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Apartment House Council v. Mayor and Council of Borough of Ridgefield

Decided: February 27, 1973.

APARTMENT HOUSE COUNCIL, AN AFFILIATE OF THE NEW JERSEY BUILDERS ASSOC., A CORPORATION OF THE STATE OF NEW JERSEY, AND ROBERT RODRIGUEZ, PLAINTIFFS,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF RIDGEFIELD, THE BOROUGH OF RIDGEFIELD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THE DEPARTMENT OF HEALTH OF THE BOROUGH OF RIDGEFIELD, AND THE RIDGEFIELD MULTIPLE DWELLING EMERGENCY COMMISSION, DEFENDANTS



Pashman, A.j.s.c.

Pashman

Plaintiff Apartment House Council is a New Jersey corporation consisting of builders who own and operate apartments, as does plaintiff Rodriguez in the defendant Borough of Ridgefield.

Plaintiffs challenge the constitutionality of a 1972 ordinance of said borough which requires owners of multiple dwellings to post security with a Multiple Dwelling Emergency Commission (hereinafter Commission) established for this purpose. The Commission is empowered to expend monies from the fund thus collected for purposes of repairs in apartments where the landlord, after 24 hours' notice, has failed to correct defective "emergency" conditions.

Neither party alleges that there exists any genuine dispute as to the material facts. Accordingly, the matter is ripe for summary judgment under R. 4:46 and R. 4:67.

The ordinance provides for Commission action, after proper notice to the landlord, when "emergency conditions" exist, as determined by that Commission, including:

(1) Lack of adequate ventilation or light;

(2) Lack of adequate and properly functioning sanitary facilities;

(3) Lack of adequate and healthful water supply;

(4) Structural, mechanical or electrical defects which increase the hazards of fire, accident or other calamity;

(5) Lack of adequate heat during specified months and specified times of the day.

The ordinance is challenged on the following grounds:

(1) There is no statutory authority permitting the defendant borough to adopt the ordinance and that there is no need for such an ordinance to protect the public health, safety and welfare of the community;

(2) The ordinance fails to provide for a hearing to determine the existence of an emergency and its cause;

(3) The Commission alone is the enforcing body with no right of appeal from its decision, and

(4) The ordinance places an unreasonable burden on landlords in order to comply with its requirements.

I. STATUTORY AUTHORITY

The challenged ordinance states that it is authorized pursuant to the general grant of power to municipalities set forth in N.J.S.A. 40:48-2, which provides as follows:

Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary

to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law. [Emphasis added]

Plaintiffs contend that the ordinance can be valid only if there was a need for it in order to protect the general public welfare. Such a reading of N.J.S.A. 40:48-2 ignores the last phrase as emphasized above. The municipality may act whenever necessary to carry into effect the powers and duties conferred by state law.

We have in the present case an example of a municipality which has utilized this legislative authorization precisely as intended. As plaintiffs have acknowledged, N.J.S.A. 2A:42-74 et seq. is a statutory authorization to municipalities to protect inhabitants of multiple dwellings which have deteriorated through landlord neglect to a point at which local officials may deem the dwellings substandard. These sections are designed as a means to allow municipalities to ensure that multiple dwellings adhere to minimum standards of safety and sanitation. This "minimum standards" legislation was the starting point for the right of municipalities to enact ordinances aimed at shoring up substandard and otherwise defective housing. The ordinance in question should be considered on the same level as any ordinance enacted pursuant to this "minimum standards" legislation. It is a municipal expression of compliance with the Legislature's desire to allow such local control over housing problems which are essentially local in concern and thus should be local in solution. See various observations in Inganamort v. Fort Lee , 120 N.J. Super. 286 (1972).

It should be noted parenthetically at this point that there is no issue in this case of preemption by the State Legislature of the field of substandard housing. The Supreme Court of New Jersey decided the issue of preemption in Summer v. Teaneck , 53 N.J. 548 (1969). Chief Justice Weintraub articulated the rule to be as follows:

It is not enough that the Legislature has legislated upon the subject, for the question is whether the Legislature intended its action

to preclude the exercise of the delegated police power. * * * The ultimate question is whether * * * it can be said with confidence that the Legislature intended to immobilize the municipalities from dealing with local aspects otherwise within their power to act. [at 554-555]

Such is clearly not the case in the matter before us. There is here a clear legislative intent that the local police power shall not be impaired by any provision of the "minimum standards" legislation. N.J.S.A. 2A:42-84 states as follows:

Nothing in this act shall be construed to abrogate or impair the powers of the courts or of any department of any municipality to enforce any provisions of its charter or its ordinances or regulations, nor to prevent or punish violations thereof; and the powers conferred by this act shall ...


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