOATS, INC., APPELLANTS
v.
THE MAYOR, TOWNSHIP COMMISSIONER, PLANNING BOARD OF BASS RIVER TOWNSHIP AND BASS RIVER TOWNSHIP



Appeal from the United States District Court for the District of New Jersey.

Higginbotham, Sloviter, Circuit Judges, and Green, District Judge.*fn*

Author: Sloviter

Opinion OF THE COURT

SLOVITER, Circuit Judge

At issue is the validity of an ordinance of Bass River Township, N.J., that bans "floating homes." The plaintiffs are the owner of a marina and a builder of houseboats, who together had planned to sell and moor boats. They were unable to do so because the township adopted the exclusionary ordinance as a response to the plaintiffs' proposal. Plaintiffs challenged the constitutionality of the measure in the United States District Court for the District of New Jersey. The district court rejected their challenge. We will affirm.

I.

FACTS

Bass River Township, in the pine barrens of New Jersey, is a sparsely populated, ecologically fragile area. Its waters are used by campers and boaters, and the estuarine areas contain oyster beds. The township does not have a police force or trash collection service, and it depends on volunteer firefighters. All real estate development is governed by the township's master plan, subdivision and site plan ordinance, and zoning ordinances, as well as the New Jersey Pinelands Protection Act, N.J.S.A. 13:18A-1 et seq. (1979 & Supp. 1984), and Coastal Area Facility Review Act, N.J.S.A. 13:19-1 et seq. (1979). Under the master plan, minimum lot size for a dwelling is 3.2 acres.

Appellant Bass River Associates devised a plan to buy an existing 32-acre marina on the Bass River, to install amenities and, in a dealership agreement with appellant Mariner Houseboats, to sell and moor houseboats there. Sixty-six boats were to be moored in the eight-acre basin. The boats were designed for year-round living; they could either be towed from location to location or propelled by optional outboard engines but none of those built through 1982 were ordered with an optional outboard. App. at 80a. Sewage was to be removed by a vacuum pump system and discharged elsewhere, but the boats would discharge water from the bath, laundry and kitchen, termed "gray water".

The appellants and their architect presented the plan to township officials, who did not expressly oppose it. Appellants then purchased the marina. It is not clear what the parties' understanding was at this point. However, very soon thereafter, the township drafted the ordinance banning floating homes and the Board of Commissioners conducted a hearing. There, the marina project was opposed by state officials, shellfish industry representatives, and the chief of the local volunteer fire company, among others. The opposition was based primarily on ecological concerns but a consultant also anticipated problems involving trash disposal, flood and ice storm damage, traffic and parking, and police protection.

The Board then adopted the ordinance, which provides, in principal part:

(a) No Floating Home shall be occupied and no Floating Home Marina shall be permitted in any zone within the Township of Bass River.

(b) No marina shall permit in water or out of water storage of any Floating Home.

(c) No person, firm or corporation shall operate or cause to be operated a Floating Home Marina or rent, hold out for rent or sell any site or space for the location of a Floating Home.

Bass River Township, N.J., Ordinance 83-1, Section II (January 20, 1983).

The ordinance distinguishes between houseboats, which are defined in Section I as "those vessels not designed primarily for residential dwelling units," and "floating homes," defined as "any vessel in fact used, designed, or occupied as a permanent dwelling unit." The ban applies only to floating homes.*fn1 It is undisputed that the appellants were the only persons adversely affected by Ordinance 83-1 when it was enacted.

The appellants claimed in district court that the ordinance (1) was preempted by the federal licensing and water pollution statutes and (2) violated the appellants' due process and equal protection rights. The district court discussed and rejected the preemption argument in an unreported opinion, App. at 551, and the case then proceeded to trial on the due process and equal protection issues. After trial the court dismissed the appellants' complaint. Bass River Associates v. Mayor of Bass River Township, 573 F. Supp. 205 (D.N.J. 1983). The appellants appeal on both the preemption and Fourteenth Amendment issues.

II.

PREEMPTI ...


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