Skip to main content



State of New Jersey v. Attavane

A-2139-08T4 (N.J. Super. App. Div. 2009) (Unpublished)

BOARDING HOUSES; FAMILIES — For a municipality to successfully charge a property owner with unlawfully operating a rooming or boarding house, it must prove the owner’s guilt beyond a reasonable doubt and that includes disproving that the occupants of the property were not conducting a permitted “family style of living.”

After receiving an anonymous complaint alleging that “different people [were] coming in and out” of a homeowner’s property, a municipal housing inspector visited the premises. The homeowner claimed that these people were staying with her “to help her pay the rent.” The inspector then sent a letter notifying the homeowner that she was in violation of a zoning ordinance prohibiting boarding houses. A summons was then issued. When the inspector returned to the house, he observed there were locks on some of the doors and the rooms appeared to have been vacated. One of the former residents was in the process of moving out. The inspector believed the homeowner was now in compliance with the ordinance. Nevertheless, based upon his observations, the initial complaint, and what the homeowner had previously told him, he issued a summons alleging that the woman had been running a boarding house. The homeowner challenged the charges. Specifically, she claimed there was no evidence she was taking any rent or that she was operating a rooming or boarding house as defined by the ordinance.

The municipal court found the inspector to be credible and adopted his testimony. On that basis, he found that the homeowner had violated the ordinance. While acknowledging that most of the evidence was circumstantial, the court concluded, based on the homeowner’s admission, the locks, and the appearance of the rooms in the premises, that the State had proven beyond a reasonable doubt that the woman had been operating a boarding house. The homeowner appealed.

The lower court upheld the municipal court’s ruling and found the homeowner to be in violation of the ordinance. The lower court admitted “there was not an over abundance of evidence,” but found the municipal judge’s “findings were sound.” The homeowner appealed.

The Appellate Division reversed the conviction and remanded the matter to the lower court for entry of a judgment of acquittal. First, to the extent the lower court failed to independently assess the evidence and determine whether the homeowner was guilty, it ruled that the lower court erred. But, the Court stated the error was not important to its decision because the evidence was insufficient to prove the homeowner’s guilt beyond a reasonable doubt. It agreed with the homeowner that the two facts relied on by the lower court, the homeowner’s acceptance “of money to help pay the mortgage” and “locks” on some of the doors, were insufficient to prove guilt beyond reasonable doubt. Since municipal court proceedings to prosecute violations of ordinances are essentially criminal in nature, the Court held that a municipality was required to prove all of the elements of the violation beyond a reasonable doubt. It found it was unclear how many people were living in the home when the inspections were made. In addition, the Court said the record was silent as to the relationship between the homeowner and whoever was living in the home. There was no proof that the occupants were conducting a “family style of living” which would have been permitted. Also, the Court found there was no proof as to whether household responsibilities were apportioned among the residents or how daily activities were performed. It believed that “the mere fact that a reasonable inference could be drawn that [the homeowner] did not live alone is insufficient to prove beyond a reasonable doubt that she was violating the ordinance.” Finally, it attached no significance to the homeowner’s admission that whoever was staying with her was “helping her pay the bills.” It found that this did not transform the use into a profit-making enterprise, disqualifying the arrangement under the ordinance’s definition of “family” as a “single nonprofit housekeeping unit.” In this regard, the Court referred to a prior holding where a group of unrelated college students who rented premises from one of their parents, and, among other things, paid expenses from a common fund, nonetheless met the ordinance’s definition of a family as “a single housekeeping unit.”


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com