Amicus Curiae Brief — Yee v. Escondido

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eo Birane Goin, US

EILED.

DEC 30 1991

oy Oru OF He ct

NO. 90-1947

in The

SUPREME COURT OF THE UNITED STATES

October Term, 1991

' JOHN YEE et al,

Petitioners,

vs.

CITY OF ESCONDIDO,

Respondent.

ON CERTIORARI TO THE FOURTH APPELLATE DISTRICT,

DIVISION ONE, COURT OF APPEALS FOR THE STATE OF

CALIFORNIA

BRIEF FOR NEW JERSEY DEPARTMENT OF THE PUBLIC

ADVOCATE AS AMICUS CURIAE IN SUPPORT OF

RESPONDENT.

DAVID BEN-ASHER, * WILFREDO CARABALLO,

Assistant Commissioner Public Advocate

Department of the Department of the

Public Advocate Public Advocate

STEPHEN E!ISOORFER, Richard J. Hughes

Assistant Deputy Justice Compiex

Public Advocate CN 850

Trenton, NJ 08625

(609) 292-1693

*Counse! of Record

BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF AUTHORITIES |

STATEMENT OF INTEREST OF AMICUS

CURIAE ,

SUMMARY OF THE ARGUMENT 12

ARGUMENT 19

|. THE COMBINATION OF STATE AND

LOCAL REGULATION OF MOBILE HOMES

REPRESENTS A RATIONAL AND CAREFULLY

BALANCED POLICY OF ECONOMIC

REGULATION AND IS A NEITHER A

VIOLATION OF SUBSTANTIVE DUE

PROCESS NOR AN UNCONST!TUTIONAL

REGULATORY TAKING WITHOUT JUST

COMPENSATION. 19

A. The Combination of State and

Local Regulation of Mobile Homes

Represents a Rational and

Carefully Balanced Policy of

Economic Regulation 19

B. The Combination of State and

Local Regulation of Mobile Homes

Does Not Violate Principles of

Substantive Due Process. 34

Cc. The Combination of State and

Local Regulation of Mobil lie Homes

is Not an Unconstitutional!

Regulatory Taking Without Just

Compensation. 43

11. THE COMBINATION OF STATE AND

LOCAL REGULATION OF MOBILE HOME

PARKS DOES NOT CONSTITUTE AN

IMPERMISSIBLE PHYSICAL TAKING

WITHOUT JUST COMPENSATION IN TABLE OF AUTHORITIES

VIOLATION OF THE TAKINGS CLAUSE. 52

CONCLUS 1 ON 60

CASES

AMN, Inc. v. South Brunswick

Township Rent Leveling Board,

. 93 N.J. 518, 461 A.2d 1138

(1983) 10

Block v. Hirsh, 256 U.S. 135 (1921)

41, 55

Bowles v. Willingham, 321 U.S.

503 (1944) . 41

Federal Communications Commission

v. Florida Power Corp., 480

U.S. 245, 253 (1987)

39, 40, 46, 55, 56, 57

First English Evangelical Lutheran

os Church of Glendalev. Los

Angeles County, 482 U.S. 304,

318-19 (1987) 58

Fisher v. Berkeley, 475 U.S 260

(1986) 2, 10

Fresh Pond Shopping Center v. Callahan,

464 U.S. 875 (1983) 42, 53

Heart of Atlanta Mote! v. United

States, 379 U.S. 241 (1964) 55

Holmdel! Buliders Association v.

Hoimde!, 121 N.J. 550, 583

iit

A.2d 277 (1990) 9

Hutton Park Gardens v. West Orange,

68 N.J. 543, 350A.20d 1 (1975)

10, 32

Inganamort v. Fort Lee, 62 N.J. 521,

303 A.2d 298 (1973) 31

Koester v. Hunterdon County Board

of Taxation, 79 N.J. 381,

399 A.2dqd 656 (1979) 24

Kremens v. Bartiey, 431 U.S.

119 (1977) 3

Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S.419 (1982)

44, 46, 53, 56

Marcus Borwn Holding Co. v. Feldman,

256 U.S. 170 (1921) 42

Mayes v. Jackson Township Rent

Leveling Board, 103N.J. 362,

511 A.2d 589 (1986), cert.

denied, 475 U.S. 1000 (1987) 31

Mount Laurel v. Department of the

Public Advocate, 83 N.J. 522,

416 A.20 886 (1980) 2

Nebbia v. New York, 291 U.S.

502 (1934) 39, 40

Nolian v. Callfornia Coastal Commission,

483 U.S. 825(1987)

43, 44, 47, 50

O'son v. Nebraska ex re! Western

Reference and Bonding Ass'n,

273 U.S. 418 (1941) 39

Pennell! v. San Jose, 485 U.S. 1

(1988) 46, 59

Pennhurst State Schoo! v. Halderman,

451 U.S. 1 (1981) 2

Permian Area Basin Cases, 390 U.S.

747 (1968) 46

Pinewood Estates of Michigan v.

Barnegat Township Levelin

Board, 898 F.2d 347 (3rd Cir

1989) 8, 20, 48, 49

Property Ownwers Association v.

North Bergen, 74 N.J. 327,

378 A.2d 25 (1977) 10

Prowitz v. Ridgefield Park Village,

122 N.J.199, 584 A.2d

782 (1991) 9

PruneYard Shopping Center v. Robins,

447 U.S. 74 (1980) 55

Southern Burlington County NAACP v.

Mount Laure! Township, 67 N.J.

151, 336 A.2d 713, cert. denied,

423 U.S. 808 (1975) 9

Southern Burlington County NAACP

v. Mt. Laure! Township, 92

N.J. 158, 456 A.2d 390 (1983)

* 4, 10

Taxpayers Association of Weymouth

Township v. Weymouth Townsh'p,

71 N.J. 249, 364 A.2d 1016

(1976) 10

United Bulliding and Construction Trades

Council v. Camden, 465 U.S.

(1984)

STATUTES

N.J.S.A. 2A:

N.J.S.A. 40:

N.J.S.A. 46

N.J.S.A. 46:

N.J.S.A. 40:

N.J.S.A 52:

N.J.S.A. 52:

N.J.S.A. 52

N.J.S.A. 82

N.J.S.A. 52

N.J.S.A. 54

18-61.1

6, 30

550-100 et seq.

550-101

:8C-2 et seq.

8C-2

8C-3

8C-8

8C-9

270-121

27E-2

27E-29

:27E-30

:27E-29

:27E-32(b)

:27E-42

:4-1.2 et seq.

