NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2683-23
SUN PROPERTY MANAGEMENT, INC., d/b/a SUNRISE MOTEL & MCGRATH FAMILY PARTNERSHIP INC., d/b/a HERSHEY MOTEL,
Plaintiffs-Appellants,
v.
THE BOROUGH OF SEASIDE HEIGHTS and THE BOROUGH COUNSEL OF THE BOROUGH OF SEASIDE HEIGHTS,
Defendants-Respondents. ______________________________
Argued January 27, 2026 – Decided July 20, 2026
Before Judges Sumners, Susswein and Augostini.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0300-24.
Christopher R. Shea argued the cause for appellants (R.C. Shea & Associates, attorneys; Christopher R. Shea, of counsel and on the briefs). Kevin Riordan argued the cause for respondents (Kevin Riordan LLC and Rothstein Mandell Strohm Halm & Cipriani, attorneys; Kevin Riordan and Robin La Bue, on the briefs).
Trishka Waterbury Cecil argued the cause for amicus curiae New Jersey State League of Municipalities (Mason, Griffin & Pierson, PC, attorneys; Trishka Waterbury Cecil, of counsel and on the briefs).
Ezra D. Rosenberg argued the cause for amicus curiae American Civil Liberties Union of New Jersey Foundation (Ezra D. Rosenberg and Jeanne LoCicero, on the briefs).
PER CURIAM
Plaintiff Sun Property Management, Inc., doing business as Sunrise
Motel, appeals the April 12, 2024, Law Division order dismissing its complaint
against defendant Borough of Seaside Heights (the Borough). In an attempt to
curb disorderly behavior by young adults during prom and graduation season, in
August 2023, the Borough enacted an ordinance (the Ordinance) raising the age
to rent a hotel or motel room from eighteen to twenty-one between April 15 and
June 30 of each year. Before the Ordinance went into effect, plaintiff brought
this action, alleging that the Ordinance violates the rights of eighteen-to-twenty-
one-year-olds seeking to rent a hotel room during the covered period.
Specifically, plaintiff claimed the Ordinance constitutes unlawful age and race
discrimination under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to
A-2683-23 2 -49; violates the substantive due process and equal protection rights of hotel
customers under both the state and federal constitutions; and is impermissibly
vague in that it fails to make clear what a hotel or motel must do to comply with
its requirements.
We affirm the court's dismissal of plaintiff's LAD claims, vagueness
claim, and federal constitutional claims, which the trial court properly rejected
by upholding the Ordinance under rational basis review. However, we reverse
the trial court's dismissal of plaintiff's equal protection and substantive due
process claims under the New Jersey Constitution. Equal protection and
substantive due process claims under the New Jersey Constitution are not
analyzed under the rational basis, intermediate, and strict tiers of scrutiny, but
rather a more flexible and fact-sensitive balancing test. Applying that test, we
conclude that plaintiff has pled sufficient facts to state its claims under the New
Jersey Constitution. We therefore remand for reasonable discovery—in the trial
court's discretion—with respect to these claims.
I.
We discern the following facts and procedural history from the record.
On August 16, 2023, the Borough enacted the Ordinance, precluding persons
under twenty-one years old from renting hotel or motel rooms during the "prom
A-2683-23 3 season" period between April and June. Specifically, the Ordinance provides,
in relevant part:
§179-14 Regulations Pertaining to Hotels and Motels.
A. During the period commencing April 15 and ending at midnight on June 30 of each year, no room in a hotel or motel shall be rented to any person under [twenty-one] years of age. The primary occupant of each room shall be [twenty-one] years of age or older and must actually occupy the unit during the term of the rental. In the event any occupants are under [twenty- one] years of age those occupants shall be the immediate family member or under legal guardianship of the primary occupant or another occupant that is [twenty-one] years of age or older. Both the primary occupant executing the rental agreement and the hotel or motel owner shall be responsible for compliance with this provision, and both shall be responsible for a violation.
By its terms, the Ordinance subjects violators to a possible $1,000 fine, a
term of incarceration, community service, or any combination of the three.
