When you purchase your property with all its hopes and dreams, I would venture to say that local governmental maintenance ordinance(s) were not a pressing concern. There seems, however, to be a trend in New Jersey in which property owners are facing more and more municipal property maintenance violations. Our firm has witnessed an increase in municipal code enforcement representations, ranging from failure to protect your property from dumping, failure to repair property after storms, improper tree removal, unauthorized expansion of land use(s) and the list goes on. Cynics may believe that the poor economy has caused building departments to seek alternate sources of income, but the reality is that a violation of local property maintenance code ordinances cannot be ignored.
Maintenance Codes are Valid
It is well established that local government has the right to enforce its maintenance codes for the betterment of public health, safety and welfare within its community. If for example, someone improperly dumps debris on your vacant land, you will probably have to pay to have the debris removed despite your “clean hands.” The majority of municipalities are merely seeking compliance with maintenance ordinances with reasonable administrative fines, but there are those occasions when property owners are facing hefty fines and penalties. Property owners are further perplexed when they have to pay an attorney and possible expert fees to defend themselves.
Limits on Penalties
The New Jersey statutory law has recognized some limitations on unbridled municipal penalty provisions. More specifically, New Jersey Statutory Authority does limit excessive fines, but those same statutes can permit incarceration in the most egregious cases.
New Jersey court determinations have reflected that civil municipal penalty provisions cannot be arbitrary, capricious or excessive. A 1992 New Jersey Appellate Court case, found that when a penalty provision is invalid, the underlying ordinance cannot be enforced and therefore the charges must be dismissed. New Jersey Courts have further stated that when a penalty provision is wholly invalid, it cannot support an otherwise appropriate sentence.
Civil penalty cases have also arisen with regard to local shade tree commissions. Shade tree statutes reflect that the shade tree commission cannot impose a fine in an amount exceeding $200 per violation. The logic is that the fine cannot be a “tax” to offset unrelated municipal administrative expenses. The fines require a nexus to the municipality enforcement costs and statutory intent to deter such activity.
In sum, although municipalities can impose property maintenance penalties in the sum of thousands of dollars, those fines must be rationally related and not contradict the underlying municipal ordinance(s) enabling powers. When one finds him/herself confronted by a municipal property maintenance code ordinance violation and its daunting penalties, the cost of the fighting must be fully weighed with the reality of merely complying with the Ordinance. Further, the ability to plead guilty with the condition of “civil reservation,” such that the guilty municipal court plea “cannot” be used in any subsequent “civil” damage litigation matter, does provide some consoling measure. Thus, it may be easier to pay the $200 fine with the condition that it not be used in any subsequent civil action, versus the uncertainty and costs of a prolonged litigation. Moreover, there is a strong likelihood that some level of ordinance violation fine will be found by the Municipal Judge who may be hesitant to look beyond the four (4) corners of its’ governmental ordinance(s), based upon a general Constitutional or Civil Rights defense.
A Municipal Judge, who is appointed by the Mayor and Council, is hard-pressed to disregard local ordinances and their stated penalties because you believe the ordinance is unfair. To fight City Hall requires a rational and level headed analysis, especially when you feel that you did nothing wrong.