:4-1.3

208

20,

N.J.S.A. 54:4-1.4 16

N.J.S.A. 54:4-1.5 ° 30

N.J.S.A. 54:4-1.6 30

1977 N.J. Laws, Jt. Res. No. 3. 4

1982 N.J. Laws, c. 204 . .

1983 N.J. Laws, c. 386 4, §

1983 N.J. Laws, c. 387 4, &

1983 N.J. Laws, c. 380 4, 5

1983 N.J. Laws, c. 389 4, §

1983 N.J. Laws, c. 400 4, §

COURT RULES

Rule 37.5. 11

OTHER AUTHORITIES

Burchell | et at, Mount Laure! !!:

Challenge and Delivery of

Low Cost Housing (1983) 5, 26

Final Report of the Mobile Home Taxation

~ Commission (1983)

4, 20. 22, 26, 26, 27, 31

Hearing before the Mob! ie Home

Taxation Commission (May

19, 1983) 25

vil

N.J. Dept. Community Affairs, Rent

Control! Survey (1991) 7

N.J. Dept. of Community Affairs,

State of New Jersey |

Comprehensive Housing

Affordability Strate

(CHAS ) (Oraft, August 21,

1991) 20

N.J. State Data Center, 1990 U.S.

Census of Population and

Housing, STFi, Profiie 8

(1991) Be Ce BS

Report and Recommendations of the

Mobile Home Stud Commission

(1980)

3, 20, 22, @3, 24, 26, 28, 29, 38, 54

’ vill

STATEMENT OF INTEREST OF AMICUS

CURIAE NEW JERSEY DEPARTMENT OF

THE PUBLIC ADVOCATE

The New Jersey Department of the

Public Advocate (hereinafter the

“Department") is an Independent cabinet-

level department of New Jersey state

government. N.J.S.A. 52:27E-2.° It Is

mandated by statute to “represent the

public interest in such administrative

and court proceedings. .. as the Public

Advocate deems shal! best serve the

public interest." N.J.S.A. 62:27E-29.

“Public interest" is defined as an in-

terest arising from the Constitution,

decisions of the courts, common law or

other laws of the United States or of

this State inhering In the citizens of

this State or e broad class of such

citizens." N.J.S.A. 52:27E-30. Since

its estabi!ishment In 1974, the

Department has represented the interests

of residents of New Jersey in a wide

variety of areas Including health, hous-

ing, Income security, environment, and

employment. it has come to play an im-

portant and continuing role in the

protection and vindication of the inter-

ests and rights of the residents of New

Jersey. See, e.g., Mount Laurel Vv.

Department of the Pubiic Advocate, 83

N.J. 522, 535-36, 416 A.2d 886, 893

(1980).

In this capacity, the Department

has previously filed amicus briefs In

cases before this Court. See, e.g.,

Fisher v. Berkeley, 475 U.S 260 (1986);

United Building and Construction Trades

Council! v. Camden, 465 U.S. 208 (1984);

Pennhurst State Schoo! v. Halderman, 451

U.S. 1 (1981); Kremens v. Bartley, 431

U.S. 119 (1977).

This case raises the Issue of

whether the combination of municipal

rent control of mobile home parks

without vacancy decontrol!l and state

statutes protecting the right of mobile

home owners !Iiving In mobile home parks

to seli their own mobile homes’ violates

principles of substantive due process

under the Fourteenth Amendment to the

Constitution or the prohibition on

takings without just compensation under

the Fifth and Fourteenth Amendments. it

has broad consequences for residents of

New Jersey.

Approximately 26,000 households In

New Jersey reside in mobile homes. N.J.

State Data Center, 1990 U.S. Census of

Population and Housing, STF1i, Profile 8

(1991). Approximately 90 percent of

these mobile homes are located in mobile

nome parks. Report and Recommendations

of the Mobile Home Study Commission 93

(1980) (hereinafter “Mobile Home

Report"). | Following extensive study,

- The Mobile Home Study Commission was

estab! ished by the New Jersey

Legisiature. 1977 N.J. Laws, Jt. Res.

No. 3. lt was mandated to study the

problems of restrictive zoning,

regulation, financing, and taxation of

mobi!e homes In New Jersey. id. Its

250-page report provides a comprehensive

picture of mobile homes and mobile home

parks In New Jersey. The Legistature

created a second commission, the Mobile

Home Taxation Commission, specificaily to

study the Issue of local taxation of

mobile nomes and mobile home parks. 1982

N.J. Laws, c. 204. Its report, Final

Report of the Mobile Home Taxation

Commission (1983) (hereinafter "“Mobilie

Home Taxation Report"), together with the

Mobile Home Commission Report, were the

basis for a comprehensive package of

legislation enacted by the New Jersey

Legisitature in 1983. 1983 N.J. Laws, cc.

386, 387, 388, 399, and 400 (codified in

scattered sections of the New Jersey

Statutes). The Legislature also had

before it the decision of the New Jersey

Supreme Court, Southern Burlington County

NAACP v. Mt. Laurel Township, 92 N.J.

(Footnote continues on next page)

the New Jersey Legislature has adopted a

comprehensive set of regulatory statutes

governing mobile homes and mobile home

parks. Affordabie Housing Act of 1983,

N.J.Laws, ¢c.386 (codified at N.J.S.A.

40:55D0D-100 et seq.); Mob!l le Home Owners

Rights Act, N.J.S.A. 46:8C-2 et seq., as

amended by 1983 N.J.Laws, c. 399; 1983

N.J.Laws, c. 388 (codified as N.J.S.A

§2:270-121, regulating safety of mobile

homes under the state construction

code); 1983 N.J.Laws, c.400 (codified at

N.J.S.A. 54:4-1.2 et seq., exempting

(Footnote continued from previous page)

158, 456 A.2d 390 (1983) (Mt. Laure! !1),

which analyzed mobile homes as a source

of affordable housing, and a study

prepared by the Center for Urban Policy

Research of Rutgers-the State University

at the joint request the New Jersey

League of Municipalities and the New

Jersey Builders Association, Burchel! et

at, Mount Laurel Ii: Challenge and

Delivery of Low Cost Housing (1983)

(nereinafter “Low Cost Housing").

moblie homes in mobile home parks from

local property taxation and authorizing

municipalities to charge mobiie home

owners service fees in iieu of property

taxes).

Among other things, the New Jersey

Legislature has prohibited evictions by

mobile home park operators without Just

cause, N.J.S.A. 2A:18-61.1; prohibited

park operators from refusing to rent

spaces to purchasers of mobile home

units In the park without Just cause,

N.J.S.A. 46:8C-3, and has delegated to

municipalities the authority to regulate

and ticense moblie home parks, N.J.S.A.

