On certification to the Superior Court, Appellate Division.
Clifford, Wilentz, Handler, Pollock, Stein, O'Hern, Garibaldi
The opinion of the court was delivered by
We granted certification, 130 N.J. 394, 614 A.2d 617 (1992), to review the Appellate Division's judgment upholding an ordinance of the City of Newark that requires certain private-property owners to provide armed security guards on their premises eight hours each day. Because of the broad sweep of the municipal police power in this state and because the legislative history of the ordinance contains sufficient evidence to withstand an attack that the ordinance is an unreasonable exercise of that power, we hold that imposition of such a requirement was within the City's power. Therefore, we affirm.
In October 1991, the City Council of Newark adopted the following ordinance:
Armed Security Guard Required. Except as is otherwise herein provided all public and private housing buildings in the City of Newark, New Jersey, which contain over 100 housing units shall be required to have present on the premises an armed security guard for eight of every twenty-four hours, as well as an unarmed security guard for the remaining 16 hours, during each day of a year. Housing units which are situated on the grounds of hospitals, regularly patrolled by a security force, and wherein such grounds are revisited by a security patrol at least once per hour, shall be exempt from the requirement of maintaining an armed security guard on the premises. The provisions of this section shall not apply to any dwelling unit which is a condominium development or any rental or condominium building with units each having an individual exterior entrance.
That ordinance represents the final form of an earlier-enacted ordinance that required twenty-four-hour armed security for buildings with more than seventy-five units. The Council amended the original ordinance in order to lessen its financial burden on building owners. Plaintiffs, owners of certain apartment buildings in Newark affected by the ordinance, filed a complaint in lieu of prerogative writ, challenging the ordinance as originally enacted. The trial court upheld the City's actions as within the municipal police power.
Plaintiffs appealed, and the Appellate Division affirmed, substantially adopting the trial court's analysis. Because the City had amended the ordinance, adding the exemption for certain condominium and rental developments, the Appellate Division considered a slightly different version of the ordinance from the one that the trial court had considered.
In their attack on the ordinance in this Court, plaintiffs offer several arguments based on the New Jersey Constitution and our prior case law. In addressing those arguments, we are mindful of the limitations on our power to review the City's action. Our role is not to review the merits of the legislation, nor to decide whether the ordinance will eradicate crime in high-rise apartments in Newark, nor to decide if Newark has chosen the most effective method of reducing the crime rate in the vicinity of the buildings regulated by the ordinance. Our sole function is to evaluate the City's actions in light of the salient constitutional provisions and established precedent. With that focus established, we turn now to plaintiffs' arguments.
First, plaintiffs challenge the City's action as an arbitrary and unreasonable exercise of the municipal police power. Municipalities may enact ordinances pursuant to the police power, Hutton Park Gardens v. West Orange Town Council, 68 N.J. 543, 564, 350 A.2d 1 (1975); N.J.S.A. 40:48-2, but police-power legislation is subject to the constitutional limitation that it be not unreasonable, arbitrary, or capricious, and that the means selected by the legislative body shall have real and substantial relation to the object sought to be attained, Bonito v. Bloomfield Township, 197 N.J. Super. 390, 398, 484 A.2d 1319 (Law Div. 1984).
A plaintiff attacking an ordinance as arbitrary or unreasonable bears a heavy burden. First Peoples Bank v. Medford Township, 126 N.J. 413, 418 (1991). Article IV, section VII, paragraph 11 of the New Jersey Constitution provides that "any law concerning municipal corporations formed for local government * * * shall be liberally construed in their favor." In addition, the City of Newark is chartered under the Optional Municipal Charter Law, N.J.S.A. 40:69A-1 to -210, which notes that "the general grant of municipal power contained in this article is intended to confer the greatest power of local self-government consistent with the Constitution of this State." N.J.S.A. 40:69A-30. We have previously construed the Optional Municipal Charter Law to provide powers additional to the general police power conferred in N.J.S.A. 40:48-2. See Hudson Circle Servicenter, Inc. v. Kearny, 70 N.J. 289, 298, 359 A.2d 862 (1976).
In Hutton Park, supra, we note that
legislative bodies are presumed to act on the basis of adequate factual support and, absent a sufficient showing to the contrary, it will be assumed that their enactments rest upon some rational basis within their knowledge and experience. This presumption can be overcome only by proofs that preclude the possibility that there could have been any set of facts known to the legislative body * * * [that] would rationally support a Conclusion that the enactment is in the public interest.
[68 N.J. at 564-65 (citations omitted).]
A plaintiff can overcome that presumption of validity only by a clear showing that an ordinance is arbitrary or unreasonable. Hudson Circle Servicenter, supra, 70 N.J. at 299. Plaintiffs have not made that required showing.