In enacting the Ordinance, the Borough council made the following
findings: "for many decades during the months of April, May and June the
Borough has experienced substantial numbers of unsupervised minors who rent
rooms in the Borough to celebrate high school proms and graduations;" the
number of unsupervised minors has "grown because of curfews and other
restrictions imposed by neighboring municipalities;" the crowds of minors were
A-2683-23 4 responsible for "unlawful and unsafe conditions;" the minors engaged in "violent
and disorderly behavior [causing] excessive and unnecessary noise, parking
complaints, vandalism, destruction of public and private property, fights . . .
underage drinking and public intoxication, underage possession and use of
cannabis, and public urination;" the Borough was devoting "substantial
manpower and financial resources" to address the problem and "public safety
employees and volunteers [were] put in harm's way;" and an earlier ordinance
adopted in 2018 set a minimum age of eighteen to rent any premises but this had
not mitigated the problems.
On January 23, 2024, plaintiff, 1 the operator of a motel in the Borough,
brought this action seeking damages and an injunction preventing enforcement
of the Ordinance. Plaintiff also requested temporary restraints. In its complaint,
plaintiff claimed that the Ordinance violates the New Jersey Civil Rights Act
(CRA), N.J.S.A. 10:6-1 to -2, by depriving their guests of equal protection and
substantive due process under both the federal and New Jersey Constitutions;
1 Two parties initially brought this case: Sun Property Management and Herb McGrath Family Partnership, Inc., doing business as Hershey Motel (Hershey). However, on April 11, 2024, the parties stipulated to dismissal with prejudice with respect to Hershey.
A-2683-23 5 and the LAD, by discriminating against their guests on the basis of age and race. 2
Plaintiff also argued that the Ordinance is impermissibly vague, as it fails to
make clear what a hotel or motel must do to comply with its requirements. 3
On March 5, the Borough moved to dismiss the case for failure to state a
claim under Rule 4:6-2(e). On March 8, the court heard oral argument on
plaintiff's request for temporary restraints, which it denied.
On April 12, after a second oral argument, the court dismissed the
complaint, rendering an oral decision. As an initial matter, the court found that
plaintiff had no standing under the LAD or the CRA because a motel owner
2 Plaintiff contends that the Ordinance is racially discriminatory because the covered "prom season" period includes the holidays of Cinco de Mayo, a celebration of Mexican heritage, and Juneteenth, which commemorates the end of slavery in the United States and is considered a celebration of African American resilience. 3 Plaintiff did not explicitly articulate its vagueness argument in its complaint. However, plaintiff made that argument in its March 8, 2024 reply brief in support of the motion for temporary restraints and also raised it during both oral arguments. On appeal, defendant responds to plaintiff's vagueness argument and does not contend that it was not before the motion court. In these circumstances, and in light of our liberal pleading standards, we consider plaintiff's vagueness claim to have been adequately pled and properly before us on appeal. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) ("[A] reviewing court 'searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of [a] claim . . . .'" (quoting Di Cristofaro v. Laurel Grove Memorial Park, 43 N.J. Super. 244, 252 (App. Div. 1957))).
A-2683-23 6 cannot stand in the shoes of a potential guest and file an action on the guest's
behalf. Nevertheless, the court proceeded to address plaintiff's claims on the
merits. Beginning with plaintiff's LAD claims, the court determined that
plaintiff's age discrimination claim was meritless because the LAD does not
prohibit places of public accommodation, like motels, from discriminating based
on age. See N.J.S.A. 10:5-12(f). The court's decision dismissing the complaint
did not address plaintiff's racial discrimination claim under the LAD. 4
Turning to plaintiff's CRA claims, the court began by stating that "[w]here
a statute neither burdens a [protected] group or a fundamental interest it is
subject to . . . rational basis [review]." The court then noted that the United
States Supreme Court has held that age is not a suspect classification and that
housing is not a fundamental right, and it therefore determined that rational basis
review applied and that the Ordinance would be upheld if it was rationally
related to a legitimate state interest. Noting that age-based restrictions have
4 The court did indirectly address this claim when it denied plaintiff's request for temporary restraints, holding that the facts underlying the alleged racial discrimination were too "controverted" to issue preliminary relief. Specifically, the court found that the Ordinance had a "non-facially discriminatory motive" and that plaintiff had produced no evidence of racial discrimination beyond the dates of the two holidays that happen to occur during the covered period. The court also addressed racial discrimination in the context of plaintiff's equal protection claim, discussed below. A-2683-23 7 been consistently upheld in the housing context—as well as in other contexts
like driver's licensure, alcohol consumption, and voting—the court concluded
that "it is entirely rational to enact age restrictions for hotels and motels using
prom season in response to the experience of the [Borough]."
