On basically a weekly basis, clients ask me whether “per day” penalties will be enforced in myriad real estate, environmental and other municipal scenarios. Yesterday, in the Malachite case (Docket No. A-0943-22), the Appellate Division took up an important issue “sua sponte” and ruled that the “each day” penalty provision in Deptford’s ordinance ($1,250/day) is unenforceable because it is contrary to N.J.S.A. 40:49-5, “Penalties for violations of municipal ordinances”. The Appellate Division reasoned that a municipality can ‘impose an additional fine upon a person for a repeated violation of any municipal ordinance’, as compared to a situation where a municipality attempts to repeatedly or continuously fine a person each day for the continuing violation. Stay tuned.