The opinion of the court was delivered by: Simandle, District Judge
This case arises out of a dispute between Plaintiffs -- two companies that own and lease rental apartments in two complexes, as well as an individual affiliated with the companies -- and the Borough of Magnolia, where the apartment complexes are located. In the claims at issue in Plaintiffs' motion, Plaintiffs seek (1) to preliminarily enjoin the Borough from enforcing its property rental ordinances in a manner that infringes upon Plaintiffs' rights under the Fair Housing Act, 42 U.S.C. 3601, et seq. ("FHA"), and (2) partial summary judgment granting a declaratory determination by the Court that the Borough's ordinance pertaining to the issuance of certificates of occupancy is facially unconstitutional. Defendant has opposed Plaintiffs' motion through Affidavits and a series of documents attached thereto, but, as is explained, infra, has not submitted a brief explaining why Plaintiffs are not entitled to the relief they seek.
The Court heard oral argument on Plaintiffs' motion at a hearing convened on February 11, 2009. For the reasons explained below, the Court will enter a limited preliminary injunctive order, described in detail herein, enjoining Defendant from further engaging in conduct which the Court finds violates Plaintiffs' rights under the FHA, and will grant Plaintiffs' motion for partial summary judgment, finding the ordinance pertaining to the issuance of certificates of occupancy facially unconstitutional.
The facts as they appear from the parties' submissions are as follows.*fn1 Plaintiff Marvin Raab is a partner at Raab Family Partnership "(RFP"), a company that owns the Forest Gate apartment complex in the Borough of Magnolia. (Raab Aff. ¶¶ 1-5.) RFP owns a seventy-five percent interest in R&R Real Estate ("R&R"), a company that owns the Amber Court apartment complex, also located in Magnolia. (Id.) Plaintiffs have owned the Forest Gate and Amber Court complexes since 1996 and 1999, respectively. (Id. at ¶¶ 7-8.)
In 2007, the Borough enacted Ordinance 2007:11A, entitled "An Ordinance Creating 'Landlord Responsibilities.'" (Daily Aff. Ex. A at 1.) Ordinance 2007:11A contains among its provisions two sections which Plaintiffs find to be harsh and potentially unlawful. First, section 5.36.030 makes "[a]ny landlord and/or owner of a leased property within the borough . . . responsible for any activities, actions or events and the conduct of any person and/or animal which occurs in, on or about said premises or property[, including] any disorderly conduct, nuisance and any other behavior or conduct which is a violation of any state statute or of any of the provisions of the code of the borough." (Id. at 3.) Additionally, Ordinance 2007:11A created a licensing requirement for rental properties, charging $200 per rental unit per year, but, "if [the] landlord has been convicted of any violation of [the] borough code[,] the annual fee of said unit and all units if multiple units will be $500.00 each unit for [the] following year." (Id. at 4.)
Certain Magnolia landlords, including Plaintiffs, balked at the new ordinance, claiming that "the base fee of $200 was exorbitant as compared with similar fees charged by other municipalities," (Plotkin Aff. ¶ 12), that the fee increase per unit for any landlord's violation of any provision of the Borough Code was unreasonably punitive, and that the ordinance unreasonably imposed liability on landlords for the conduct of "any person and/or animal" on their premises. (Daily Aff. Ex. A at 3.) In response to the landlords' concerns, the Borough convened a meeting at Borough Hall on February 8, 2008. (Plotkin Aff. ¶ 17.) At the meeting, the Mayor of Magnolia, Betty Ann Cowling-Carson, defended the ordinance, stating that the increased fees were necessary to hire rental property inspectors and, apparently with regard to the landlord liability provisions in the ordinance, that rental tenants were having arguments that required the police to respond to complaints at apartment complexes. (Id. at ¶ 21.) According to a witness who was present at the Borough Hall meeting, Mayor Cowling-Carson then stated that the Borough's primary concern with regard to rental complexes was that the Borough did not want "the trash from Lindenwold moving to Magnolia." (Id. at ¶ 22.) Plaintiffs believe that the Mayor's remarks indicated that the ordinance and its subsequent enforcement policies targeted Plaintiffs on account of the race of their current and prospective tenants. (Id. at ¶¶ 30-31.)