The court also rejected plaintiff's constitutional claim of racial
discrimination, noting that (1) the Borough produced "ample" evidence that the
Ordinance was a response to prom season issues, (2) the rational basis inquiry
is limited to the public legislative record, and (3) that record was devoid of any
evidence of racial animus. Finally, the court concluded that the Ordinance did
not implicate any privacy or associational rights. The court's decision did not
address plaintiff's vagueness claim.
This appeal followed. After an initial oral argument on September 30,
2025, we invited the American Civil Liberties Union-New Jersey (the ACLU)
and the League of Municipalities (the League) to submit amicus briefs
addressing what level of judicial scrutiny applies to each of plaintiff's
constitutional arguments. On January 27, 2026, after receiving amicus briefs
and supplemental submissions from the parties, we held a second oral argument
with amici and the parties.
A-2683-23 8 On appeal, plaintiff argues it has standing to bring its claims; the
Ordinance is subject to and fails heightened scrutiny under both the Equal
Protection and Due Process Clauses; the Ordinance is unconstitutionally vague;
and the Ordinance violates the LAD's prohibition on age and race
discrimination.
The Borough and the League reply that the Ordinance is subject to and
survives rational basis review, and that the Ordinance is not unconstitutionally
vague. The Borough also argues that plaintiff lacks standing and fails to state
an LAD claim, as the LAD does not prohibit age discrimination by public
accommodations such as motels or hotels.
The ACLU contends that, under the New Jersey Constitution, equal
protection and substantive due process claims are analyzed under a "flexible
balancing test," rather than tiers of scrutiny, and that plaintiff has stated a claim
under this test. The ACLU also argues that plaintiff's complaint adequately
states claims of age and race discrimination claim under the LAD.
II.
We need only briefly address the threshold issue of standing. New Jersey
courts take a "generous view of standing." In re New Jersey State Cont. A71188,
422 N.J. Super. 275, 289 (App. Div. 2011). In general terms, standing requires
A-2683-23 9 that a party has "a sufficient stake and real adverseness with respect to the
subject matter of the litigation." In re Baby T., 160 N.J. 332, 340 (1999). We
are satisfied that plaintiff has standing to challenge the Ordinance because it
prevents plaintiff from renting rooms to individuals under the age of twenty-one
from April 15 to July 1, thereby limiting a source of revenue. See, e.g., United
Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J. Super. 1, 50-51
(App. Div. 2001) (holding that property owner had standing to assert violation
of due process rights of persons to whom they wanted to rent); Oasis Therapeutic
Life Centers, Inc. v. Wade, 457 N.J. Super. 218, 228-29 (App. Div. 2018)
(determining that the plaintiff, a nonprofit group home, had standing to assert
an LAD claim regarding discrimination against its residents because it suffered
"economic damage allegedly resulting from [the] defendants' alleged
discriminatory conduct").
III.
We next address plaintiff's substantive claims, beginning with its
contention that the trial court erred in dismissing its claims under the LAD. We
conclude that both its LAD claims were properly dismissed.
Because the trial court dismissed plaintiff's complaint for failure to state
a claim, our review is de novo. Baskin v. P.C. Richard & Son, LLC, 246 N.J.
A-2683-23 10 157, 171 (2021). On review, we must "search[] the complaint in depth and with
liberality to ascertain whether the fundament of a cause of action may be gleaned
even from an obscure statement of claim, opportunity being given to amend if
necessary." Printing Mart, 116 N.J. at 746 (quoting Di Cristofaro, 43 N.J. Super.
at 252). In doing so, we should "giv[e] the plaintiff the benefit of 'every
reasonable inference of fact.'" Baskin, 246 N.J. at 171 (quoting
Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237
N.J. 91, 107 (2019)). However, "a dismissal is mandated where the factual
allegations are palpably insufficient to support a claim upon which relief can be
granted." Palmisano v. Admin. Off. of Cts., 482 N.J. Super. 328, 334 (App. Div.
2025) (quoting Rieder v. N.J. Dep't of Transp., 221 N.J. Super. 547, 552 (App.
Div. 1987)). "Complaints cannot survive a motion to dismiss where the claims
are conclusory or vague and unsupported by particular overt acts." Id. at 335
(quoting Delbridge v. Off. of Pub. Defender, 238 N.J. Super. 288, 314 (Law Div.
1989)).
A.
