[271 NJSuper Page 71] Before this court is the objection, pursuant to R. 4:59, of defendant Asbury Park Housing Authority ("APHA") to a levy
placed upon its bank accounts by plaintiff Kingsley Arms, Inc. ("Kingsley"). Kingsley has cross-moved for an order compelling a turnover of the funds which have been levied upon. These motions call into question the meaning, scope and, most significantly, the constitutionality of N.J.S.A. 40A:12A-34.*fn1
Our courts have never addressed the constitutionality of N.J.S.A. 40A:12A-34, and have rarely addressed the meaning or scope of N.J.S.A. 40A:12A-34 or other similar statutes.*fn2 To put
these issues in context requires, first, a review of the factual background and history of the parties' disputes.
The facts are relatively simple. Kingsley is the owner of the Kingsley Arms Apartments, a 101-unit building located at 200 Deal Lake Drive, Asbury Park, New Jersey. In 1971, APHA entered into a lease with Kingsley's predecessor in title whereby APHA leased ninety units in order to enable APHA to provide low-rent housing for eligible low-income families.
Kingsley brought this action for damages due to APHA's failure to pay rent. The chronic failure of APHA to pay rent to Kingsley in a timely manner in the past few years has resulted in the entry of several judgments against APHA totalling $250,155.31. These judgments, as well as a judgment obtained by Jersey Central Power & Light Co. against APHA in the consolidated case, were satisfied by way of execution in the same manner to which APHA
Subsequently, Kingsley obtained two judgments against APHA -- one on March 9, 1993, for $129,789.49, and another on April 30, 1993, in the amount of $67,863.29. Kingsley obtained a writ of execution to satisfy these judgments.*fn4 Thereafter, the Sheriff of Monmouth County levied upon two of APHA's bank accounts.*fn5 These levies constitute the subject of the present proceedings.
Since N.J.S.A. 40A:12A-34 provides that "All property of . . . [a] housing authority shall be exempt from levy and sale by virtue of an execution," APHA seeks to vacate the two existing levies. APHA asserts that this statute applies to the present situation and exempts APHA's property from execution. In response, Kingsley argues that this statute does not apply because the Legislature did not intend to bar execution in these circumstances; in the alternative, Kingsley argues that if the statute does apply to bar execution, then it must be unconstitutional.
II. DOES N.J.S.A. 40A:12A-34 BAR EXECUTION?
A. APPLICABILITY OF THE STATUTORY EXEMPTION
The legislative history of the Local Redevelopment and Housing Law ("the Act"), N.J.S.A. 40A:12A-1 to -49, demonstrates that the Legislature intended to consolidate the multiple and complicated existing statutes by replacing them with a single, comprehensive statute governing all redevelopment agencies and housing authorities irrespective of when they were created:
c. . . . there has grown a varied and complex body of laws, all directed by diverse means to the principal goal of promoting the physical development that will be most conducive to the social and economic improvement of the State and its municipalities.
d. It is the intent of this act to codify, simplify and concentrate prior enactments relative to local redevelopment and housing, to the end that the legal mechanisms for such improvement may be more efficiently employed.
N.J.S.A. 40A:12A-2. Thus, in general, the Act was intended to do little more than "simplify and concentrate" the variety of prior enactments on the subject.*fn6 Against this backdrop, it is necessary to examine Kingsley's various arguments against the application of the statutory exemption.
1. Is APHA a "Housing Authority" Within the Meaning of the Act?
Kingsley argues that APHA is not a "housing authority" falling within the parameters of this legislation. In support of its contention, Kingsley refers to N.J.S.A. 40A:12A-3, which defines "housing authority" as "a housing authority created or continued pursuant to this act." Kingsley reasons that because the municipal governing body of the City of Asbury Park did not adopt a resolution or an ordinance "reconstituting" APHA after the effective date of the statute, APHA does not have the right to invoke
N.J.S.A. 40A:12A-34. This argument exalts form over substance. There is nothing in the statute or its legislative history to suggest that all municipalities were required to "reconstitute" their housing authorities, a purely ministerial event, in light of the adoption of the Act. Indeed, this argument flies in the face of the Legislature's stated intent to simplify the laws creating and governing housing authorities.
2. Is the Levy Governed By N.J.S.A. 40A:12A-34 or its Predecessor?
N.J.S.A. 40A:12A-34 was not adopted until August 5, 1992, but was expressly made retroactive to January 18, 1992. Prior to the adoption of N.J.S.A. 40A:12A-34, only "real" property of a housing authority was exempt from execution. N.J.S.A. 55:14A-18*fn7 (superseded by N.J.S.A. 40A:12A-34).
Kingsley appears to argue that it is entitled to levy on APHA's bank accounts because the lease between Kingsley and APHA was entered into years prior to the adoption of N.J.S.A. 40A:12A-34. Since the levy would have been permitted by that ...