40:8C-8. Many of the municipalities

that have concentrations of mobile home

parks have exercised this delegated

power to regulate rents. Few of these

municipalities have elected to permit

“vacancy decontro!."> The househoids

who occupy these mobile homes thus have

a large stake in the validity of this

ie There are 34 municipalities in New

Jersey that have 200 or more mobite

homes. Approximately 70 percent of ai!

mobile homes in New Jersey are located in

these communities. N.J.State Data

Center, 1990 Census of Population and

Housing, STF1, Profile 8 (1991). Of

these, 17 municipalities have adopted

rent regulations covering mobile home

parks. N.J. Dept. Community Affairs,

Rent Control Survey (1991).

Approximately 10,000 moblie homes are

located in these 17 municipalities.

N.J.State Data Center, 1990 Census of

Population and Housing, STF1, Profile 8

(1991).

3. "Vacancy decontro!” refers to

provisions In some rent control

regulations that permit the tandiord to

raise rents without IIimit any time the

apartment (or, In this context, the

mobile home pad) Is vacant. Among the 17

municipalities In New Jersey with

significant concentrations of mobile

homes that regulate rents, only slightly

more than a third (6) have vacancy

decontro!l. N.J. Dept. of Community

Affairs, Rent Control! Survey (1991).

comprehensive body of state and loca!

regulation.

New Jersey's regulation of mobiie

homes and mobile home parks is essen-

tlaily identical of that of California.

In a recent decision, the Third Circuit

Court of Appeals, adopting the _ legal

theories advanced by petitioners in this

case, held that mobile home park

operators who challenged the combination

of state regulation of mobile home parks

and local rent regulation stated a valid

claim of unconstitutional taking without

Just compensation. Pinewood Estates of

Michigan v. Barnegat Township Leveling

Board, 898 F.2d 347 (3rd Cir. 1989).

The Department has extensive ex-

perience and expertise In matters

relating to affordable housing. Since

its Inception, it has represented the

interests of lower Income residents of

the state in a wide variety ot ltega! and

administrative proceedings to secure and

protect their access to affordable hous-

ing. See, e.g., Southern Bur | ington

County NAACP v. Mount Laurel, 67 N.J.

151, 336 A.2d 713, cert. denied, 423

U.S. 808 (1975) (Mt. Laure! 1)

(affordable housing In the suburbs); Mt.

Laurel IP supra (same) ; Hoimde!

Buliders Association v. Holmdel, 121

N.J. 550, 583 A.2d 277 (1990)

(affordable housing trust funds);

Prowitz v. Ridgefieid Park Village, 122

N.J.199, 584 A.2d 782 (1991) (property

taxation of tow Income housing).

In particular, the Department has

extensive experience in matters relating

both to rent regulation and to mobile

homes. The Department of has repre-

sented the Interests of New Jersey

residents In numerous’ proceedings in-

volving the !tegalility and implementation

of municipal rent control ordinances.

See, e.g., AMN, Inc. v. South Brunswick

Township Rent Leveling Board, 93 N.J.

518, 461 A.2c 1138 (1983); Property

Ownwers Association v. North Bergen, 74

N.J. 327, 378 A.2d 25 (1977); Hutton

Park Gardens v. West Orange, 68 N.J.

543, 350 A.2d 1 (1975). It appeared as

amicus curlae before this Court ina

case involving the tegality of municipal!

rent controi in Fisher Vv. Berkeley,

Supra. it has also represented the In-

terests of New Jersey residents in

proceedings Involving public taw and

policy affecting mobile homes and mobile

home parks. See, e.g., Mount Laurel i!,

supra; Taxpayers Association of Weymouth

Township v. Weymouth Township, 71 N.J.

249, 364 A.2d 1016 (1976). it played an

active role in proceedings before both

the Mobile Home Study Commission and the

Mobile Home Taxation Commission.

The Oepartment appears as amicus

curiae to address the significance of

municipal rent control to mobile home

owners In New Jersey and the Impact of a

decision invalidating such ordinances on

the grounds asserted by petitioners.

The Department submits this brief

pursuant to Rule 37.5. It Is a subdivi-

sion of the State of New Jersey. it Is

authorized to appear in Its own name

through the head of the agency, the

Public Advocate of New Jersey. N.J.S.A.

52:27E-29, 32(b), 42.%

4. The Department does not appear in

this matter on behalf of the State of New

Jersey, which Is represented solely by

the Attorney of General of New Jersey.

N.J.S.A. 52:27E-42.

SUMMARY OF THE ARGUMENT

The combination of loca! rent con-

tro! of mobile home parks without

vacancy decontrol and state statutes

forbidding park operators from refusing

to rent mobile home park pads to pur-

chasers of moblie home units located in

their parks represents a rational and

carefully balanced policy of economic

regulation designed to benefit both

mobi!e@ home park owners and mobile home

owners. New Jersey ltaw in this area ap-

pears to be essentially identical to

that of California. In New Jersey,

however, the origins and rationale of

this balanced policy are laid out with

exceptional clarity In the reports of

two legislative study commissions and a

series of legislative enactments. The

history of New Jersey's regulatery

legistation IIiltuminates the policies un-

derlying Callfornia’s regulation.

In adopting these reguliat/ons, the

New Jersey Legislature did not merely

intend to keep down the costs of lIiving

In a moblie home. Rather these regula-

tlons were part of a ltarger !egisiative

strategy designed to respond to a series

of pollcy concerns: 1) in a time of

housing shortage, mobile homes were _ in-

sufficiently utilized as a source of

affordable housing; 2) exclusionary

zoning barred mobile homes from al! but

a few communities; 3) mobile home owners

were perceived prejudicially as persons

without any tangible stake in thelr com-

munities or homes; 4) the prevalence of

exclusionary zoning and "“closed“ parks

gave park operators a degree of monopoly

power over mobile home owners. it

enabled park operators to exploit mobile

home owners through excessive rents and

fees and arbitrary rules.

This comprehensive regulatory

strategy sought to address all of these

concerns. Necessarily this entaliled

striking a legisiative balance among

conflicting goals. As a result iIn-

dividual elements of the strategy, when

viewed in isolation, may seem to con-

fiict with some of these goals. Both

municipal rent control without vacancy

decontro! and the statute forbidding

mob!i!e home owners from refusing to rent

to purchasers of mob!i!le homes on site

were designed to reduce the power of

park owners to exploit mobliie home

cwners and to eliminate specific abuses:

the charging of excess!ve rents and ex-

tortlionate fees and the arbitrary

refusal by park owners to re-rent pads

to purchasers of existing mobile home

owners in the park. The New Jersesy

Legislature appreciated that these

regulations taken together might’ In-

crease both the initial prices that park

owners might charge for mobile homes and

the prices the mobile home owners might

charge on resale. The Legisiature

deemed this an acceptable trade-off for

reducing the power of park owners to ex-

plolt mobliie home owners. Other

components of the regulatory strategy

sought to reduce prices by Increasing

opportunities and incentives for the

construction and expansion of mobile

nome parks and fostering Increased com-

petition among parks.