The LAD makes it "unlawful" "[f]or any owner . . . manager . . . agent, or
employee of any place of public accommodation" to "discriminate against any
person in the furnishing" of any of the "accommodations, advantages, facilities,
A-2683-23 11 or privileges" of "any place of public accommodation" based on several
explicitly enumerated protected characteristics. C.V., 255 N.J. at 307 (quoting
N.J.S.A. 10:5-12(f)). Notably, however, N.J.S.A. 10:5-12(f)—the provision
governing discrimination in places of public accommodation—does not include
"age" as a protected category. Indeed, in C.V., our Supreme Court recently
affirmed that "the LAD does not prohibit age discrimination in places of public
accommodation." 255 N.J. at 320. Cf. DiProspero v. Penn, 183 N.J. 477, 495
(2005) ("The canon of statutory construction, expressio unius est exclusio
alterius—expression of one thing suggests the exclusion of another left
unmentioned—sheds some light on the interpretative analysis." (quoting
Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 112 (2004))).
Plaintiff, a motel, does not deny that it is a "place of public
accommodation" under the LAD. Instead, plaintiff and the ACLU argue that the
Ordinance violates a different provision of the LAD—N.J.S.A. 10:5-12(l)—
which broadly prohibits a "person" from refusing to "buy from, sell to, lease
from or to, license, contract with . . . or otherwise do business with any other
person," and does include "age" as a protected category.
We believe the apparent conflict between subsections (f) and (l) is
resolved by the well-established principle that "a more specific statutory
A-2683-23 12 provision usually controls over a more general one." State v. Gomes, 253 N.J.
6, 28 (2023). We acknowledge that the LAD is "remedial legislation that must
'be liberally construed.'" Savage v. Twp. of Neptune, 257 N.J. 204, 215-16
(2024) (quoting N.J.S.A. 10:5-3). However, if subsection (l) were read as
plaintiff and the ACLU suggest, subsection (f)'s notable omission of "age"
would be rendered meaningless with respect to any case of discrimination by
places of public accommodation that also involves a refusal to "contract" or "do
business." See MasTec Renewables Constr. Co., Inc. v. SunLight Gen. Mercer
Solar, LLC, 462 N.J. Super. 297, 318 (App. Div. 2020) ("A court must make
every effort to avoid rendering any part of a statute inoperative, superfluous or
meaningless." (citing Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212
N.J. 576, 587 (2013))). Here, we decline to apply subsection (l)'s broad
prohibition on discrimination in commercial activity when subsection (f)
specifically governs places of public accommodation like plaintiff. We
therefore affirm the trial court's dismissal of plaintiff's LAD age discrimination
claim.
B.
Turning to plaintiff's race and ethnicity discrimination claim, plaintiff's
contention is based on an assertion that the Ordinance prohibits rentals by adults
A-2683-23 13 under the age of twenty-one during the weekends commemorating the holiday
of Cinco de Mayo, which celebrates Mexican heritage, and the national holiday
of Juneteenth, which commemorates the end of slavery in the United States.
It can hardly be disputed that the LAD explicitly prohibits discrimination
based on "race," "national origin," and "ancestry" in places of public
accommodation. N.J.S.A. 10:5-12(f). When analyzing LAD claims, we follow
the "'procedural burden-shifting methodology' set forth in McDonnell Douglas
Corp. v. Green, [411 U.S. 792, 802-04] (1973)." Meade v. Twp. of Livingston,
249 N.J. 310, 328 (2021) (quoting Zive v. Stanley Roberts, Inc., 182 N.J. 436,
447 (2005)). See also S.G. v. New Jersey Dep't of Corr., 485 N.J. Super. 155,
168-69 (App. Div. 2026) (applying the McDonnell Douglas framework to an
LAD claim against a place of public accommodation). Under that burden-
shifting framework:
(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination; (2) the defendant must then show a legitimate nondiscriminatory reason for its decision; and (3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application.
[Meade, 249 N.J. at 328 (quoting Henry v. Dep't of Hum. Servs., 204 N.J. 320, 331 (2010)).]
