Feller, J.s.c. (retired and temporarily assigned on recall).
This is an action in lieu of prerogative writs. The facts are not in dispute and the matter was heard on plaintiff's motion and defendant's cross-motion for summary judgment.
The question presented is whether a municipality has the power to adopt an ordinance requiring the owner of an apartment complex to furnish uniformed security guard services during designated hours.
Plaintiff Sunrise Village Associates is the owner of multifamily residential property which has in excess of 250 rental apartment units. Defendant Borough of Roselle Park is the municipal corporation wherein the apartment complex is located.
The ordinance in question requires the owner of any apartment complex within the borough, consisting of 250 or more units, to furnish uniformed security guard services upon its premises from the hours of 8 p.m. through 3 a.m., seven days a week. Each uniformed guard is required to "make a periodic patrol and inspection of the premises, and shall undertake all actions necessary to assure the personal safety, privacy and protection of property of the residents of each apartment complex and their guests." Failure to comply with the ordinance would result in the imposition of a $100 fine upon the apartment complex owner, with separate fines being levied for each day a violation exists.
According to the affidavit of Borough Clerk John Keenan, a petition was filed, signed by the residents of Sunrise Village and citizens owning property adjacent thereto, setting forth their concerns about the nature and extent of the complaints emanating from the apartment complex.
Also, according to the affidavit of Councilman Dennis Estis, the ordinance became necessary due to an overwhelming number of complaints which required police response, particularly at plaintiff's complex, which is a large multi-building garden apartment with common hallways and no substantial security presently existing.
Plaintiff alleges that the ordinance violates current state law in that the duty to provide police or uniformed security guard protection is the duty of government and not the landlord. It is further alleged that the area of a landlord's security obligation to a tenant is preempted by the Legislature; that the ordinance requires plaintiff to maintain its own private police force, which is an improper delegation of power, and that the ordinance violates the Equal Protection Clause. Finally, an improper abrogation of plaintiff's contractual right is argued.
Plaintiff puts heavy reliance on Goldberg v. Newark Housing Auth. , 38 N.J. 578 (1962), for the proposition that the ordinance is invalid in that the government must provide police protection. However, Goldberg held that in a civil suit alleging negligence the landlord had no duty to provide police protection.
The court in Goldberg did not say that local governments were prevented from passing ordinances creating a landlord's duty to provide security, nor did the court say that the landlord was prevented from providing such uniformed security, as this was the province of local government. In fact, the court stated that the owner of residential property could "furnish" police protection only if the municipality agreed to assign special policemen at the owner's expense. Id. at 582. Thus, the municipalities possessed the right to allow owners of residential property to furnish police protection at their own expense.
Similarly, the court in Braitman v. Overlook Terrace Corp. , 68 N.J. 368 (1975), was also faced with a landlord's civil liability to a residential tenant for loss due to theft as a result of the landlord's failure to supply adequate locks on the door to the tenant's premises. The court took notice of a recent judicial trend toward expanding the scope of duty ...