Substantive due process merely re-

quires that economic regulations bear a

rational relationship to legitimate

governmental purposes. Placed in con-

text, these regulations easily satisfy

that requirement.

These regulations do not effect a

regulatory taking !n violation of the

Takings Clause. They do not deprive park

operators of a fair return on thelr

property. Even if the Takings Clause

imposes a higher standard of Judicial

review of the wisdom or efficacy of

economic regulations than principles of

substantive due process, these regulia-

tions easily meet that standard.

Finally, these regulations do not

effect a physical taking of petitioners’

property. Property owners who operate

mobile home parks do so for the purpose

of renting pads to third parties. They

voluntarily elect to permit third

parties to occupy their property. They

need not do so. They can take pads off

the market and occupy the property them-

selves or use it for some other purpose.

When state law forbids a park owner from

refusing to re-rent to the purchaser of

a mobile home in the park except for

just cause, it is not forcing the

property open his property Involuntarily

to third parties. He has already

elected to do. so. The government is

merely placing reasonabie restrictions

upon his choice of third parties. Such

restrictions do not constitute a taking.

The purported additional profit

that this regulatory scheme permits the

selier of a mobile home to reap adds

nothing to petitioners’ case. This ad-

ditional profit Is solely the

consequence of the regulatory scheme it-

self. 1f petitioners preval!l and the

regulatory scheme is struck down, the

purported additional profit does not

fall to the park operator; It -simply

disappears. That the park operator's

tenant might make an additional profit

from the regulatory scheme does not

deprive the park operator of anything

that is rightfully his.

As illuminated by the legislative

history of regulations in New Jersey,

these regulations viewed in context are

designed to foster the availability of

mebile homes and mobile home parks as

affordabie housing while depriving park

operators of the opportunity obtain ex-

cessive rents and fees. The regulations

do not make park owners them bear any

unfair burden, they merely restrict park

owners to the profits they could make if

economic markets functioned more freely

and normally.

ARGUMENT

POINT |

THE COMBINATION OF STATE AND

LOCAL REGULATION OF MOBILE HOMES

REPRESENTS a RAT |ONAL AND

CAREFULLY BALANCED POLICY OF

ECONOMIC REGULATION AND IS A

NE | THER A VIOLATION OF

SUBSTANTIVE DUE PROCESS NOR AN

UNCONST | TUT |ONAL REGULATORY

TAKING WITHOUT JUST COMPENSATION

A. The Combination of State and Loca!

Regulation of Mobile Homes Represents a

Rational and Carefully Balanced Policy

of Economic Regulation

Contrary to the arguments of the

petitioners, the combination of local

rent control of mobile home parks

without vacancy decontro!l and state

statutes forbidding park operators’ from

refusing to rent mobile home park spaces

to purchasers of mobile home units lo-

cated In their parks represents a

rational and carefully balanced policy

of economic regulation designed to

benefit both mobi ie home park owners and

moblie home owners. New Jersey law in

this area appears to be essentially

identical to that of California. See

Pinewood Estates, 898 F.2d at 354. In

New Jersey, however, the origins and

rationale of this balanced policy are

lald out with exceptional clarity In the

reports of two legislative study commis-

sions and a series of tegistative

enactments. The history of New Jersey’s

regulatory legistation illuminates the

policies underlying California’s regula-

tlon.

The New Jersey Legislature acted

in response to four policy concerns.

First, New Jersey suffers from an acute

and continuing shortage of safe, decent

affordabie housing. Mobile Homes

Report, supra at 2, 18-26, 29-33;

N.J.S.A. 40:55D-101(a)-(c).° — Mobile

homes potentially provide the most af-

fordable non-subsidized housing

available. Mobile Home Report, supra at

2, 52-57; Mob!llie Home Taxation Report,

supra at 22; N.J.S.A 40:550-101(e). In

quality, modern moblie homes are vir-

tually indistinguishable from

conventional! "stick-bul it" housing.

Mobilte Home Report, supra at 6; Mobile

Home Taxation Report, supra at 22-24;

N.J.S.A 40:550D-101(d). On-site, they

appreciate steadily in value. Mobile

Homes Report, supra at 195-96. it Is

5. New Jersey continues to suffer from

this housing shortage. A recent study by

the state’‘s Department of Community

Affairs estimated that approximately

675,000 very tow, tow, and moderate

income households in the state suffer

from serious housing problems. N.J.

Dept. of Community Affairs, State of New

Jersey Comprehensive Housing

Affordability Strategy (CHAS) 50 (Draft,

August 21, 1991).

therefore desirable to foster the use of

moblle homes and the creation of mobile

home parks.

Second, mobile homes and mobile

home parks have historically been a dis-

favored ltand uses in New Jersey. Mobile

Home Report, supra at 61-132. More than

80 percent of al! municipalities In

state prohibit mobile home parks out-

right. Mobile Home Taxation Report,

supra at 23. Those that permit them of-

ten do so on terms that are highly

restrictive, for exampie itimiting them

to senior citizens. Moblle Home Report,

supra at 99-103. As a result of- these

local exclusionary policies, mobile

homes make up only a very small propor-

tion of the housing stock and are

concentrated In a handful of

municipalities. Mobile Home Report,

supra at 92-103; Mob! !e Home Taxation

Report, supra at 25; N.J.S.A 40:55D-

101(d).°

Third, mobliite home dwellers have

historically been perceived as un-

desirable neighbors. They have been

perceived as transients who have no

stake in the community or even in thelr

own homes. AS a consequence, the per-

ception has been that mobile home parks

are a locus of undesirable (and perhaps

criminal) activities and naturally and

inevitably deterlorate Into siums.

Mob!lie Home Report, supra at 103-27.

This perception is no longer accurate

(if, Indeed, it ever was). Mobile homes

6. Out of New Jersey's 567

municipalities, only 34 have more than

200 mobile homes. More than 70 percent

of all mobile homes in the state are

concentrated in these 34 communities.

N.J. State Data Center, 1990 U.S. Census

of Population and Housing, STF1, Profile

8 (1991).

are “moblie”" more in name than In fact.

The typical mobile home seldom leaves it

original site during Its useful life.

Mobilie Home Report, supra at 6; Cf.

