On March 11, 1969, the Hasbrouck Heights Borough Council adopted Ordinance No. 962 which purports to regulate and license, among others, multiple family dwellings, including garden apartments, in the community. Plaintiffs in this action are each the owners of such apartments in the borough and, obviously, are directly affected by the ordinance.
Plaintiffs and defendant borough have been repeated adversaries in litigation over excessive property assessments, Borough of Hasbrouck Heights v. Div. of Tax Appeals , 41 N.J. 492 (1964), and a previous ordinance which also unsuccessfully attempted to regulate and license apartment houses. Boulevard Apartments, Inc. v. Hasbrouck Heights , 86 N.J. Super. 189 (Law. Div. 1965), affirmed 90 N.J. Super. 242 (App. Div. 1966). The latter decision held that a $50. license fee, fixed under N.J.S.A. 40:48-2, for apartment complexes was excessive, not being limited to the actual cost of regulation.
The birth of the present ordinance was induced by N.J.S.A. 40:52-1, amended in 1968, which gave a municipality
the power, by ordinance, to license and regulate "motels, furnished and unfurnished rented housing or living units * * * and the occupancy thereof." It is admitted and appears beyond doubt that the plaintiffs' apartment houses come within the purview of this amendment.
Plaintiffs made a two-pronged attack on this ordinance claiming that the State has pre-empted the field of multiple dwelling licensing and regulation by virtue of N.J.S.A. 55:13A-1 et seq. , the Hotel & Multiple Dwelling Health & Safety Law of 1967, and, alternatively, that the $10 annual fee imposed upon each dwelling unit by the ordinance is excessive. I will dispose of these contentions in reverse order.
Section 7 of the ordinance reads:
There shall be charged and collected for the granting of the license * * *, which license fee is imposed for, and shall be a part of, the general revenues of the Borough, a license fee per annum as follows:
Dwelling units $10.00 per unit for each unit, more than two, in any licensed premises * * *
There is a presumption of the reasonableness of a license fee imposed by an ordinance and the burden of proving otherwise rests upon the attacker. Garden State Racing Assn. v. Cherry Hill Tp. , 42 N.J. 454 (1964); Monmouth Jct. Mob. Home Pk. v. So. Bruns. Tp. , 107 N.J. Super. 18 (App. Div. 1969), cert. den. 55 N.J. 30 (1969). The amount of such fee rests in the sound discretion of the governing body and a court will not interfere unless the fee is prohibitory and unreasonable. Monmouth Jct. Mob. Home Pk. v. So. Bruns. Tp., supra. A license fee imposed by ordinance adopted pursuant to N.J.S.A. 40:52-1 may be geared not only to the cost of ...