Plaintiffs challenge a rent-control ordinance which exempts from its provisions new, large apartment complexes constructed in redevelopment areas as violative of the doctrine which takes its name from the opinion known as Mount Laurel II, So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., 92 N.J. 158 (1983). Defendants, Mayor and Council of the City of Jersey City (hereinafter Mayor and Council) move for an order to dismiss the complaint in lieu of prerogative writs filed by the All Peoples Congress of Jersey City and named plaintiffs (hereinafter All Peoples Congress) described in the pleading as "a non-profit public service association" and residents of Jersey City, respectively.
A preliminary question, arising from the procedural history, requires review of the legality of the enactment of the challenged ordinance, designated ordinance MC-451. During the pendency of submission of an ordinance to public referendum, are the powers of a municipality to legislate on the same subject matter abrogated? N.J.S.A. 40:69A-184 et seq.
The subject matter of ordinance MC-451 is reflected in the title: "An Ordinance Amending and Supplementing Chapter 13 (Rent Controls) Article XX (Multiple Dwelling Rent Controls) of the Jersey City Code Exempting Dwellings Located Within Development Areas from Rent Controls." That ordinance was adopted September 21, 1983. The challenge is framed in six counts, several of which are repetitive in content. The counts allege, among other things, that the ordinance is in violation of
the Faulkner Act, more particularly the referendum provision, N.J.S.A. 40:69A-185 et seq.; that it is in violation of an order entered September 16, 1982 by Judge Thomas S. O'Brien, then assignment judge; that it is "inextricably linked to land use serving as a restrictive device discriminating against lower economic classes." The several prayers of relief ask judgment "adjudging the enactment of MC-451 unlawful"; "mandating that the Defendant enact a Master Plan," and finally, grant "such other relief as is consistent with the directions of the Supreme Court as expressed in the decision commonly referred to as Mt. Laurel II, 92 N.J. 158 (1983)."
The City Council adopted a prior ordinance on September 1, 1981, ordinance MC-20, a law also designed to control rents which included the concept of vacancy decontrol. Shortly after its enactment, a committee of petitioners submitted a referendum petition directed to that ordinance to the city clerk pursuant to the statute previously cited. After the submission of supplementary valid signatures, the city clerk certified the sufficiency of the petition January 25, 1982. However, before the question was placed before the electorate, the city council on April 22, 1982 passed on first reading ordinance MC-178 which repealed the provisions of the challenged ordinance MC-20. Mention is made in passing to ordinance MC-179 and ordinance MC-180, passed at the same session of the council, which Judge O'Brien noted "appear to be identical in language and content to MC-20." Although ordinances MC-179 and MC-180 were tabled at a subsequent session, plaintiffs point to them as evidence of a strategy of the municipality to frustrate resort to the referendum device.
Following the enactment of ordinance MC-178, the city clerk and the city council petitioned the court for instructions. Judge O'Brien agreed with the position advanced by the city council that the issue had become moot by virtue of the repeal of ordinance MC-20 and the adoption of ordinance MC-178.
In the present action, plaintiffs argue that the enactment of ordinance MC-451 "substantially re-enacts portions of the rescinded MC-20." In resolving the question presented, the guidelines applied by Judge O'Brien, which include reference to 5 McQuillin, Municipal Corporations, (3 ed. 1981), § 16.53 in the excerpt from the transcript of the oral opinion, are equally applicable to the pending litigation:
Thus it has been said that the legislative body has no power to pass the same ordinance again or an ordinance in all essential features like the one against which the petition protested. This would plainly be to nullify the referendum provisions of the charter, but it is equally clear that the council is not prevented from legislating on the subject matter of the dead ordinance. [at 190]
A comparison of the pertinent provisions of ordinance MC-20 with those of ordinance MC-451 has been made by the court here set forth:
Comparison of Ordinance MC-20 and Ordinance MC-451
ordinance MC-20 ordinance MC-451
1. Exempted newly-constructed 1. Exempts only newly-construct-
buildings in the entire city. ed buildings of ...