STATE OF NEW JERSEY v. MILL VILLAGE APARTMENTS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MILL VILLAGE APARTMENTS,

Defendant-Appellant.

_____________________________________

February 10, 2016

Argued January 20, 2016 Decided

Before Judges Espinosa and Currier.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Municipal Appeal No. 2-14.

Charles X. Gormally argued the cause for appellant (Brach Eichler, L.L.C., attorneys; Mr. Gormally, of counsel and on the brief; Autumn M. McCourt, on the briefs).

Brock D. Russell argued the cause for respondent (Brock D. Russell, L.L.C., attorneys; Mr. Russell, on the brief).

PER CURIAM

Defendant, an apartment complex consisting of 201 units in Millville, argues the City of Millville exceeded the authority granted to it by the Legislature in enacting Millville Municipal Code Ordinances 11-73 and 11-76, which require annual registration and inspection of rental units, respectively. This challenge was not originated by an action in lieu of prerogative writs but, rather, by way of defendant's appeal from its conviction for violating 11-73. After the denial of defendant's motion to dismiss the complaint on the ground that the ordinances were invalid, counsel for defendant advised the court by letter dated January 21, 2014 of the following

To the extent that Your Honor denies our motion to dismiss, please be advised that Defendant pleads guilty and we graciously ask that Your Honor stay the sentencing pending our appeal.

"Generally, a guilty plea constitutes a waiver of all issues which were or could have been addressed by the trial judge before the guilty plea." State v. Davila, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 7) (quoting State v. Robinson, 224 N.J. Super. 495, 498 (App. Div. 1988)). In Davila, we reviewed the scope of that rule and its exceptions

The waiver even applies to claims of certain constitutional violations. See State v. Knight, 183 N.J. 449, 470 (2005) ("[A] defendant who pleads guilty is prohibited from raising, on appeal, the contention that the State violated his constitutional rights prior to the plea.", (quoting State v. Crawley, 149 N.J. 310, 316 (1997)) [sic]; State v. J.M., 182 N.J. 402, 410 (2005) ("[T]he failure to enter a conditional plea under Rule 3:9-3(f) generally bars appellate review of non-Fourth Amendment constitutional issues.").

As our Supreme Court explained in Knight, supra, the waiver rule has three exceptions. 183 N.J. at 471; see State v. Wakefield, 190 N.J. 397, 417 n.1 (2007) (confirming "that only three exceptions for waiver exist"), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). The first, expressly provided by Rule 3:5-7(d), permits a defendant to challenge on appeal an unlawful search and seizure of evidence after entering a guilty plea. See Knight, supra, 183 N.J. at 471. The second, expressly authorized by Rule 3:28(g), permits an appeal after a guilty plea from an order denying entry into the pre-trial intervention program. Ibid. Lastly, pursuant to Rule 3:9-3(f), a defendant may appeal those adverse decisions specifically reserved by a conditional guilty plea entered in accordance with the Rule. Ibid.

Rule 3:9-3(f) requires that a defendant satisfy several requirements before a conditional guilty plea can be accepted. "[A] defendant may plead guilty while preserving an issue for appellate review only with the 'approval of the court and the consent of the prosecuting attorney.'" State v. Gonzalez, 254 N.J. Super. 300, 304 (App. Div. 1992) (emphasis added) (quoting R. 3:9-3(f)). This reservation of "the right to appeal from the adverse determination of any specified pretrial motion" must be placed "on the record." R. 3:9-3(f). It must also specifically be approved by the State and by the court.

[Id. at 7-9.]

The record presented to us fails to show defendant's compliance with the required procedure for a conditional plea or that any of these exceptions apply to warrant our consideration of defendant's challenge to the ordinances. Nonetheless, defendant presents the following arguments in this appeal

POINT I

THE TRIAL COURT ERRED IN HOLDING THAT AN ORDINANCE REQUIRING ANNUAL INSPECTIONS OF RENTAL PROPERTY RATHER THAN INSPECTIONS ON CHANGE OF OCCUPANCY IS AUTHORIZED BY THE LEGISLATURE.

POINT II

THE TRIAL COURT ERRED IN HOLDING THAT THE LAKE VALLEY ASSOCIATES DECISION AUTHORIZES ANNUAL INSPECTIONS.

POINT III

THE TRIAL COURT ERRED IN HOLDING THAT THE INSPECTION FEES CHARGED BY THE MUNICIPALITY ARE NOT EXCESSIVE AND UNAUTHORIZED.

Even if we ignore defendant's failure to preserve its challenge to the ordinances for appeal, our review of these arguments in light of the record and applicable legal principles leads us to conclude that defendant's arguments lack merit and the argument raised in Point III does not merit discussion in a written opinion. R. 2:11-3(e)(1)(E).

Section 11-73 states in pertinent part

Each residential rental unit shall be registered annually. . . . The annual registration fee for each unit shall be $100 . . . .

A. No residential rental unit shall be occupied unless it is registered with the City . . . .

B. A registration permit shall be issued for each residential unit when the registration fee is paid. Thereafter, the rental unit shall be inspected. If the inspection results in a satisfactory rating, a certificate of continued occupancy shall issue which shall be valid for one year, unless there is a change in occupancy. However, the Housing Inspector may reinspect any residential rental unit during the year, when he has reasonable grounds to believe that the unit is no longer in compliance with the property maintenance code or these regulations.