A-2683-23 14 Plaintiff contends that by enacting the Ordinance, the Borough "has
engaged in intentional discrimination that also [has] a discriminatory effect on
African Americans and Latinos." However, this charge of intentional
discrimination is a bare conclusion unsupported by any specific factual
allegations of discriminatory intent. Furthermore, with respect to its claim of
discriminatory impact, we decline to entertain an LAD claim premised solely on
the fact that two culturally significant holidays happen to fall within the time
period the Borough has chosen based on a history of issues with nuisance and
disorderly behavior arising out of prom and graduation celebrations. 5 In other
words, the mere fact that these holidays fall between April 15 and June 30 is,
without more, "palpably insufficient" to support a prima facie case of
discrimination under the LAD, and dismissal is therefore required. Palmisano,
482 N.J. Super. at 334.
5 The ACLU points out that the Ordinance's restrictions begin earlier and end later than the majority of prom weekends. However, we do not read the LAD to require the Borough to precisely tailor the Ordinance to the exact dates of local proms or graduations, and we note that municipal ordinances "carry a presumption of validity." Newfield Fire Co. No. 1 v. Borough of Newfield, 439 N.J. Super. 202, 209 (App. Div. 2015) (quoting Hutton Park Gardens v. Town Council of W. Orange, 68 N.J. 543, 564 (1975)).
A-2683-23 15 IV.
We now turn to plaintiff's constitutional claims. We note that while the
trial court's oral decision briefly mentioned the New Jersey Constitution's
flexible balancing test, its analysis focused entirely on the federal constitutional
tiers of scrutiny, and it upheld the Ordinance under the rational basis test.
Under the Fourteenth Amendment's Equal Protection Clause, age is not a
suspect classification, and the Ordinance is therefore subject to rational basis
review, which requires only that "the age classification in question is rationally
related to a legitimate state interest." Kimel v. Fla. Bd. of Regents, 528 U.S. 62,
83 (2000). Under that standard, a reviewing court will uphold the classification
"unless the varying treatment of different groups or persons is so unrelated to
the achievement of any combination of legitimate purposes that we can only
conclude that the [government's] actions were irrational." Id. at 84; see also
ibid. (recognizing that states may "rel[y] on broad generalizations with respect
to age"). Here, as the trial court determined, the Ordinance survives rational
basis review because the Borough could rationally conclude that restricting hotel
rentals to eighteen-to-twenty-one-year-olds during the covered period would
reduce nuisance-like behavior and disorderly conduct. The Borough's statement
A-2683-23 16 of legislative findings accompanying the Ordinance suffices to establish this
conclusion.
The Ordinance also survives rational basis review under the Fourteenth
Amendment's Due Process Clause. Plaintiff argues that the Ordinance is subject
to heightened scrutiny because it infringes on the fundamental rights to privacy
and to "associate socially," but neither argument finds support in federal
constitutional case law. The Due Process Clause "provides heightened
protection against government interference with certain fundamental rights and
liberty interests." Dep't of State v. Munoz, 602 U.S. 899, 910 (2024) (quoting
Washington v. Glucksberg, 521 U.S. 702, 720 (1997)). However, before
recognizing a right or interest as fundamental, courts insist on a "careful
description" of the right or interest and will only protect "those fundamental
rights and liberties which are, objectively, deeply rooted in this Nation's history
and tradition." Ibid. (quoting Glucksberg, 521 U.S. at 720-21).
Here, applying the "careful description" requirement, the fundamental
right asserted in this case is not a general right to privacy or association, but the
right to rent and occupy a hotel room. However, plaintiff points to no case
supporting recognition of such a right under the Federal Constitution, and we
decline to find that right here, especially given that courts have upheld analogous
A-2683-23 17 restrictions on the occupancy of dwellings—a more significant liberty
infringement than a restriction on hotel and motel rentals. See Vill. of Belle
Terre v. Boraas, 416 U.S. 1, 2-3, 8-9 (1974) (upholding under rational basis
review a zoning ordinance that restricted land use to single-family dwellings and
limited the number of unrelated people who could live together to two);
HomeRoom, Inc. v. Shawnee, Kansas, City of, 691 F. Supp. 3d 1316, 1318, 1323
(D. Kan. 2023) (upholding, under Belle Terre and rational basis review, an
ordinance prohibiting four or more unrelated persons over eighteen from living
in a dwelling unit), aff'd sub nom. Homeroom, Inc. v. City of Shawnee, No. 23-
3168, 2026 WL 925733 (10th Cir. Apr. 6, 2026). Compare Moore v. City of E.
Cleveland, 431 U.S. 494, 498 (1977) (plurality) (invalidating ordinance because
it "selects certain categories of relatives who may live together and declares that
others may not," which "sets this case apart from Belle Terre").
