A New Jersey appeals court has ruled that a municipality exceeded its authority when it imposed fines of more than $1 million for maintenance code violations accruing on a daily basis.
The Township of Deptford sought to fine the owner of the Deptford Commons shopping center $1,013,750 for failure to remove garbage from the premises for 811 days, at a rate of $1,250 per day.
But a state law caps additional fines for repeated violations of a municipal ordinance at $2,000, the appeals court ruled.
The property owner, Malachite Group Ltd., appealed after Deptford imposed its daily fine from Nov. 7, 2019, to Feb. 11, 2021.
A municipal court judge cut the daily fine to $500, which equates to $405,500 over the violation period, and Malachite’s bid for a trial de novo in the Law Division was denied.
Before the Appellate Division panel of Judge Thomas W. Sumners Jr. and Lisa Rose, Malachite contended that the municipal code’s ”each day” fine provision should be suspended or the fines should be dramatically reduced as the “continuous” penalty is “excessive,” “unnecessary,” “arbitrary,” and “capricious.”
The shopping center owner also contended the municipal court’s affirmance of the “every day” penalty was an abuse of discretion, considering the court’s failure to treat the separate offenses as a single violation.
Sumners and Rose said Deptford’s application of the municipal code is not authorized by its legislative mandate.
Deptford’s authority to enact an “every day” penalty under the municipal code was not raised before the municipal court, but the appellate panel raised it sua sponte because an examination of the statutory basis for the municipal code provision was necessary to resolve the appeal, the panel said.
While a municipality can impose an additional fine upon a person for a repeated violation of any municipal ordinance, it does not allow a municipality to repeatedly or continuously fine a person for each day a violation continues, under N.J.S.A. 40:49-5, the panel wrote.
NJ Superior Court Judge Lisa Rose. Courtesy photoDeptford was authorized under N.J.S.A. 40:49-5 to adopt its municipal code and to impose an “additional fine” for “a repeated violation of any municipal ordinance” that may not exceed the statutory maximum of $2,000 or be less than the statutory minimum of $100, Sumners and Rose wrote.
Deptford’s municipal code imposes a fine of $1,250 for “each day that a violation continues,” and provides that each day the violation continues to exist is “deemed a separate offense.”
“Accordingly, the township was authorized to impose an additional fine for repeated violations, and the $1,250 per day fine for a repeated violation initially sought by the township was within the statutory $100 minimum and $2,000 maximum range. But there is no statutory basis for imposing a successive ‘each day’ fine for the failure to cure the violation,” the appeals court said.
The appeals court emphasized that the ongoing accumulation of garbage at the defendant’s property could furnish a basis for separate charges for which separate punishments may be imposed.
The panel cited State v. Elmwood Terrace, a 1964 Appellate Division ruling, which said a driver who operated his car at an excessive rate of speed through a red light while intoxicated “might furnish the basis for separate charges against him for which separate punishments might be imposed.”
The appeals court remanded the case to the Law Division for resentencing.
John Gaetan DeSimone of DeSimone Law Offices in Woodbury, representing Malachite, said he was pleased with the ruling but declined to comment. Charles Anthony Fiore, of the Charles Fiore Law Offices in Williamstown, representing Deptford, did not respond to a request for comment.