Koester v. Hunterdon County Board of

Taxation, Teo Bede 381, 386, 399 A.2d

656, 658 (1979) (describing difficuity

and cost of removing a modern mobiie

home from its’ site). This perception

must be overcome if mobile homes are to

become a widely available housing op-

tlon.

Fourth, approximately 90 per cent

of all mobile homes in New Jersey are in

mobile home parks. Mobile Homes Report,

supra at 93. Mobile home owners and

mobile home parks have a compi icated

relationship that leaves the mobile home

owner potentially very vulnerable to ex-

ploitation by mobile home park

operators.

24 .

Mobile home dwellers own their

moblie homes. They rent “pads” from the

mobile home park owner. The rental fee,

however, does not include merely the

physical space, but also a wide variety

of services, including many services

that other homeowners receive from

municipal government, e.g., street main-

tenance, snow removal, street Iighting,

garbage removal, water and sewer serv-

ice. Mobile Homes Taxation Report,

supra at 13-14; N.J.S.A 54:4-1.3.

Many mobile home parks in New

Jersey are “closed,” |.e. one cannot

bring a mobile home into the park. One

must elther purchase an existing mobile

home in the park or purchase one from

the park owner. See Hearing before the

Mobi!ie Home Taxation Commission 53-54

(May 19, 1983) (Statement of Emmanuel

Brown, mobile home owner); Id. at 64-65

(Statement of Charies Reed, mobile home

park developer and operator). The com-

bination of excliuslonary zoning and the

prevalence of "closed" parks give the

mobile home park owner a degree of mo-

nopoly power. He can price mobile homes

well above the price a dealer could ob-

tain. Mobile Home Report, supra at 61,

Mobile Home Taxation Report, supra at 5-

6, Low Cost Housing, supra at 364-65.

lf the mobile home park owner

evicts the mobile home owner and forces

him to remove his mobile home, the

mobilie home owner ioses, not only his

place to live, but also most or all of

the value of the moblie home, since the

combination of exciuslionary zoning and

the prevalence of “closed” parks means

that there is only a I!imited market In

the state for used mobile homes not on a

site. Indeed, the mobile home owner

cannot even move voluntarily without

great financial! loss, uniess the park

operator agrees to rent the pad to the

buyer of the mobile home. This places

the mobile home owner at the mercy of

the park operator. it potentially per-

mits the park operator to charge

exorbitant rents. it also potentially

permits him to charge extraordinary fees

to permit the mobile home owner to sei!

his home on-site. As the Mobile Home

Taxation Commission put it, the mobile

home owner is a “captive” of the park

operator. Mobile Home Taxation Report,

supra at §.

On the other hand, if the mobile

home owner sells the unit, the pur-

chaser, even if he intends to move it,

may literally be unable to find another

place to ltocate it. Moblie Home Taxation

Report, supra at 5. The park operator,

not a party to this transaction, may

find himself, however reluctantly,

obliged to accept the new owner as a

renter.

The New Jersey Legislature sought

to respond to these concerns through a

combination of means.

It permitted mobile home park

operators to maintain closed parks as a

fiscal incentive to encourage the estab-

lishment of mobile home parks. Park

operators may exercise the exclusive

right to make the first sale of a mobile

home to be located on each pad.

N.J.S.A. 46:8c-9.” The Legislature did

so even though it understood that this

would drive up the costs to the mobile

home purchasers and impede the goal of

we The Mob!l te Home Study Commission

characterized this as authorizing a

"modified closed park system.” Mobile

Home Report, supra at 63n.*.

making mobile homes a source of affor-

dable housing.

The Legisliature chose not to regu-

late the prices of mobile homes, either

on initial salie or resale. Regulating

the price on initial sale would have

defeated the purpose of tlegitimating

closed parks. The Legislature does not

appear to have even entertained the idea

of regulating resale prices. The

Legisiature was Impressed by the fact

that mobile homes on-site appreciate in

vaiue. Mobile Homes Report, supra at

195-96. Owners have a steadily increas-

ing financial stake both In the mobile

homes themselves and In the park In

which they are located. The Legislature

sought to foster this phenomenon as a

means of countering the perception that

mobile home dwellers are undesirable

neighbors. Regulating resale prices

would have defeated this goa!.

The Legislature required mobile

home owners to submit prospective pur-

chasers to the park operator for prior

approval but prohibited mobile home park

operators from refusing to rent pads to

the purchasers of mobile home on site

without good cause, N.J.S.A 46:8C-3(a),

and prohibited operators from charging

fees for agreeing to such rentals,

N.J.S.A. 46:8C-2(e).

The Legislature also prohibited

park operators from evicting mobile home

operators except for good cause.

N.J.S.A 2A: 18-61.1.

The Legistature determined that

mobile homes in mobile home parks should

not be taxed as real property, since

mobile home owners pay park operators

for many services that other homeowners

receive from municipalities. N.J.S.A.

54:4-1.5. Instead, the Legisitature

author | zed municipalities to charge

service fees for those services that

they do provide. N.J.S.A. 54:4-1.6

Finally, the Legisitature

authorized municipalities to regulate

all aspects of the operation of mobile

home parks, including rents. N.J.S.A.

46:8c-8.° Such rent regulation must

assure the efficient operator a fair

return, Mayes v. Jackson Township Rent

Leveling Board, 103 N.J. 362, 366-67,

511 A.2d 589, 591 (1986), cert. denied,

8. The Mob! !e Home Taxation Commission,

white acknowledging the arguments for

comprehensive rent control of mobile

homes, determined that this Issue was

beyond its mandate. Mobile Home Taxation

Report, supra 5-6. in New Jersey, as in

California, rent control has historically

been a local function rather than a state

function. See Inganamort v. Fort Lee, 62

N.J. 521, 303 A.2d 298 (1973).

475 U.S. 1000 (1987), and must provide

an administrative mechanism for resolv-

Ing claims of hardship, Hutton Park

Gardens, supra, 68 N.J at 575n.10, 350

A.2d at 18n. 10. Although the

Legisiature neither mandated nor

prohibited vacancy decontrol, most

municipalities that regulate rents in

mobile home parks do not have vacancy

decontrol. The policy rationaie for

this loca! legistative decision is

clear. Rent control Is Intended to

prevent the park owner to expioit his

monopoly position to demand excessive

rents sal a mobile home owners. Vacancy

decontro! permits the park operator to

demand such rents each time a pad Is re-

rented.