C. The registration fee shall include the annual registration permit and two inspections . . . .

Section 11-76 states in pertinent part

Each residential rental unit within the municipality shall be inspected annually and with each change in occupancy. The Housing Inspector shall inspect the residential rental unit to insure compliance with these regulations and the property maintenance code. The Housing Inspector shall make a report promptly after each inspection.

"[M]unicipalities, being created by the State, have no powers save those delegated to them by the Legislature and the State Constitution." Dome Realty, Inc. v. Paterson, 83 N.J. 212, 225 (1980). The New Jersey State Constitution states

The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The powers of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.

[N.J. Const. art. IV, 7, 11.]

"Express powers as well as those that arise by fair implication are given broad latitude, so long as they are not wielded in contravention of the overarching statutory grant of authority or conflict otherwise with an express statutory limitation or prohibition." Varsolona v. Breen Capital Servs. Corp., 180 N.J. 605, 625 (2004). It follows that, "when reviewing a municipal action, we apply a presumption of validity and reasonableness to adopted ordinances." Timber Glen Phase III, LLC v. Twp. of Hamilton, 441 N.J. Super. 514, 523 (App. Div. 2015). "A party challenging an ordinance must demonstrate the ordinance, in whole or in application to any particular property, is arbitrary, capricious or unreasonable. Therefore, the presumption of validity [cannot] be overcome unless the evidence clearly establishes its unreasonableness." Id. at 523-24 (alteration in original) (citations omitted).

Defendant argues the exclusive authority for the subject matter of the ordinances at issue here is N.J.S.A. 40:48-2.12m, which provides

The governing body of a municipality may adopt ordinances regulating the maintenance and condition of any unit of dwelling space, upon the termination of occupancy, in any residential rental property for the purpose of the safety, healthfulness, and upkeep of the structure and the adherence to such other standards of maintenance and condition as are required in the interest of public safety, health and welfare. Such ordinances shall require the owner of any residential rental property, prior to rental or lease involving a new occupancy of any unit of dwelling space in such property, to obtain a certificate of inspection or occupancy for the unit of dwelling space. Such certificate of inspection or occupancy shall be issued by the municipality upon the inspection of the unit of dwelling space by a municipal inspector and his findings that such unit meets the standards provided by law. The municipality may charge a fee to fund the costs of the inspections and the issuance of the certificates. For purposes of this act "owner" means the person who owns, purports to own, or exercises control of any residential rental property.

Defendant argues this statute grants municipalities the authority to require inspections of rental property but limits that authority to inspect such property to those occasions when there is a change in occupancy. The State counters that the authority granted by the legislature is not so limited and, citing Dome Realty, contends that both N.J.S.A. 40:48-2.12a1 and the general police powers granted by N.J.S.A. 40:48-2 authorized the enactment of Millville's registration and inspection ordinances. See Dome Realty, supra, 83 N.J. at 229-34.

In Lake Valley Associates v. Township Of Pemberton, 411 N.J. Super. 501 (App. Div.), certif. denied, 202 N.J. 43 (2010), we reviewed a challenge to an ordinance that required the registration of all rental units and required "at least one inspection every three years or upon change of occupancy." Id. at 502. The plaintiff in Lake Valley argued requirements imposed by the ordinance that exceeded those explicitly delegated by the legislature were not permitted. Id. at 504. We upheld the trial court's decision that the ordinance was not preempted by legislative action. Id. at 506-07.

In this case, defendant did not contest the validity of the municipality's authority to require annual registrations in the trial court, stating,

The principal focus of the challenge to the enforceability of this local ordinance deals with the frequency of inspection.

. . . .

This is not a challenge to the ability of a municipality . . . to require the registration of rental apartments.

The State enabling statute clearly allows municipalities to require the registration of apartments and apartment buildings.

However, at oral argument, following our decision in Timber Glen, defendant took the position that the registration requirement was a de facto licensing requirement and therefore invalid. See Timber Glen, supra, 441 N.J. Super. at 518. Defendant's reliance upon Timber Glen is misplaced.

In Timber Glen, the municipality exercised regulatory authority to require inspections of rental property prior to a new tenancy. Id. at 526. Its authority to do so was not at issue and so, it has no bearing on whether a municipality may require more frequent inspections. The ordinance reviewed in Timber Glen required a license before any residential rental unit could be occupied and an annual license fee of $100 per unit. Id. at 519. The municipality contended it had authority under the Licensing Act, N.J.S.A. 40:52-1, to require such licenses and that such authority was compatible with its regulatory power under N.J.S.A. 40:48-2.12m. Id. at 523. We rejected the municipality's position, noting, "the powers to regulate and to license, although related, are discrete" and that the power to regulate did not include the power to require a license. Id. at 526 (alteration in original); see also Bernardsville Quarry v. Borough of Bernardsville, 129 N.J. 221, 229-30 (1992). As we noted, our analysis focused on the authority granted by the Licensing Act, which was not the case in Lake Valley. See Timber Glen, supra, 441 N.J. Super. at 530 n.3. The fees here were imposed for functions related to the City's exercise of regulatory power that was authorized by statute. Affirmed.

1 N.J.S.A. 40:48-2.12a provides

The governing body of any municipality may make, amend, repeal and enforce ordinances to regulate buildings and structures and their use and occupation to prevent and abate conditions therein harmful to the health and safety of the occupants of said buildings and structures and the general public in the municipality.