In its brief, plaintiff relies mainly on New Jersey cases that struck down
ordinances or zoning regulations based on a non-tiered method of substantive
due process review under the New Jersey Constitution, 6 which we discuss in the
6 See, e.g., Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251-52 (1971) (holding that a zoning regulation "must not be unreasonable, arbitrary or capricious;" its "means . . . must have a real and substantial relation to the object sought to be attained;" and it must "not exceed the public need or substantially
A-2683-23 18 following section. For purposes of federal constitutional analysis, however,
these cases do not establish that the Ordinance is subject to heightened scrutiny.
Additionally, in support of its privacy argument, plaintiff cites state and federal
criminal cases concerning the police's ability to search a person's hotel room
under the Fourth Amendment. See Georgia v. Randolph, 547 U.S. 103 (2006);
State v. Hathaway, 222 N.J. 453 (2015). However, while these cases establish
that a guest has a reasonable expectation of privacy in their hotel room for
Fourth Amendment purposes—that is, a right against unreasonable entry and
searches by police—they do not have any bearing on the constitutionality of an
Ordinance setting rental and occupancy limitations for hotels and motels.
In sum, plaintiff cannot establish that a heightened tier of scrutiny under
the Federal Constitution applies. Because the Ordinance survives rational basis
review, plaintiff's federal substantive due process claim was properly dismissed.
affect" innocent uses of a property—and omitting any mention of tiers of scrutiny); State v. Baker, 81 N.J. 99, 105, 112 (1979) (relying on Kirsch and expressly diverging from the federal constitution); Belmar, 343 N.J. Super. at 38 (invalidating, on constitutional grounds, a provision restricting the number of persons who could be present in a summer rental after certain hours, because it "impact[ed] . . . a substantial amount of protected behavior, more than [was] necessary to abate the nuisances"); and Tirpak v. Borough of Point Pleasant Beach Board of Adjustment, 457 N.J. Super. 441, 445 (App. Div. 2019) (relying on Kirsch and Baker). A-2683-23 19 B.
Turning to plaintiff's state constitutional claims, Article I, Paragraph 1 of
the New Jersey Constitution provides: "All persons are by nature free and
independent, and have certain natural and unalienable rights, among which are
those of enjoying and defending life and liberty, of acquiring, possessing, and
protecting property, and of pursuing and obtaining safety and happiness." N.J.
Const. art. 1, ¶ 1. "Although our State Constitution nowhere expressly states
that every person shall be entitled to substantive due process of law, the
expansive language of Article I, Paragraph 1 embraces that fundamental
guarantee." State in Int. of C.K., 233 N.J. 44, 73 (2018). It is also "'well settled
law that the expansive language of that provision' is the source of the state
constitutional guarantee" of equal protection. UAW v. New Jersey Governor
Philip Murphy, 483 N.J. Super. 414, 441 (App. Div. 2026) (quoting Sojourner
A. v. N.J. Dep't of Human Servs., 177 N.J. 318, 332 (2003)), stay granted
pending consideration of appeal, 263 N.J. 325 (2026).
In evaluating claims under Article I, Paragraph 1—whether styled as equal
protection or substantive due process—we do not apply the federal tiers of
scrutiny, but rather a more flexible balancing test. See Greenberg v.
Kimmelman, 99 N.J. 552, 567 (1985) ("The analysis of fundamental rights under
A-2683-23 20 the New Jersey Constitution differs from analysis of those rights under the
United States Constitution."); UAW, 483 N.J. Super. at 446 ("'Under [the New
Jersey Constitution], a right need not be labeled "fundamental" or a
classification deemed "suspect" to trigger searching judicial review.'" (quoting
Robert F. Williams & Ronald K. Chen, The New Jersey State Constitution 58
(3d ed. 2023))).
We recently reiterated this state constitutional balancing test in UAW,
noting that it "considers three aspects: (1) 'the nature of the affected right'; (2)
'the extent to which the governmental restriction intrudes upon it'; and (3) 'the
public need for the restriction.'" 483 N.J. Super. at 443-44 (quoting Greenberg,
99 N.J. at 567). "[I]n many instances," the New Jersey balancing test "entails
looking at the same facts and interests and produces the same outcomes" as the
federal tiers of scrutiny, id. at 446, as "the factors to be balanced are 'implicit, if
not explicit, in federal analysis of the due process and equal protection clauses,'"
Belmar, 343 N.J. Super. at 17-18 (citing Greenberg, 99 N.J. at 567). We also
reiterate that municipal ordinances are generally presumed to be valid.