During hearings on the ordinance, several Council members and citizens spoke about the special circumstances and dangers presented by multiple dwellings like the plaintiffs' buildings. For instance, one witness said, "I would ask that the Council support [the ordinance], but one thing that troubles me about this ordinance, which I think is necessary because we do need armed security guards and doormen, is that there is no penalty [for violation of the ordinance] * * * ." (Emphasis added). A Newark landlord who testified against the ordinance nevertheless said, "I have at times gotten out of my car myself to chase people when I saw someone getting robbed in the street" near a large apartment building in Newark. Another Newark resident recounted two instances in which persons had "shot up" the high-rise apartment in which she resided.
Councilman Grant noted that "a number of high-rise buildings in this City * * * are just not protected[,] and people are walking in and out at their own risks[,] and in some instances, they walk out and don't come back because of molestation." He also said, "People are calling and complaining to us, 'I live in a high rise. We have no protection. There are attendants sitting there and they are powerless to do anything.'"
Other Council members also expressed support for the ordinance. For instance, Councilman Ronald Rice said:
Armed security is very effective at a high-rise entrances [sic], but it is just as much effective if not more so in those open spaces, whether it is private, whether it is Stephen Crane, Bradley Court, Hawkins, Roanoke, etc., or even a high-rise with a big court, because the hope is that one does not encounter a problem, but one deters a problem by his mere presence. I can say this to you, from my background in security management and criminal Justice, and I have taught this stuff, that is what my degree is in, is that without armed security as some of those locations are, could not deter[.] In fact, the mere presence of an unarmed guard there invites -- you'll be surprised.
Councilman Tucker spoke of "tenants who are crying for and deserve police protection or armed-guard protection within their buildings."
The Council provided the trial court with crime statistics for plaintiffs' properties and the areas immediately adjacent to those properties for the period between January 1989 and September 1990. The Council concedes that it did not have those figures before it when it considered the ordinance originally. Those statistics nevertheless do not lose their evidentiary value in respect of the reasonableness of the Council's belief that plaintiffs' properties presented a greater-than-usual threat to public safety. Those statistics reveal that the following crimes had been reported for those properties during that twenty-month period: fifty-two assaults, forty-two robberies, five rapes, and one murder. Plaintiffs point to the City's failure to contrast the per capita crime rate for their properties with the rates for other areas of the City. However, that observation ignores the fact that the higher population density of the regulated properties might alone justify a distinction.
Faced with the same information and experience as the Council, we might not conclude that large apartment buildings are peculiarly dangerous or that armed security is necessary, but we repeat: we are not free to substitute our judgment for the Council's. The anecdotal evidence offered by citizens and the Council's knowledge and experience, including Councilman Rice's background in law enforcement, supply a rational basis for the City's action because a reasonable person faced with the same evidence could conclude that large multiple dwellings present special security problems. Therefore, we are satisfied that the Council did not act arbitrarily or capriciously.
Next, plaintiffs challenge the ordinance as an improper attempt by the municipality to delegate its governmental duty to provide police protection. Without doubt, local governments bear the burden of providing police protection, and they may not transfer that duty to private citizens. Nevertheless, we have recognized in the past that under special circumstances municipalities may require that private parties provide assistance in the police-protection area. Because we do not perceive the requirement of armed security guards in the affected properties as constituting a wholesale transfer of the duty to provide police protection, but rather as representing a valid delegation of some portion of that duty -- a delegation justified by the facts supporting the City's call for assistance -- we reject plaintiffs' argument.
Undoubtedly, the duties of the guards envisioned in the Newark ordinance far exceed those that have previously received the approval of our courts. In the past, the courts have upheld an ordinance that required twenty-four-hour security services at a truck stop, Hudson Circle Servicenter, supra, 70 N.J. 289; an ordinance requiring a uniformed security guard during certain hours at apartment complexes of 250 or more units, Sunrise Village Assocs. v. Borough of Roselle Park, 181 N.J. Super. 567, 438 A.2d 945 (Law Div. 1980), aff'd, 181 N.J. Super. 565, 438 A.2d 944 (App. Div. 1981), certif. denied, 89 N.J. 413 (1982); and an ordinance requiring security guards at an arcade, Bonito, supra, 197 N.J. Super. 390. Those cases inform our resolution of the present case.
In Hudson Circle Servicenter, supra, 70 N.J. 289, we held that although a municipality may not make a wholesale transfer of the duty to protect citizens from crime, it may call on private citizens to provide assistance in the performance of that duty. In that case the crime in the area consisted of numerous thefts, five major altercations, eighteen accidental injuries to truck drivers using the facility, and at least three armed robberies. In addition, three runaways had been found there, a fugitive had been apprehended there, sixteen women had been arrested for prostitution or failing to give a good account of themselves, eighteen ...