On certification to the Superior Court, Appellate Division, whose opinion is reported at 169 N.J. Super. 69 (1979).
For reversal: -- Chief Justice Wilentz and Justices Sullivan, Pashman and Handler. For affirmance -- Justices Clifford, Schreiber and Pollock. The Opinion of the Court was delivered by Pashman, J. Schreiber, J., dissenting. Justice Clifford and Justice Pollock join in this opinion.
This appeal is a companion case to Dome Realty, Inc. v. City of Paterson, 83 N.J. 212 (1980), and Orange Taxpayers Council v. City of Orange, 83 N.J. 246 (1980), also decided today. Here we consider the validity of an amendment to a municipal zoning ordinance that requires the issuance of a certificate of occupancy before a new occupant may take possession of rented premises within a multiple-dwelling residence.
On October 20, 1970, the Borough of Little Ferry enacted Ordinance #375 to supplement and amend the borough's zoning ordinance. As amended, Article 10, Subsection 10:2-3 of the zoning ordinance provided in part:
In the event any building, dwelling unit in a multi-family dwelling house, or part thereof, shall become vacant, or, in the event that there is a change of tenants or occupants thereof, said building, dwelling unit in a multi-family dwelling house, or part thereof shall not be reoccupied by a new or subsequent tenant or occupant unless a Certificate of Occupancy has been issued specifically for said new tenant or occupant. Any such vacancy or change of occupants or tenants shall render null and void any Certificate of Occupancy that had been previously issued for said building, dwelling unit or part thereof.
Another portion of the ordinance specifically exempted one- and two-family dwellings from the certification requirement.
The ordinance empowered the borough's Building Inspector to issue certificates of occupancy indicating "that the building or dwelling unit has complied with the provisions of [the zoning] Ordinance and such other ordinances of the Borough of Little Ferry as may be applicable." The ordinance placed responsibility for procuring a new certificate upon the landlord. Although it provided that the landlord must notify the Building Inspector "within forty-eight hours of any vacancy," the ordinance did not establish a detailed procedure for the issuance of new certificates. It required that after the landlord submitted an application with a fee of $5 to the Building Inspector, the latter would either issue a certificate or provide a written denial "setting forth any and all reasons for the refusal" within 48 hours.
Defendant C.I.B. International owned and operated the "Florence Gardens" apartment complex on Liberty Street in Little Ferry. On January 7, 1978, the borough's Housing Inspector, an
official of the municipal Board of Health, found a defective toilet flush system in Apartment 14 of the complex. He returned to the apartment on January 30 and found that defendant had not repaired the toilet. Between the time of original inspection and a third visit by the official on February 8,*fn1 a new tenant had moved in, but a new certificate of occupancy had not been issued because of the broken flush system.
On February 4, 1978, the Housing Inspector filed a criminal complaint against defendant in Little Ferry Municipal Court. Alleging a violation of Ordinance # 375, the complaint stated that C.I.B. International had failed to obtain a new certificate for Apartment 14 and had "re-rented [the] premises prior to inspection to determine compliance" with the necessary repairs.
At the commencement of the trial in municipal court on February 27, 1978, defendant moved for dismissal of the complaint on the grounds that Ordinance # 375 was invalid and unconstitutional. See R. 7:4-2(e); R. 3:10-3. The court reserved immediate decision on the motion but denied it at the end of the State's case. At the conclusion of the trial on April 3, 1978, the court found defendant guilty and imposed a fine of $100 plus $15 in costs. Defendant appealed to the former Bergen County Court, which held a trial de novo on the record in the municipal court. Rejecting the landlord's renewed arguments concerning the validity of the Little Ferry ordinance, the court found defendant guilty and imposed sanctions identical to those levied by the municipal court.
In its appeal to the Appellate Division, defendant urged three specific grounds for reversal of the conviction:
that the Little Ferry zoning ordinance provision (a) is an invalid attempt by the municipality to utilize certificates of occupancy to enforce health ordinances; (b) unconstitutionally discriminates and denies equal protection of the laws to owners of multi-family dwellings, and (c) is invalid because the State has
preempted the field of multiple-family dwelling regulation by its enactment of the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 et seq. [ State v. C.I.B. International, 169 N.J. Super. 69, 71 (App.Div.1979)]
In a per curiam opinion, the Appellate Division reversed the conviction on the first enumerated ground without reaching defendant's other claims. Id. Relying upon this Court's decision in Dresner v. Carrara, 69 N.J. 237 (1976), the court found no statutory authorization for a requirement in a local zoning ordinance that a new certificate of occupancy be issued upon a new lease of residential property. 169 N.J. Super. at 72. As additional defects in the Little Ferry ordinance, the Appellate Division cited the lack of authority for employing either a zoning ordinance or a municipal building inspector to enforce health regulations. Id. The court also observed that the certification requirement deprived the landlord of the use of its property without prior notice or an opportunity to be heard on the presence of violations. Id.
This Court granted plaintiff's petition for certification. 81 N.J. 345 (1979). We now reverse the Appellate Division and reinstate the conviction.
Our opinion today in Dome Realty, supra, addresses the principal issue upon which the Appellate Division based its decision in this case -- whether regulating the conditions of residential dwellings by means of successive certificates of occupancy is beyond a municipality's delegated authority. In Dome Realty we observed that our earlier decision in Dresner v. Carrara, supra, reserved this question. See Dome Realty, 83 N.J. at 231-232; Dresner, 69 N.J. at 243. The court in Dresner listed several conventional functions for certificates of occupancy, see id. at 242, but noted that "[t]here may be, or there may later develop, other occasions when such a certificate will serve a useful and valid end in land use control." Id. at 243. Finding the present circumstances to constitute such an occasion, we reject the Appellate Division's view that Dresner renders Little Ferry's use of these certificates invalid.
At present the regulatory scheme embodied in Ordinance # 375 is expressly authorized by N.J.S.A. 40:48-2.12m, see L.
1979, c. 476; Dome Realty, 83 N.J. at 227-228. However, this new statute, which became law on February 27, 1980, see L. 1979, c. 476, § 2, cannot serve to validate defendant's prior conviction for violating the ordinance. Such a retroactive application of legislation authorizing local criminal prohibitions would violate the Ex Post Facto Clauses of the Federal and State Constitutions. U.S.Const., Art. I, § 10, cl. 1; N.J.Const. (1947), Art. IV, § 7, par. 3. See Dobbert v. Florida, 432 U.S. 282, 292, 97 S. Ct. 2290, 2297, 53 L. Ed. 2d 344 (1977); State v. Donato, 106 N.J.L. 397, 403 (E & A 1930); Dock Watch Hollow Quarry Pit, Inc. v. Warren Tp., 142 N.J. Super. 103, 121 (App.Div.1976), aff'd p.c.o.b., 74 N.J. 312 (1977); Lindsley v. Bd. of Managers, New Jersey State Prison, 107 N.J.L. 51, ...