This complex body of state and io-

cal regulation, carefully tatltored to

balance the interests of park operators

and mobile home owners and to. further

the public policy of increasing the

avallability of mobile homes as affor-

dablie housing, has created a novel

hybrid relationship between park

operator and mobite home owner. The New

Jersey Legistature clearly envisioned

that these reforms would cause this

relationship to evolve over time. It

looked forward to the day when the ab-

sence of exclusionary zoning would

vastly increase opportunities for

development of mobile home parks and

competition among park owners, perhaps

obviating the need for such comprehen-

sive state and local regulation.

The Legistature has actively

sought to make this relationship benefi-

clal to park owners. It has sought to

foster greater opportunities for the

creation and expansion of mobile home

parks by discouraging continuing excliu-

slonary zoning. it has legitimized

closed parks and permitted park owners

to obtain an extraordinary profit in the

initial sale of mobile homes. It has

insulated park owners against some of

the hazards of operation of mobile home

parks. At the same time, by providing

for state regulation or enabling

municipal reguiation, it has sought to

diminish the vulnerability of tenants to

exploitation by mobile home park

operators.

B. The Combination of State and Local

Regulation of Mobile Homes Does _ Not

Violate Principles of Substantive DOue

Process.

The petitioners seek to extract

two elements out of the complex

regulatory relationship between park

operators and mobile home owners and at-

tack them In Isolation. The petitioners

claim that the combination of state law

forbidding park operators from refusing

to rent to purchasers of mobile homes

currently in the park without just cause

and local rent regulation without

vacancy decontrol! fails to satisfy the

minimum requirements of substantive due

process.

As l!tuminated by the legislative

history of these regulations in New

Jersey, these arguments are clearly

wrong. Petitioners assert that the only

Justification for these regulations

would be to keep mobile homes affor-

dable. That, however, is but one of

the justifications for these regula-

tions. The New Jersey Legislature had a

more complex objective. It certainly

desired to foster mobile homes as a

source of affordable housing. It also

sought simultaneously to encourage the

creation of mobile nome parks, even lf

that nad the effect of making mobile

homes somewhat less affordable. It

recognized that the prevaience of closed

parks and exciusionary zoning made

mobile home owners to some degree

“captives” of park operators and sought

to protect mobile home owners from park

operators’ exploitation of that fact to

charge excessive rents and fees. it

also sought to neutralize the impression

that mobile home owners are transients

without a stake In their homes, parks,

or communities, and therefore to create

circumstances In which mobile homes

retain thelr value or appreciate. The

goals are in conflict, and the

Legislature was obliged to balance them,

exercising Its best legisiative Jjudg-

ment.

Viewed In Isolation, each of the

provisions of the regulatory scheme may

seem to conflict with some the ilegisia-

tive goals. The New Jersey Legislature

appreciated that \f park owners were

given the exciusive right to sel! mobile

homes to renters of vacant pads, this

might result in prices for new mobile

homes rising. it deemed this an accept-

able trade-off for giving property

owners a fiscal incentive to construct

mobile home parks. It appreciated that

lf the tax burdens of mobile nome owners

were reduced by substituting municipal

service fees for real property taxes,

the price of used (and even new) mobile

homes might rise. It deemed this an ac-

ceptable trade-for a more equitable and

consistent tax policy.

In general, the Legisiature recog-

nized that any public regulation that

Increases the attractiveness of a par-

ticular park, whether it be exclusionary

zoning that restricts competition or

municipal rent control that reduce rent

levels, could Increase the price that

purchasers of mobile homes on site would

pay. In particular, it expressly ac-

kKnowledged that one consequence of

pronibiting park owners from refusing to

rent to purchasers of mobile homes in

the park was the this would increase

both the Initial price of mobile homes

sold by the park operator and also the

price on resales by mobile home owners.

Mobile Home Report, supra at 63n.*. It

was prepared to accept this’ possibility

as a trade-off for depriving park owners

of some of the benefits of the monopoly

power that they otherwise held over

mobile home owners.

Taken as a whoie, however, the

various components strike a balance that

advances al! the Legisliature’s purposes.

Thus, considered in the context of

the regulatory scheme as a whole, the

challenged provisions are rationally re-

lated to a tegitimate governmental!

purpose. It is now well-established

that government has broad discretion to

engage in economic regulation, Including

regulations of price. Pennel! v. San

Jose, 485 U.S. 1, 11-14 (1988); Federal

Communications Commission v. Florida

Power Corp., 480 U.S. 245, 253 (1987);

O!son Vv. Nebraska ex rel Western

Reference and Bonding Ass’n, 273 U.S.

418 (1941); Nebbia v. New York, 291

U.S. 502 (1934). Courts have no power

under the Due Process Clause to second-

guess the wisdom or the probable

efficacy of such regulatory policies.

So far as the requirement of due

process is concerned, and in the

absence of other consitutiona!

restrictions, a state is free to

adopt whatever economic policy

may reasonable be deemed to

promote public welfare, and to

enforce that policy by legisia-

tlon adopted to its purposes.

The courts are without authority

either to deciare such policy;

or, when it is declared by the

legisltature, to overrule it. if

the laws passed have a

reasonable relation to a _ proper

legislative purpose, and are

neither arbitrary nor dis-

criminatory, the requirements of

due process are satisfied, and

Judicial determination to that

effect renders the court functus

officio. . . »« With the wisdom

of the pollcy adopted, with the

adequacy or practicality of the

law enacted to forward iS. the

courts are both Incompetent and

unauthorized to deal. [Nebbia,

291 U.S. at §37.]j

As this Court recently reaffirmed

in Pennell, supra, and Fiorida Power

Corp., supra, this doctrine applies to

rent control and other economic regula-

tion of real property, Just as to

regulation of prices of persona!

property and services. Where the legis-

lature has made a determination that

economic conditions, such a housing

shortage or monopo! ization of the

market, make renters vulnerable to ex-

cessive demands’ for rents or fees, the

Court has uniformly upheld governmental

regulation of rents. Pennell, supra;

Florida Power Corp., supra; Bowles Vv.

Willingham, 321 U.S. 503 (1944); Block

v. Hirsh, 256 U.S. 135 (1921). The

Court has’7 similarly upheld regulation

limiting the power of property owners to

terminate rental agreements or to refuse

to re-rent where such regulation ‘ts an

Integral element of the legisiatively

chosen economic and regulatory policy.

Block Vv. Hirsh, supra; Marcus’ Borwn

Holding Co. v. Feldman, 256 U.S. 170

(1921), cf. Fresh Pond Shopping Center

v. Callahan, 464 U.S. 875 (1983)

(dismissing for want of federal! question

appeal challenging termination. provi-

sions of municipal rent regulation as

violating the Takings Clause).

