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Dome Realty Inc. v. City of Paterson

Decided: June 8, 1977.

DOME REALTY, INC., ET AL., PLAINTIFFS-RESPONDENTS,
v.
CITY OF PATERSON ET AL., DEFENDANTS-APPELLANTS



Carton, Kole and Larner. The opinion of the court was delivered by Larner, J.A.D.

Larner

This appeal involves the constitutionality of a provision of the rent control ordinance of the City of Paterson which establishes a condition precedent to the right of a landlord to recover from tenants the amount of an increase in real estate taxes through a tax surcharge. The ordinance generally permits a landlord to pass on to tenants the amount of any annual increase in taxes. However the clause in question provides (§ 13B):

No landlord may seek a tax surcharge from a tenant nor may the Board or Administrator approve a request for a surcharge if said landlord is in arrears of taxes due and payable to the City.

Plaintiffs own and operate multiple apartment dwellings in the City of Paterson which are subject to the municipal rent control ordinance. They filed a complaint attacking several provisions of the ordinance, and after the issuance of an order to show cause the judge granted summary judgment invalidating §§ 24 and 13B of the ordinance and enjoining the enforcement thereof, and directing the city to allow a credit to plaintiffs for tax reductions ordered by the Division of Tax Appeals. The city's appeal is limited to that portion of the judgment relating to § 13B which requires that all taxes be paid as a precondition to the right to recover a tax surcharge from the affected tenants.

As a threshold issue not raised in the pleadings, the city asserts that there is no justiciable controversy because plaintiffs have not suffered injury. It notes that since there has been no tax increase in the City of Paterson, the ordinance provision has not been activated so as to affect plaintiffs

adversely and that the judgment below is but an advisory opinion. See Wagner v. Ligham , 37 N.J. Super. 430 (App. Div. 1955).

Although a court should not engage in rendering advisory opinions on abstract issues, it should not avoid its responsibility to determine the validity of legislation which may significantly affect plaintiffs and others similarly situated. See New Jersey Turnpike Auth. v. Parsons , 3 N.J. 235, 240 (1949). This is particularly true where the issue is purely that of the facial validity of the local legislation, is not dependent upon an exploration of underlying facts, and relates to probable prospective injury to the party litigants.

The comprehensive opinion of Justice Jacobs in Crescent Park Tenants Ass'n v. Realty Eq. Corp. of N.Y. , 58 N.J. 98 (1971), presents the liberal approach of the New Jersey courts to standing and the requirement of a justiciable controversy, contrasting the New Jersey Constitution (Art. VI, § 1) with the Federal Constitution (Art. III, § 2) which limits jurisdiction to actual cases and controversies. Justice Jacobs stated:

Without ever becoming enmeshed in the federal complexities and technicalities, we have appropriately confined litigation to those situations where the litigant's concern with the subject matter evidenced a sufficient stake and real adverseness. In the overall we have given due weight to the interests of individual justice, along with the public interest, always bearing in mind that throughout our law we have been sweepingly rejecting procedural frustrations in favor of "just and expeditious determinations on the ultimate merits." [at 107-108]

See also, Walker, Inc. v. Stanhope , 23 N.J. 657 (1957); Koons v. Atlantic City , 134 N.J.L. 329, 338 (Sup. Ct. 1946), aff'd 135 N.J.L. 204 (E. & A. 1947).

It is manifest that plaintiffs herein are not mere strangers or interlopers in this litigation. By virtue of their ownership of properties which will be affected by the ordinance ...


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