Newfield, 439 N.J. Super. at 209. However, the state constitutional balancing
test "can potentially lead to an invalidation of a statutory classification even
where no fundamental right is infringed and the State contends the classification
A-2683-23 21 rests on a 'rational basis.'" UAW, 483 N.J. Super. at 446. See also id. at 443-
46 (summarizing our Supreme Court's application of the balancing test to the
facts of Greenberg and Lewis v. Harris, 188 N.J. 415 (2006)).
We conclude that under the liberal pleading standards applicable to a
motion to dismiss, plaintiff has stated an equal protection claim under the State
Constitution. We emphasize that when reviewing a complaint on a motion to
dismiss, we must "giv[e] the plaintiff the benefit of 'every reasonable inference
of fact.'" Baskin, 246 N.J. at 171 (quoting Dimitrakopoulus, 237 N.J. at 107).
Because the state constitutional balancing test by its nature requires fact-specific
analysis of, for instance, the degree to which the Ordinance burdens the right of
young adults to rent a motel room and the extent to which that restriction
actually advances the Borough's goal of reducing nuisance-like behaviors, we
are constrained to reverse the trial court's dismissal of the complaint at this early
stage of the litigation.
More specifically, beginning with the first two factors of the state
balancing test, during the covered period, the Ordinance infringes completely
on the right of eighteen-to-twenty-one-year-old legal adults to rent a hotel or
motel room in the Borough. Critically, moreover, under the third factor, while
the Borough has put forward a plausible justification for the restriction, the
A-2683-23 22 degree to which that restriction is necessary remains an open and fact -sensitive
question. We decline to conclude—as a matter of law and without any fact-
finding by the trial court—that the Borough's need to control nuisance-like,
rowdy behavior during prom/graduation season outweighs the Ordinance's
discriminatory impact on eighteen-to-twenty-one-year-olds.
We reiterate that this case comes to us on a motion to dismiss, and that we
therefore may only dismiss the complaint if its factual allegations are "palpably
insufficient" to support a claim for relief. Palmisano, 482 N.J. Super. at 334.
Without evidence in the record regarding, for instance, (1) whether the
Ordinance is in fact an effective mechanism to control rowdy behavior or (2) the
degree to which it is overinclusive (preventing innocent young adults from
renting a hotel room) or underinclusive (failing to prevent others from disrupting
the Borough with nuisance-like behaviors), we do not believe that plaintiff's
equal protection claim fails as a matter of law, and therefore reverse the court's
dismissal of that claim. 7
7 In its opposition to plaintiff's motion for temporary restraints, the Borough attached as exhibits several newspaper articles and police reports describing instances of disorderly conduct that allegedly justified the Ordinance. However, because our review of a motion to dismiss for failure to state a claim "is limited to examining the legal sufficiency of the facts alleged on the face of the
A-2683-23 23 For similar reasons, we also reverse and remand the court's dismissal of
plaintiff's state substantive due process claim. In addition to discriminating
based on age, the Ordinance infringes on the rights of individuals to rent and
occupy a hotel/motel room with persons of their choosing. For instance, the
Ordinance prevents eighteen-to-twenty-one-year-old adults from sharing a hotel
room with their peers, and prevents an adult over twenty-one from sharing a
room with anyone under twenty-one who is not their "immediate family
member." As with the equal protection claim, these are constitutionally
significant burdens on the rights of would-be motel guests. Given the lack of a
factual record at this stage, we cannot conclude as a matter of law that they are
outweighed by the Borough's asserted need for the restriction.
We note further in this regard that New Jersey courts have repeatedly
disapproved of shore communities' attempts to restrict or dictate who may
occupy or visit summer rental housing. In Kirsch, our Supreme Court struck
down ordinances that sought to restrict seasonal seashore rentals to "families" 8
complaint," Printing Mart, 116 N.J. at 746, we decline to consider these exhibits at this stage. 8 More specifically, one of the ordinances in Kirsch defined "family" as a group "related by blood or marriage" or otherwise "of a permanent and distinct domestic character." Id. at 247. A-2683-23 24 to curb summertime rentals by allegedly disorderly groups of unrelated young
adults. 59 N.J. at 245-52. The Court underscored that the ordinances "preclude
so many harmless dwelling uses . . . that they must be held to be so sweepingly
excessive, and therefore legally unreasonable, that they must fall in their
entirety." Id. at 251-52. The Court further noted that "[o]rdinarily obnoxious
personal behavior can best be dealt with . . . by vigorous and persistent
enforcement of general police power ordinances and criminal statutes." Id. at
253.
