Cona v. Twp. of Wash.

192 A.3d 1052, 456 N.J. Super. 197
CourtNew Jersey Superior Court Appellate Division
DecidedAugust 29, 2018
DocketDOCKET NOS. A-5067-15T3; A-5615-15T3; A-0443-16T3
StatusPublished
Cited by14 cases

This text of 192 A.3d 1052 (Cona v. Twp. of Wash.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cona v. Twp. of Wash., 192 A.3d 1052, 456 N.J. Super. 197 (N.J. Ct. App. 2018).

Opinion

ROTHSTADT, J.A.D.

*201*1054In these matters, which we considered back-to-back and have consolidated for purposes of writing one opinion, plaintiff landlords rely upon our opinion in Timber Glen Phase III, LLC v. Township of Hamilton, 441 N.J. Super. 514, 120 A.3d 226 (App. Div. 2015) in their appeals from orders1 entered in the Law Division dismissing their complaints that alleged defendant municipalities' ordinances that required plaintiffs to pay certain license fees are ultra vires. In Timber Glen, the ordinance we reviewed required landlords to obtain a license before any residential rental unit could be occupied *202and pay an annual license fee of $100 per unit.2 Id. at 519, 120 A.3d 226. The municipality contended it had authority under the Licensing Act, N.J.S.A. 40:52-1, to require such licenses and that its authority was compatible with its regulatory power under N.J.S.A. 40:48-2.12m. Id. at 523, 120 A.3d 226. The stand-alone license fee it charged was in addition to fees it required for mandatory "annual habitability inspections ...." Id. at 519, 120 A.3d 226.

We rejected the municipality's position in Timber Glen, noting, "the powers to regulate and to license, although related, are discrete" and that the power to regulate did not include the power to require a license and payment of a fee. Id. at 526, 120 A.3d 226 (citation omitted). We concluded that a 1998 amendment to the Licensing Act prohibited the licensing of rental units rented for 175 days or more and that any ordinance attempting to impose such a requirement was "invalid as ultra vires and unenforceable." Id. at 532, 120 A.3d 226. However, we noted that "[o]ur opinion [was] confined to the authority to license and [did] not address [a municipality's] regulatory or inspection authority granted by other statutes designed to assure rental premises remain safe, building and fire code compliant and structurally sound." Id. at 532 n.4, 120 A.3d 226 (citation omitted).

The issue raised in the present appeals is whether fees imposed by defendant municipalities are for revenue generation as prohibited under Timber Glen, or if they are reasonably related to the municipalities' exercise of their regulatory powers as authorized by statute. The plaintiffs' complaints alleged the municipalities violated the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, and that the ordinances requiring the payment of license *203fees were ultra vires under Timber Glen, entitling them to damages and a declaratory judgment awarding them injunctive relief. The municipalities responded by filing motions to dismiss under Rule 4:6-2(e). The trial court judges who considered the matters found that the challenged ordinances were distinguishable from the ordinance invalidated in Timber Glen, as the fees were permissible under a municipality's *1055regulatory powers in order to defray costs for inspections or registration of rental units. For the reasons that follow, we affirm.

The challenges raised by each plaintiff are summarized as follows. O'Hara brought her challenges against defendants City of Woodbury and the Borough of Glassboro where she maintained properties for rent. The Woodbury ordinance3 requires landlords to secure a license that "attest[ed] that the rental unit had been properly registered" under the ordinance. Before a unit can be registered and occupied, the ordinance requires an inspection "for the purpose of determining Woodbury City Code compliance and compliance with [the ordinance's] Housing Standards ...." Annual registration of rental units and payment of a $100 "license fee" have to be completed before the city will issue a license to permit their rental.

The Glassboro ordinance4 also requires annual registration and the payment of a fee before it will issue a license permitting the rental of a unit. In addition, if there is a change in occupancy, a new registration and an additional fee have to be paid. A license will not be issued, however, unless the unit passes an inspection to insure there are no "safety violations" and that the units meet the ordinance's "performance standards ...." The $160 "annual registration fee [that the ordinance requires] include[s] all inspections and one re[-]inspection at no additional fee."

*204Brody, a landlord who maintains rental properties in defendants Borough of Westville, Borough of National Park and the Township of Deptford, challenged each of those municipality's ordinances. The Deptford ordinance5 contains a registration and licensing requirement, but does not require re-registration upon a change in occupancy, although it requires re-inspection. Inspection is required "to determine the condition of rental facilities, rental units and rooming/boarding houses in order ... to safeguard the health, safety, welfare of the occupants ... and of the general public." The ordinance further provides that a fee has to be paid upon registration before a license will be issued. It also provides for a re-inspection fee upon a change in occupancy. No separate licensing fee is imposed.

Westville's and National Park's ordinances also require annual registration and the payment of a fee before licenses will be issued to landlords. Westville's ordinance6 imposes an "annual registration fee and first inspection fee" of fifty or sixty dollars per rental unit depending on the number of rental units on a property. It also has a re-inspection fee and late fee that it charged for untimely payments. The ordinance provides that "inspection shall be for the purpose of determining ... Land Use and Development compliance and, to the extent applicable, to determine if the property complies with the Property Maintenance Code, Uniform Construction Code, Housing Code and/or Building Code and/or Uniform Fire Safety Act." Westville's ordinance does not designate any of its fees as license fees.

Similarly, National Park's ordinance

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Cite This Page — Counsel Stack

Bluebook (online)
192 A.3d 1052, 456 N.J. Super. 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cona-v-twp-of-wash-njsuperctappdiv-2018.