AS set forth above, regulation of

the rents of pad In mobile home parks,

prohibiting termination of rental agree-

nents without good cause, and requiring

park owners to rent to purchasers of

mobile homes already In the park are al!

part of carefully balanced and tailored

regulatory strategy designed to advance

legitimate legisiative purposes. As

such, they are satisfy the requirements

of the Due Process Clause.

C. The Combination of State and Local

Regulation of Mobile Homes Is Not an

Unconstitutional Regulatory Taking

Without Just Compensation.

The petitioners aitenatively cast

their substantive due process arguments

as a claim that the challenged combina-

tion of state and toca! regulations is

an unconstitutional regulatory taking

without just compensation. Citing

Nolltan v. California Coastal Commission,

483 U.S. 825 (1987), they suggest if the

same arguments are asserted under this

alternative label, the standard of

review Is more stringent: the regula-

tion must not merely be rationally

related to a legitimate governmenta!

purpose but must “substantially advance"

that purpose.

This analysis is unsound as a mat-

ter of law. The enhanced standard of

review enunciated in Nollan does not ap-

Ply to generic claims of reguiatory

taking. it applies rather to Instances

where government seeks to accomplish a

physical taking that would otherwise be

a per se violation of the Takings

Clause, Loretto Vv. Teleprompter

Manhattan CATV Corp., 458 U.S. 419

(1982), but seeks to do so indirectiy--

not by selzing the property interest

outright, but conditioning receipt of

some benefit, such a approva! for cer-

tain types of development, upon the

property owner “voluntarily” ceding the

property Interest. As a threshold ques-

tion, the courts must determine whether

the condition has some public policy

Justification, whether It “substantially

advances a legitimate state interest."

Nollan, 483 U.S. at 434-36.

Expanding this enhanced standard

of review to encompass generic claims of

regulatory taking is Inconsistent with

sound principles of federalism and

separation of powers. Nearly any claim

that economic regulations violate sub-

stantive due process can be recast as 4

claim of regulatory taking. The courts,

however, have no more competence or

authority to review the wisdom or ef-

f icacy of governmental economic and

regulatory policies when those policies

are challenged under the rubric of

“regulatory taking” than when they are

attacked under the rubric of

“substantive due process." The

principles of federalism and separation

of powers that counsel deference to

legistative judgment where ciaims are

made under the Due Process Clause coun-

se! the same deference when the

Identical claims are made under the

Takings Clause.

This Court has consistently held

that economic reguiation of tandiord

tenant relationships is not a per se

taking, even when It diminishes’ the

profit or freedom of choice of the

property owner. Pennell, 485 U.S. at

12n. 6; Florida Power Corp., 480 U.S. at

250-53; Loretto, 458 U.S. at 440.

Except where the regulation effects a

physical taking of the property,” the

Takings Clause requires onlty that the

regulation not deprive the property

owner of a reasonable economic return in

light of all the relevant circumstances.

Florida Power Corp., 480 U.S. at 253-54:

Permian Area Basin Cases, 390 U.S. 747,

9. AS discussed below, this regulation

does not effect a physical taking of

petitioners’ property.

768-69 (1968). it Imposes no helghtened

standard of judicial review of the wis-

dom or efficacy of the regulation. 0

The petitioners do not claim that

the combination of state and local

regulation challenged in this proceeding

deny them a reasonable economic return

on their property. They claim merely

that they are not being permitted to

reailize the value potentially added to

their property by the very regulations

they are attacking. They contend that

the combination of rent regulation

without vacancy decontro! and the

statute forbidding park operators’ from

refusing to re-rent a pad to the pur-

chasers of the mobile home selected by

10. To the extent that dictum in Nollan

suggests otherwise, 483 U.S. at 834n. 3,

the Department urges Court not to fol low

that dictum.

the current owner increases the resale

value of mobile homes that are located

on pads In regulated parks.'! They com-

plain that their property has been taken

because any such windfall! accrues to the

mobile home owner not to the park

operator.

As the Court of Appeals noted In

Pinewood Estates, there is no logical

reason to believe that the park owners

are any worse off under this combination

of state and local regulation than. they

would be under a pure rent contro! or-

dinance, !|.e., without vacancy decontro!

11. Since this case was dismissed by the

trial court on demurrer, the Court must

assume for purposes of this appeal that

this Is so. It Is not self-evident,

however, that the rent contro! has an

impact on mobile home resale prices

different in kind or magnitude from other

Public policies, such as excluslonary

zoning, legitimation of closed parks, or

variation among municipalities in the

level of service fees in Illeu of taxes.

and without restrictions on their power

to evict or to refuse to re-rent to pur-

chasers of existing mobliie homes. In

that case, they they could freely evict

mobl!ie home owners, force the owners to

remove their homes, and rent to other

mobile homeowners chosen by the park

operator at the regulated rent levels.

There would be no windfall, even under

petitioners’ analysis, and petitioners

would have no claim under the Takings

Clause. 898 F.2d at 353n. 10. The

mobile home owner might be worse off,

but the park owner would be no better

oft. '*

12. The petitioners challenge the

combination of the state statute

regulating rerenta!l of to purchasers of

mob!i!e homes and the absence of vacancy

decontrol!l in the local rent regulations.

Obviously they would prefer the remedy of

institution of vacancy decontro! by the

municipality. They are not, however,

(Footnote continues on next page)

As this scenario ilitustrates, the

purported windfall petitioners claim to

be deprived of is over and above the

reasonable economic return to which they

are entitied. it can give rise to no

legitimate claim of regulatory taking.

Moreover, the challenged provi-

sions clearly satisfy the No! lan

standard. The Court emphasized In

Nollan that

Our cases have not elaborated on

the standards for determining

what constitutes a “legitimate

state interest” or what type of

connection between the reguia-

tion and the state interest

satisfies the requirement that

the former “substantially

advance” the latter. They have

made clear, however, that a

(Footnote continued from previous page)

entitled to this remedy, even if they

prevall. The state and local legisiative

bodies could choose to preserve the ioca!

rent regulations intact and repea!i or

modify the state regulatory statute.

broad range of governmental pur-

poses and regulations satisfies

these requirements. [483 U.S.

at 834-35 (footnote and cita-

tions omitted) ]

As illuminated by the legislative his-

tory of the Identical regulations ‘in New

Jersey, the regulations challenged here,

taken In the context of the state

regulatory strategy as a whole, are

carefully tailored to balance a complex

set of legitimate governmental purposes.

Even if the regulations seem to achieve

none of these purposes perfectly when

viewed in Isolation, when considered

together they contribute suostantially

to the accomplishment of the entire set

of governmental purposes. Since they

substantially advance legitimate -state

Interests and do not deprive petitioners

of a fair economic return, they do not

constitute an unconstitutional!

regulatory taking.