In the wake of the Mayor's comments at the Borough Hall meeting, Plaintiffs allege that they have been subjected to overzealous enforcement of the Borough's rental ordinances. This alleged over-enforcement appears to consist of the Borough having issued citations of Plaintiffs' properties that fall into two categories: (1) citations for violating the Borough's ordinance requiring landlords to possess current certificates of occupancy for all rented properties, and (2) citations of properties for maintenance problems which, according to Plaintiffs, failed to put Plaintiffs on notice of the specific nature of the maintenance violations and the basis for the citations. As to the first category of citations, in early April 2008 -- approximately two months after the Borough Hall meeting -- the Borough issued fifty-three citations to Plaintiffs for having rented units without having first obtained certificates of occupancy.*fn2 (Id. at ¶ 38.) When Plaintiffs informed the Borough that they indeed possessed certificates of occupancy for all of the cited properties, and requested that the Borough re-examine its records, Plaintiffs were informed that the Borough "didn't have the time to check them and [that] it was basically [Plaintiffs'] task to disprove the charges." (Id. at ¶ 42.) Over the next four months, through numerous contacts between Plaintiffs' counsel and the Borough, Plaintiffs "obtained and submitted to the Borough the information that proved that in not one instance had [Plaintiffs] violated Chapter 112." (Id. at ¶ 45.)
In addition to these allegedly baseless citations for violating the Borough's certificate of occupancy ordinance, Plaintiffs allege that they have been issued citations for maintenance problems, but that the Borough has not been forthcoming as to the nature of the specific violations (or at least has not been forthcoming on a timely basis). (Plotkin Aff. ¶¶ 27-29.) On April 1, 2008, Mr. Raab received from Magnolia Police Code Enforcement Patrolman Kevin Lally a notice identifying various specific maintenance and building code violations at Plaintiffs' properties. (Raab Aff. Ex. C at 1.) The notice informed Plaintiffs that the identified violations needed to be remedied within thirty days "to avoid citations from the Borough," and stated that following the thirty-day period, the Borough would reinspect the property. (Id.) This notice was followed by an April 16, 2008 letter indicating that "due to the extreme nature of the violations," new certificates of occupancy for Plaintiffs' apartment complexes would not issue until the violations were remedied. (Raab Aff. Ex. D.)
Plaintiffs allege that they addressed each of the identified violations and met with the Manager of Borough Services, who identified additional cosmetic matters that he wished for Plaintiffs to address. (Raab Aff. ¶¶ 39-40.) Plaintiffs believed that these cosmetic matters were a "wish list" and that correcting these items was voluntary. (Id. at ¶ 41.) On June 11, 2008, the Borough wrote to Plaintiffs indicating that no certificates of occupancy would be issued "until further maintenance issues are corrected." (Raab Aff. Ex. E.) A series of letters between Plaintiffs' counsel and the Borough ensued, in which Plaintiffs asserted that the remaining "maintenance issues" were merely "cosmetic or aesthetic in nature and pose[d] no violation of Borough Ordinances or Building Codes," (Raab Aff. Ex. F at 1), and the Borough insisted that such matters be corrected before additional certificates of occupancy would be issued. (Raab Aff. Ex. G at 1.) According to Plaintiffs, it was not until July 24, 2008 that they received specific details regarding the cited code infractions. (Raab Aff. Exs. I and J.) Plaintiffs addressed the cited repairs and by September 2008 the Borough resumed issuing certificates of occupancy to Plaintiffs. (Raab Aff. ¶ 55.) Plaintiffs allege that the Borough's allegedly unjustified withholding of certificates of occupancy resulted in lost rental income in the amount of $76,030.00. (Id. at ¶ 56.)