Kirsch's reasoning has been adopted in a number of cases involving
occupancy restrictions on shore rentals. See, e.g., Belmar, 343 N.J. Super. at 38
(invalidating a restriction on the number of persons who could be present in a
summer rental during nighttime hours because the provision "impacts . . . a
substantial amount of protected behavior, more than is necessary to abate the
[relevant] nuisances"); Borough of Glassboro v. Vallorosi, 117 N.J. 421, 426
(1990) ("The courts of this state have consistently invalidated zoning ordinances
intended 'to cure or prevent . . . anti-social conduct in dwelling situations.'"
(quoting Kirsch, 59 N.J. at 253-54)). While this case concerns hotel rooms, not
long-term rentals or a zoning regulation, we believe it nonetheless implicates
the core principle recognized in Kirsch, Belmar, and Vallorosi: that a
A-2683-23 25 municipality should not overburden innocent persons based on the potential
disorderly or nuisance-like behavior of others. While we offer no views on
whether that principle ultimately carries the day here, we remand for the trial
court to apply the state constitutional balancing test in light of this case law.
On remand, the trial court should allow reasonable discovery—in its
discretion—into the effect of the Ordinance on the innocent conduct of would-
be motel customers and the public need for the restriction with respect to
preventing rowdy or nuisance-like behavior. We emphasize that the court
retains discretion over the scope of the discovery process, see UAW, 483 N.J.
Super. at 426, and we of course offer no opinion on the appropriate discovery or
outcome of the remand. Moreover, as in UAW, our holding does not "signify
that trial judges should routinely allow discovery and consider presiding over
evidentiary hearings every time a state equal protection argument is asserted in
a pleading or a brief." Id. at 427. Rather, we hold that on the particular facts of
this case, dismissal of plaintiff's state constitutional claims was improper .
Finally, we address plaintiff's claim that the Ordinance is impermissibly
vague. We begin by once again noting that municipal ordinances are
presumptively valid. Newfield, 439 N.J. Super. at 209. Turning to substantive
A-2683-23 26 vagueness principles, as long as ordinary people are "apprised with a reasonable
degree of certainty of that which is proscribed," a statute is not
unconstitutionally vague. Ibid. "Even where a statute's constitutionality is
'fairly debatable, courts will uphold' the law." State v. Lenihan, 219 N.J. 251,
266 (2014) (quoting Newark Superior Officers Ass'n v. City of Newark, 98 N.J.
212, 227 (1985)). A statute is void for vagueness when it either "forbids or
requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application." In re
Commitment of J.M.B., 197 N.J. 563, 599 (2009) (quoting Karins v. Atlantic
City, 152 N.J. 532, 541 (1998)). A vague statute violates due process when there
is a lack of warning or notice that certain actions violate the statute. Ibid.
Unconstitutional "[v]agueness leaves people guessing about their obligations."
State v. Carter, 247 N.J. 488, 518 (2021).
Here, because plaintiff challenged the Ordinance before it went into
effect, its challenge is necessarily facial rather than as applied. A law is facially
vague "if it is vague in all applications." State v. Dalal, 467 N.J. Super. 261,
281 (App. Div. 2021). "Accordingly, a facial due process challenge is
particularly difficult to present and establish." Ibid.
A-2683-23 27 Plaintiff and the ACLU argue that the Ordinance is impermissibly vague
because it fails to clarify who counts as an "immediate family member" or
"guardian," and because it only states that a hotel or motel is "responsible for
compliance" with the age restriction, without being more specific. While one
can conceive of hypothetical scenarios in which it is unclear whether these terms
apply, we decline to invalidate the Ordinance based on such pre-enforcement
speculation, as there are ample situations in which the Ordinance clearly would
apply without ambiguity: to give one example, a motel is plainly prohibited
from knowingly renting a room to a group of eighteen-year-old high school
graduates. See Town Tobacconist v. Kimmelman, 94 N.J. 85, 99 (1983) ("[A]
pre-enforcement attack on vagueness grounds generally fails if the Act is clear
in one of its applications."). As a result, we decline to reverse the court's
dismissal of the complaint on this basis. We note that nothing in our opinion
precludes plaintiff from bringing an as-applied vagueness challenge in the
future.
To the extent we have not specifically addressed them, any remaining
arguments made by plaintiff lack sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E).
A-2683-23 28 Affirmed in part, reversed and remanded in part. We do not retain
jurisdiction.
A-2683-23 29