Ballantyne House Associates v. City of Newark

• Decision Date: 27 December 1993
• Citation: 269 N.J.Super. 322,635 A.2d 551
• Parties: BALLANTYNE HOUSE ASSOCIATES, a Limited Dividend Limited Partnership; Forest Hill House Associates, a Limited Dividend Limited Partnership; Roberto Clemente-Shalom Towers, Inc., a Non-Profit Housing Corporation of New Jersey; 440 Elizabeth Avenue Corporation, a Limited Dividend Housing Corporation of New Jersey; Zion Towers, Inc., a Limited Dividend Housing Corporation, Plaintiffs-Respondents, v. CITY OF NEWARK, New Jersey, a Municipal Corporation, Defendant-Appellant. CLINTON HILL COMMUNITY GARDEN APARTMENTS, Plaintiff-Respondent, v. CITY OF NEWARK, a Municipal Corporation, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 322

269 N.J.Super. 322

635 A.2d 551

BALLANTYNE HOUSE ASSOCIATES, a Limited Dividend Limited

Partnership; Forest Hill House Associates, a Limited

Dividend Limited Partnership; Roberto Clemente-Shalom

Towers, Inc., a Non-Profit Housing Corporation of New

Jersey; 440 Elizabeth Avenue Corporation, a Limited

Dividend Housing Corporation of New Jersey; Zion Towers, Inc., a Limited Dividend Housing Corporation, Plaintiffs-Respondents, v. CITY OF NEWARK, New Jersey, a Municipal Corporation,

Defendant-Appellant.

CLINTON HILL COMMUNITY GARDEN APARTMENTS, Plaintiff-Respondent, v. CITY OF NEWARK, a Municipal Corporation, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Sept. 28, 1993.

Decided Dec. 27, 1993.

Kathleen C. Goger, Asst. Corp. Counsel, for defendant-appellant (Michelle Hollar-Gregory, Corp. Counsel, attorney; Ms. Goger, on the brief).

John J. Petriello, Newark, for plaintiffs-respondents (Levy, Ehrlich & Kronenberg, attorneys; Mr. Petriello, on the brief).

Before Judges SKILLMAN, KESTIN and WEFING.

The opinion of the court was delivered by

SKILLMAN, J.A.D.

Plaintiffs are limited dividend housing corporations and associations which entered into tax abatement agreements with Newark relieving them of the obligation to pay property taxes but requiring them to pay "an annual service charge for municipal services." When these agreements were executed, Newark was required by municipal ordinance to provide garbage collection services to plaintiffs' facilities. However, Newark repealed this ordinance in 1982 and enacted a new ordinance which classified plaintiffs' limited dividend housing facilities as commercial, Newark, N.J. Ordinances § 13A:1-1, ostensibly relieving Newark of its obligation to provide garbage collection services to plaintiffs. Newark, N.J. Ordinances § 13A:4-7(a). Sometime thereafter, Newark stopped collecting garbage from plaintiffs' facilities, and plaintiffs contracted for their own garbage collection services.

On June 19, 1989, plaintiffs Ballantyne House Associates, Forest Hills House Associates, Roberto Clemente-Shalom Towers, Inc., 440 Elizabeth Avenue Corp., and Zion Towers, Inc. filed an action in the Law Division challenging Newark's termination of garbage collection services to their facilities. On October 26, 1990, Clinton Hill Community Garden Apartments filed an identical action. Both complaints alleged that Newark had breached its tax abatement agreements with plaintiffs by terminating garbage collection services to their facilities. The complaints also alleged that the enactment of Newark's current garbage collection ordinance authorizing the termination of garbage collection to plaintiffs' facilities violated the equal protection guarantees of the federal and state constitutions. Newark counterclaimed, alleging that plaintiffs were in default in making certain municipal services payments required under the tax abatement agreements.

The cases were brought before the court by cross-motions for summary judgment. The trial court granted plaintiffs partial summary judgments, concluding that garbage collection was a "municipal service" which Newark had contracted to provide for the duration of the tax abatement agreements. Consequently Newark's termination of that service under the authority of the ordinance enacted in 1982 constituted a breach of contract. The court also concluded that Newark's current garbage collection ordinance violates the federal and state constitutions. Accordingly, the court entered partial summary judgments on October 9, 1992, enjoining Newark from enforcing its current ordinance against plaintiffs and ordering Newark to resume garbage collection from plaintiffs' facilities within thirty days. The court retained jurisdiction with respect to plaintiffs' claims for damages based on Newark's failure to provide garbage collection services during the preceding ten years and Newark's counterclaims for arrearages in payments required under the tax abatement agreements. The trial court subsequently granted Newark's motion for stays of these orders pending appeal.

We granted Newark leave to appeal from the orders granting plaintiffs partial summary judgments and consolidated the appeals. Thereafter, we denied plaintiffs' motion to dissolve the stays pending appeal.