Plaintiffs commenced this action on October 13, 2008, alleging, inter alia, that the Borough's ordinance governing the issuance of certificates of occupancy is facially unconstitutional (Count I) and that the Borough's enforcement of its allegedly discriminatory rental ordinances violated Plaintiffs' rights under the FHA (Count VII). On December 3, 2008, Plaintiffs filed a motion seeking (1) to enjoin the Borough from enforcing its property rental ordinances in a manner that infringes on Plaintiffs' rights under the FHA, and (2) a declaratory determination by the Court that the Borough's ordinance pertaining to the issuance of certificates of occupancy is unconstitutional on its face [Docket Item 7]. After Defendant failed to oppose Plaintiffs' motion, the Court convened a telephone conference and, with Plaintiffs' consent, entered an Order [Docket Item 12] scheduling a hearing on Plaintiffs' motion and affording Defendant an opportunity to oppose the motion.
On January 26, 2009, Defendant filed its opposition to Plaintiffs' motion, which consists entirely of two short affidavits and a collection of attached documents [Docket Items 14-16], the significance of which is not explained in a legal brief. Defendant likewise failed to "file a statement that no brief is necessary and the reasons therefor," as Local Civil Rule 7.1(d)(4) requires of parties opposing a motion but not submitting an opposition brief. As the Court explained in its Order entered on February 3, 2009, "Defendant also failed to submit a 'responsive statement of material facts addressing each paragraph of the movant's statement [of facts as to which there is no genuine issue],' as Local Civil Rule 56.1(a) requires." (Docket Item 18 at 1-2 n.1.) In its February 3, 2009 Order, the Court ordered that "if Defendant intends to oppose any aspect of Plaintiffs' motion for preliminary injunctive relief,  Defendant [must] file a brief which sets forth its arguments, with appropriate citations to the factual record and to legal authority, as to why the relief sought by Plaintiffs should not be entered." (Id. at 2.) Defendant filed no such submission. The Court heard oral argument on Plaintiffs' motion at a hearing convened on February 11, 2009 and reserved decision.*fn3
In their motion, Plaintiffs seek (1) to enjoin the Borough from enforcing its property rental ordinances in a manner that infringes upon Plaintiffs' rights under the FHA, and (2) a declaratory determination by the Court that the Borough's ordinance pertaining to the issuance of certificates of occupancy is facially unconstitutional. The Court addresses these separate aspects of Plaintiffs' motion in turn below.
A. Motion for Preliminary Injunctive Relief
Plaintiffs assert a claim for preliminary injunctive relief pursuant to the Fair Housing Act, 42 U.S.C. 3601, et seq., arguing that Defendant has issued bogus citations of Plaintiffs' properties for nonexistent violations of the certificate of occupancy ordinance, and has enacted what Plaintiffs view as an unreasonable and punitive "Ordinance Creating Landlord Responsibilities," (Daily Aff. Ex. A), in an effort to interfere with Plaintiffs' efforts to rent their properties to nonwhite tenants. Plaintiffs seek a "preliminary injunction restraining the Borough of Magnolia from enforcing any of its housing ordinances against the plaintiffs pending the final disposition of this litigation . . ." (Proposed Order at 2.) The following discussion sets forth the standard governing the Court's review of Plaintiffs' motion for preliminary injunctive relief before addressing the merits of Plaintiffs' motion.
In order to obtain a preliminary injunction, the moving party must establish that "(1) it has a likelihood of success on the merits, (2) it will suffer irreparable harm if the injunction is denied, (3) granting preliminary relief will not result in even greater harm to the nonmoving party, and (4) the public interest favors such relief." Rogers v. Corbett, 468 F.3d 188, 192 (3d Cir. 2006) (internal quotations and citations omitted). "All four factors should favor preliminary relief before the injunction will issue." S & R Corp. v. Jiffy Lube Intern., Inc., 968 F.2d 371, 375 (3d Cir. 1992). As the Court of Appeals has recognized:
The grant of injunctive relief is an extraordinary remedy which should be granted only in limited circumstances.
This proposition is particularly apt in motions for preliminary injunctions, when the motion comes before the facts are developed to a full extent through the normal course of discovery.
American Tel. and Tel. Co. v. Winback and Conserve Program, Inc., 42 F.3d 1421, 1426-27 (3d Cir. 1994) (internal ...