Inganamort v. Borough of Fort Lee

Decision Date02 March 1977
Citation371 A.2d 34,72 N.J. 412
PartiesJohn F. INGANAMORT, et al., Plaintiffs-Respondents, v. BOROUGH OF FORT LEE, et al., Defendants-Appellants.
CourtNew Jersey Supreme Court

Armand Pohan, Newark, for defendants-appellants (Fuchs & Altschul, Jersey City, attorneys for appellant Rent Leveling Bd. of Borough of Fort Lee and McCarter & English, Newark, attorneys for appellants Borough of Fort Lee and Mayor and Council of Borough of Fort Lee; Armand Pohan, Newark, of counsel; William T. Reilly, Newark, on the joint brief).

Richard F. Aronsohn, Hackensack, for respondents John F. Inganamort, Michael J. Inganamort, LaSalle Contracting Corp., a joint venture trading as Mediterranean Towers, Alexander Summer, Trustee under Linwood Buildings No. 1 through 13, Robert Slater and Bruce Slater, a partnership trading as Slater Associates, Harry B. Helmsley and Alvin Schwartz, general partners of a limited partnership trading as Horizon House Associates, and Fort Lee Taxpayers and Property Owners Committee (Aronsohn, Kahn & Springstead, attorneys; Richard F. Aronsohn, Hackensack, of counsel; Robert J. Schmitt, Jr., Tenafly, on the brief).

Francis B. Rusch, Teaneck, for respondents Helmsley-Spear, Inc. and Alexander Summer, Inc.

The opinion of the court was delivered by

PASHMAN, J.

This case presents a novel issue in this Court: whether a municipal ordinance may be extended by resolution of the community's governing body where this procedure is explicitly called for in the enactment.

The challenges in this case involve Fort Lee ordinances No. 72--1 and No. 74--26. The former was enacted by the Borough of Fort Lee in 1972 and is entitled 'An Ordinance to Regulate, Control and Stabilize Rents and Create a Rent Control Board within the Borough of Fort Lee.' Although various other procedural challenges to this ordinance, and to the constitutionality of rent control generally, have been previously decided, the instant litigation presents for the first time the validity of efforts to extend the life of the ordinance by resolution.1 As originally, adopted, the ordinance provided that it would be effective for three years. Two weeks after its initial enactment, however, an amendment was passed reducing the term of the ordinance to one year and providing that the governing body of the borough could extend its life on a yearly basis by resolution. The amended provision, section 20, states:

This ordinance is to take effect immediately upon passage and publication as required by law, and shall remain in full force and effect for a period not to exceed one year from said effective date and shall automatically terminate, cease and be of no force and effect unless specifically extended by the Governing Body by Resolution extending said term from year to year. Any such extension action must be taken by the Governing Body prior to the first anniversary date of this ordinance and each anniversary date thereafter.

In accordance with the terms of the ordinance, the governing body of the municipality unanimously passed a resolution in January 1973, prior to the expiration date of the ordinance, extending its duration for another year commencing February 2, 1973. The governing body again acted unanimously the following year, passing a second resolution extending the life of the ordinance for an additional year commencing on February 2, 1974.

Plaintiffs in this case are landlords and managing agents of multi-family dwellings in Fort Lee. They argue that an ordinance may not be extended by resolution, whether or not the terms of the ordinance tolerate such a result. Assuming that section 20 is invalid, they argue that the ordinance expired by its terms at the expiration of the original one-year period. And because the amendatory ordinances purported to amend an expired ordinance, see Ante at 36 n. 1, they argue that subsequent ordinances had no effect on rent control in the municipality. The defendant borough, on the other hand, asserts that the delegation of authority, allowing the governing board to extend the ordinance by resolution, was not legislative in character, and therefore was valid. Alternatively, it argues that the Court should give effect to the decision of the governing body to extend the ordinance either under a theory of ratification or that the original ordinance be incorporated into amendatory ordinances.

The trial court granted plaintiff's motion for summary judgment, holding that the governing body could not extend the ordinance by a resolution and that as a result the ordinance expired after the original one-year term. Additionally, it found that the amendatory ordinances failed to revive the expired enactment. We granted certification on our own motion while the matter was pending unheard in the Appellate Division. 69 N.J. 399, 354 A.2d 326 (1976).

We find that the trial court's decision on the validity of section 20 of Ordinance No. 72--1 was correct, but that the invalid section may be severed from the remainder of the provision. Consequently, we hold that the ordinance remained in effect until specifically repealed or superseded by another enactment.

I

We first consider plaintiff's contention that a municipal ordinance may not be extended by a resolution.