We conclude that the trial court properly construed the tax abatement agreements to require Newark to provide garbage collection services to plaintiffs, at least as long as Newark continues to provide these services to other tax-paying multi-family housing facilities. However, the trial court erred in concluding that plaintiffs are necessarily entitled to specific performance of the agreements in the form of a resumption of garbage collection services upon thirty days notice without considering all relevant circumstances, including plaintiffs' delay in initiating these actions and the failure of at least some plaintiffs to make the payments required under the agreements. Therefore, we affirm the parts of the orders granting partial judgments which declare Newark's termination of garbage collection services to plaintiffs' facilities to be a breach of the tax abatement agreements, but reverse the parts of the orders granting equitable relief to plaintiffs and remand for the development of a more complete record on this issue. We also conclude that the trial court's determination that the current garbage collection ordinance denies plaintiffs equal protection of the law was unnecessary and based on an inadequate record.

I

Initially, we consider Newark's argument that the trial court should have granted its motions to dismiss plaintiffs' actions as untimely. Newark's motions were based upon R. 4:69-6(a), which states that "[n]o action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to review, hearing, or relief claimed."

Insofar as plaintiffs' complaints challenged the constitutionality of a municipal ordinance, they were maintainable either as declaratory judgment actions, Bell v. Township of Stafford, 110 N.J. 384, 390-91, 541 A.2d 692 (1988), or as actions in lieu of prerogative writs, Hills Dev. Co. v. Township of Bernards, 103 N.J. 1, 44-45, 510 A.2d 621 (1986). If viewed as declaratory judgment actions, plaintiffs' constitutional claims would not be subject to the time limit on actions in lieu of prerogative writs imposed by R. 4:69-6(a). Moreover, the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62, does not contain a statute of limitations, and a declaratory judgment action challenging the constitutionality of a legislative enactment is not ordinarily subject to a defense of laches. Cf. Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 14-15, 161 A.2d 705 (1960). If viewed as actions in lieu of prerogative writs, plaintiffs' constitutional claims would be subject to the forty-five day limitations period of R. 4:69-6(a), but this limitation may be enlarged under R. 4:69-6(c) "where it is manifest that the interest of justice so requires." Actions in lieu of prerogative writs challenging the constitutionality of municipal ordinances have long been afforded the benefit of such enlargements of time. See Brunetti v. Borough of New Milford, 68 N.J. 576, 585-88, 350 A.2d 19 (1975). Therefore, the trial court properly denied Newark's motions to dismiss the parts of plaintiffs' complaints challenging the constitutionality of its current garbage collection ordinance.

However, plaintiffs' claims that Newark breached the tax abatement agreements, which rely upon familiar principles of contract law and seek specific enforcement and money damages, are not maintainable as actions in lieu of prerogative writs. Cf. O'Neil v. Township of Washington, 193 N.J.Super. 481, 486, 475 A.2d 55 (App.Div.1984) (actions seeking money damages are not cognizable as actions in lieu of prerogative writs). Moreover, plaintiffs' breach of contract claims are not maintainable under the Declaratory Judgment Act. When "the parties have reached a stage where rights [under a contract] have been breached[,] [r]elief under the Declaratory Judgments Act is ... unavailable." Rego Indus. Inc. v. American Modern Metals Corp., 91 N.J.Super. 447, 453, 221 A.2d 35 (App.Div.1966). Consequently, plaintiffs' claims that Newark breached the tax abatement agreements are not subject to the time limitation of R. 4:69-6(a), but rather the general limitations period applicable to contract actions contained in N.J.S.A. 2A:14-1.

Although Newark asserts in its appellate brief that it "also moved to dismiss based on the six year statute of limitations applicable to contract actions, N.J.S.A. 2A:14-1," the trial record does not support this assertion. Newark's motions to dismiss were expressly based upon R. 4:69-6; they did not refer to any other limitations provision. Therefore, Newark is barred from raising this defense for the first time on its appeal to this court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234, 300 A.2d 142 (1973); cf. Williams v. Bell Tel. Lab., Inc., 132 N.J. 109, 118-20, 623 A.2d 234 (1993).

Moreover, even if Newark had raised this limitations defense in a timely manner, Newark's alleged failure to perform its obligations under the tax abatement agreements could be considered a series of continuing breaches for which plaintiffs could maintain an action for any breach occurring within six years of the filing of the complaint, even if more than six years had elapsed since Newark's initial breach. See Barker v. Jeremiasen, 676 P.2d 1259, 1261-62 (Colo.Ct.App.1984) (statute of limitations ran anew with each violation of lease's restrictive covenant); Singer Co. v. Baltimore Gas & Elect. Co., 79 Md.App. 461, 558 A.2d 419, 425-26 (1989) (statute of limitations applied to each failure to provide contracted for electrical services); see also Masonic Temple Ass'n v. Kistner, 11 N.J.Misc. 761, 762, 168 A. 43 (Sup.Ct.1933).

Therefore, we a...