Lake Valley Associates, L.L.C. v. Township of Pemberton, A-4040-07T2; Appellate Division; per curiam opinion; decided and approved for publication February 1, 2010. Before Judges Stern, Sabatino and Lyons. On appeal from the Law Division, Burlington County, L-2669-06. [Sat below: Judge Sweeney.] DDS No. 27-2-6682 [12 pp.]

Plaintiff, the owner of a large apartment complex in Pemberton Township, appeals the Law Division’s order that dismissed plaintiff’s action in lieu of prerogative writs challenging the constitutionality and statutory validity of Ordinance No. 5-2006 adopted by the township in May 2006. The ordinance imposes certain registration obligations and other regulatory requirements on landlords within the township.

The township agreed to revise certain aspects of the ordinance. Plaintiff’s remaining challenges to the ordinance were considered by the Law Division.

The trial court concluded that the ordinance was for a valid public purpose, did not offend either the U.S. Constitution or the N.J. Constitution, and was not pre-empted by any New Jersey statutes, including the Hotel and Multiple Dwelling Law. The trial court also found that the ordinance did not usurp the judiciary’s designated functions or violate principles of separation of powers.

Plaintiff appeals, renewing its contentions that the ordinance is unconstitutional and that it conflicts with state law.

Held: The adopted ordinance imposing registration and other regulatory requirements on landlords is valid and is not pre-empted by the Hotel and Multiple Dwelling Law or other state law.

Rejecting plaintiff’s claims that the adopted ordinance is not for a valid public purpose; violates due process and separation-of-powers principles of the U.S. Constitution and the N.J. Constitution; and is pre-empted by the Hotel and Multiple Dwelling Law and by other state statutes, the Appellate Division affirms the Law Division’s dismissal of plaintiff’s claims, substantially for the reasons expressed by Assignment Judge John Sweeney in his written opinion.

At the outset of his analysis, Judge Sweeney underscored the presumption of validity attached to claims of state pre-emption. Judge Sweeney then went on to address plaintiff’s substantive claims of state pre-emption.

In Inganamort v. Borough of Fort Lee , the Supreme Court established a three-step analysis for determining the propriety of an exercise of legislative authority by a municipality: (1) whether the state constitution prohibits the delegation of municipal power on a particular subject because of the need for uniformity; (2) if the Legislature may delegate authority in this area, whether they have done so; and (3) whether any delegation of power to municipalities has been pre-empted by other state statutes dealing with the same subject matter.

Ordinarily, in deciding issues of pre-emption, the court should consider the five factors set forth in Overlook Terrace Mgmt. Corp. v. Rent Control Bd. of West New York . However, in this case, such an analysis is not required because the H&MD Law itself contains an explicit expression that pre-emption was never intended. In addition, none of the rules or regulations promulgated pursuant to it can pre-empt a municipality from acting in the field. The ordinance does not conflict with the H&MD Law. Restriction and expansion is specifically allowed in the H&MD Law itself. The regulation of multiple dwelling units is not an area that necessitates total uniformity statewide. None of the purposes of the ordinance is proscribed by the H&MD Law. Moreover, the focus of the ordinance is on the registration and licensing of rental properties rather than landlord/tenant relationships. The ordinance has nothing to do with tenants’ rights and is not pre-empted by the state Anti-Eviction Act.

Judge Sweeney further rejected plaintiff’s claims of due process violations and improper usurpation of judicial power, finding both the procedural and substantive due process rights of licensees and registrants are afforded adequate protection. There is no usurpation of the judicial power by the ordinance, which simply invests in the township council the power to enforce the ordinance. The ordinance grants the township council the power of enforcement over the revocation of registration only when a conviction in a court of competent jurisdiction occurs.

Plaintiff’s pre-emption arguments rest mainly on the dissent in Inganamort, in which Judge Conford advocated a more limited notion of the powers delegated by the state to municipalities in matters of rental housing. The appellate panel declines to apply the reasoning set forth in Judge Conford’s dissent, which the Supreme Court has failed to embrace in the three ensuing decades. Further, the panel does not read the trial court’s decision or the ordinance itself to authorize the township to impose a sanction of incarceration merely by a vote of the township council without a trial before a judicial officer. In addition, the panel does not read the ordinance to require a landlord in the township to refrain from entering into a lease with a tenant merely because he or she has a prior criminal record. Lastly, the panel notes that the trial court’s disposition of plaintiff’s facial challenge does not foreclose a future “as ­applied” challenge to the ordinance on its enforcement.

— By Debra McLoughlin

For appellant — Glenn P. Callahan (Keeley & Callahan). For respondent — David A. Clark (GluckWalrath; Andrew Bayer of counsel; Clark and William Katz on the brief).