It is settled that a municipality is a creature of the Legislature, and as such is a government of enumerated powers which can act only by delegated authority. Giannone v. Carlin, 20 N.J. 511, 517, 120 A.2d 449 (1956); Gilbert & Sentinel Sales Corp. v. Town of Irvington, 20 N.J. 432, 436, 120 A.2d 114 (1956); N.J. Good Humor, Inc. v. Bd. of Comm'rs of Bradley Beach, 124 N.J.L. 162, 11 A.2d 113 (E. & A.1940); Markey v. City of Bayonne, 24 N.J.Super. 105, 93 A.2d 589 (App.Div.1953). While the power to fix rents has been held to be within the powers delegated to municipalities pursuant to N.J.S.A. 40:48--2, Inganamort v. Fort Lee, 62 N.J. 521, 303 A.2d 298 (1973); Hutton Pk. Gardens v. West Orange Town Council, 68 N.J. 543, 350 A.2d 1 (1975); Brunetti v. Borough of New Milford, 68 N.J. 576, 350 A.2d 19 (1975); Troy Hills Village v. Parsippany-Troy Hills Tp. Council, 68 N.J. 604, 350 A.2d 34 (1975), this grant of legislative authority does not release municipalities from their obligation to follow certain procedures. Accordingly, this Court has held that '(a)ny exercise of a delegated power by a municipality in a manner not within the purview of the governing statute is capricious and Ultra vires of the delegated powers.' Giannone v. Carlin, supra, 20 N.J. at 517, 120 A.2d at 452; Oliva v. City of Garfield, 1 N.J. 184, 190, 62 A.2d 673 (1948); Hasbrouck Heights Hospital Ass'n v. Borough of Hasbrouck Heights, 15 N.J. 447, 455, 105 A.2d 521 (1954).

A municipality may exercise its delegated powers through either an ordinance or a resolution. The general distinction between the two types of enactments has been described as follows An ordinance is distinctively a legislative act; a resolution, generally speaking, is simply an expression of opinion or mind concerning some particular item of business coming within the legislative body's official cognizance, ordinarily ministerial in character and relating to the administrative business of the municipality. Thus, it may be stated broadly that all acts that are done by a municipal corporation in its ministerial capacity and for a temporary purpose may be put in the form of resolutions, and that matters upon which the municipal corporation desires to legislate must be put in the form of ordinances. (McQuillin, Municipal Corporations (3 ed. 1973) § 14.02 at 43--45; footnotes omitted).

See Albigese v. City of Jersey City, 129 N.J.Super. 567, 569, 324 A.2d 577, 578 (App.Div.1974) ('the term 'ordinance' encompasses matters legislative in character, while the term 'resolution' refers to matters administrative in nature.'); Woodhull v. Manahan, 85 N.J.Super. 157, 204 A.2d 212 (App.Div.1964), aff'd 43 N.J. 445, 205 A.2d 441 (1964); O'Keefe v. Dunn, 89 N.J.Super. 383, 388, 215 A.2d 66 (Law Div.1965), aff'd o.b. 47 N.J. 210, 219 A.2d 872 (1966); 1 Antieau, Municipal Corporation Law, § 4.15 at 4--30 (1975) municipal enactments must be in the form of ordinances 'when 'legislative' in nature, that is, when they announce a rule of continuing effect applicable widely throughout the municipality and usually imposing controls upon the liberties, properties or business of citizens').

While there is no statute specifically authorizing a municipality to pass rent control ordinances, such power has been held to stem from the general grant of police power in N.J.S.A. 40:48--2. See Inganamort v. Bor. of Fort Lee, 62 N.J. 521, 303 A.2d 298 (1973). In order to determine whether an ordinance or a resolution is necessary to exercise the delegated power in the instant case, the enabling statute, N.J.S.A. 40:48--2, must be considered. The statute provides:

Other Necessary and Proper Ordinances--Any municipality may make, amend, repeal and enforce such other ordinances, regulations, rules and by-laws not contrary to the laws of this state or of the United States, as it may deem necessary and proper for the good government, order and protection of persons and property, and for the preservation of the public health, safety and welfare of the municipality and its inhabitants, and as may be necessary to carry into effect the powers and duties conferred and imposed by this subtitle, or by any law.

The terms used in the section--'ordinances, regulations, rules and by-laws'--have been held to be synonymous, requiring enactment by ordinance, as opposed to merely by a resolution. Eckerson v. Englewood, 82 N.J.L. 298, 301, 81 A. 1070 (Sup.Ct.1912); Levy v. Elizabeth, 81 N.J.L. 643, 647, 80 A. 498 (E. & A. 1911); McQuillin, supra, § 15.04 at 49.

Although there may be occasions where a delegated power may be exercised by a resolution in the absence of any indication in the statute otherwise, Fraser v....

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