In sum, the challenged regulations

do not violate consitutional principles

of Substantive due process and are not

unconstitutional regulatory takings.

POINT 11

THE COMBINATION OF STATE AND

LOCAL REGULATION OF MOBILE HOME

PARKS DOES NOT CONSTITUTE AN

IMPERMISSIBLE PHYSICAL TAKING

WITHOUT JUST COMPENSATION IN

VIOLATION OF THE TAKINGS CLAUSE.

Petitioners’ contention the chal-

lenged regulations constitute an

unconstitutional physical taking cen-

ters on the state statute that forbids

mobile home park operators from refusing

without just cause to rent pads to pur-

chasers of mobile homes currently In the

park. Petitioners contend that this

permits third parties to occupy thelr

property involuntarily in violation of

the Takings Ciause as construed in

Loretto, supra.

This analysis |!s unsound as a mat-

ter of law. Property owners who operate

mobile home parks do so for the purpose

of renting pads to third parties. They

voluntarily elect to permit third

parties to occupy their property. They

need not do so. They can take pads off

the market and occupy the property them-

selves or use it for some other

purpose. '° When state taw forbids a

13. In this respect this case !s

different from Fresh Pond Shopping

Center, supra. in that case, the Court

held that a challenge under the Takings

Clause to a municipal rent control

ordinance that prohibited evictions

except for cause and prohibited the

property owner from taking the property

off the rental market and using it for

some other purpose so long as any of the

tenants continued to reside in the

bullding raised no substantial federal!

question. In the present case, neither

state nor local regulation denies the

(Footnote continues on next page)

park owner from refusing to re-rent to

the purchaser of a mobile home in the

park except for Just cause, it Is _ not

forcing the property open his property

involuntarily to third parties. He has

(Footnote continued from previous page)

park operator of the right to take his

property out of use as a mobile home park

and put it some other use.

Amicus curiae Manufactured Housing

Association in New Jersey, Inc. suggests

that, at least in New Jersey, mobliie home

park operators do not actually have the

option of turning his property to some

other use. It contends that

municipalltltes have zoned, or would zone,

existing mobile home parks for use solely

as mobile home parks, leaving park

operators with no other option. As

documented at length by New Jersey Mobile

home Study Commission, the reality is

that, far from mandating that property be

used for mobile home parks, few

municloalities in the state even permit

its use for that purpose. Mobile Home

Report, supra at 92-103. Many existing

parks are non-conforming or conditionally

permitted uses. id. at 103n.**,

Municipalities are, if anything, all too

eager to have them converted to other

uses. Thus, this suggestion has no basis

in reality.

already elected to do so. The govern-

ment is merely placing reasonable

restrictions upon his choice of third

parties.

This Court has previously upheld

state laws that restrict the choice of

property owner as to which third parties

he will permit to occupy his’ property

against claims under the Takings Clause,

both In the context of rent regulation,

Block v. Hirsh, supra, and In other con-

texts, e€.g., PruneYard Shopping Center

Vv. Robins, 447 U.S. 74, 83 (1980);

Heart of Atlanta Mote! v. United States,

379 U.S. 241, 259-60 (1964). As the

Court observed in Florida Power Corp.,

it is the element of "required

acqu!iesence” to the occupation by a

third party that is the essence of an

impermissible physical taking. 480 U.S.

at 252.

The Importance of this element is

itlustratea by Loretto and Florida Power

Corp. In the former case, the govern-

ment granted a cable company the right

to put cable !ines on the roof an apart-

ment buliding, over the owner's

objections. The Court struck that down

as an impermissible physical taking. in

the latter case, the power company of-

fered to rent space for cable iines on

its poles, but the government set a rent

level much lower than that demanded by

the power company. The Court upheld

this regulation.

Appellees contend, In essence,

that it is a taking under

Loretto for a tenant invited to

14. Because the government regulations in

Florida Power Corp did not require the

power company to renew or accept

assignment of rental agreements, the

Court did not have occasion to comment on

the significance of its analysis to that

issue. Florida Power Corp., 480 U.S. at

251n. 6.

lease at a rent of $7.15 to

remain at the regulated rent of

$1.79. But it is the iInvita-

tion, not the rent, that makes

the difference. {Florida Power

Corp., 480 U.S. at 252) .

The purported additional profit

that this regulatory scheme permits the

seller of a mobile home to reap adds

nothing to this analysis. As discussed

above, this additional profit is solely

the consequence of the regulatory scheme

itself. if petitioners prevall and the

regulatory scheme Is struck down, the

purported additional profit does not

fail to the park operator; it simply

disappears. That the park operator’s

tenant might make an additional! profit

from the regulatory scheme does not

deprive the park operator of anything

that Is rightfully his.

The Takings Clause is ultimately

concerned with preventing government

“from forcing some people alone to bear

public burdens which, In all fairness

and Justice should be borne by the

public as a whoie.”" First Engiish

Evangel ical Lutheran Church of Glendale

Vv. tos Angeles County, 482 U.S. 304,

318-19 (1987). As documented in the

history of the New Jersey regulations,

mobile nome park owners have been the

beneficiaries of public policies that

nave given them a degree of monopoly

power and enabled them to charge ex-

traordinary rents and demand

extraordinary fees to the detriment of

the public. The complex body of state

and local regulation adopted by

California and New Jersey is designed to

foster the availability of mobile homes

and mobile home parks as affordable

housing while depriving park operators

of the opportunity obtain these exces-

sive rents and fees. it Is not making

them bear any exceptional! burden, merely

restricting them to the profits they

could make If economic markets func-

tioned more freely and normaily. As

Justice Scalla observed in Pennel!:

when commodities have been

priced at a lteve!l that produces

exorbitant returns, the owners

of those commodities can be

viewed as responsibie for the

economic hardship that occurs.

Whether or not that Is an ac-

curate perception of the way 4a

free market operates, its is at

least true that the owners reap

unique benefits from the situa-

tion that produces the economic

hardship, and In that respect

singling them out to relieve it

may not be regarded as “unfair.”

(485 U.S. at 20 (Scalia, Ses

dissenting))

As I|lituminated by legisiative hnis-

tory In New Jersey, just such

considerations motivated regulations

challenged here.

CONCLUS ION

For all the foregoing reasons, the

Public Advocate respectfully urges this

Court to affirm the decision of the

California Court of Appeais.

Respectfully submitted,

WILFREDO CARABALLO, ESQ.

Public Advocate of New Jersey

by David Ben-Asher, Esq.

Assistant Public Advocate

Counsel! of Record

Stephen Elsdorfer

Assistant Deputy Public Advocate

Dated: .December 28, 1991

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.