A state judge has invalidated a municipal ordinance permitting local officials to annually inspect rental properties and charge licensing fees to owners.
Camden County Superior Court Judge Louis Meloni granted a summary judgment to five multifamily property owners in Wawn LLC v. Borough of Lindenwold, CAM-L-6022-08.
Meloni based his Nov. 9 ruling from the bench mainly on the lack of statutory authority for Lindenwold’s statute, says the plaintiffs’ attorney, Gary Gordon.
Similar provisions implemented in other municipalities may also be open to challenge, adds Gordon, of Feinstein, Raiss, Kelin & Booker in West Orange.
Lindenwold’s ordinance, No. 1294, requires annual registration and licensing fees of $50 per unit and $150 per building grounds for buildings with more than four units, and requires yearly inspections that, if unsatisfactory, can result in license revocation.
It also makes landlords responsible for tenants’ and guests’ disorderly or otherwise impermissible conduct, under threat of license revocation.
The plaintiffs — owners of multifamily properties in Lindenwold, some of whom own more than one property — filed a complaint in November 2008.
They argued that there is no legislative authority for municipalities to license apartment buildings or conduct annual inspections. They cited N.J.S.A. 40:48-2.12(m), which allows for ordinances requiring inspections, but only upon change of occupancy, and N.J.S.A. 46:8-28, which requires registration with the state, not local authorities.
They further argued that the regulatory function laid out in the ordinance was pre-empted by the state. The Department of Community Affairs charges a $10 registration fee and requires inspections every five years.
“Since annual inspections are not authorized by the Legislature, the fee charged for the ministerial act of collecting a registration document is excessive and outrageous,” Gordon wrote in his brief, adding that the ordinance “smacks of a pure revenue-raising measure.”
Meloni has yet to issue a written order or opinion, says Gordon.
Lindenwold had not filed an appeal as of Monday.
Salvatore Siciliano of Haddonfield, who represents Lindenwold in the case, did not return a reporter’s calls.
According to Matthew Weng, staff attorney for the New Jersey League of Municipalities, at least 12 towns have an ordinance similar to Lindenwold’s.
At least one ordinance, in Garfield, has taken local authority a step further and imposes criminal penalties on property owners for refusing “free access” to construction officials to “enter, examine and survey at all reasonable times all dwellings, dwelling units, rooming units and premises.”
In a Jan. 31 published opinion, the Appellate Division deemed the ordinance unconstitutional as applied in State v. Heine, 424 N.J. Super. 48 (2012).
In that case, the owner of a two-family home was criminally prosecuted, and fined $2,250 in municipal court, for refusing to allow city officials onto the premises on four occasions in 2009 and 2010.
Two Law Division judges upheld the fines and found the ordinance reasonable, unambiguous and rationally related to health and safety.
But the appeals court said the provision violated the property owner’s Fourth Amendment protection against warrantless searches.
The owner was not involved in a highly regulated industry — such as alcohol sales or gambling — and there was no emergency or public health danger, either of which could serve as an exception to the warrant requirement, the panel said.
The state Supreme Court granted certification in July, though oral arguments had not been scheduled yet as of Monday, according to a judiciary database that tracks cases’ appellate status.