Bell v. Bass River Tp.

• Decision Date: 06 June 1984
• Citation: Bell v. Bass River Tp., 482 A.2d 208, 196 N.J.Super. 304 (N.J. Super. 1984)
• Parties: Wesley K. BELL, t/a Wes Outdoor Adv. Co., Plaintiff, v. The TOWNSHIP OF BASS RIVER, a Municipal Corporation in the County of Burlington, and the Construction Code Official and/or Building Inspector of the Township of Bass River, Defendants.
• Court: New Jersey Superior Court

Page 304

196 N.J.Super. 304

482 A.2d 208

Wesley K. BELL, t/a Wes Outdoor Adv. Co., Plaintiff, v. The TOWNSHIP OF BASS RIVER, a Municipal Corporation in the County of Burlington, and the Construction Code Official and/or Building Inspector of the Township of Bass River, Defendants.

Superior Court of New Jersey, Law Division Burlington County.

Decided June 6, 1984.

Jan M. Schlesinger, Mount Holly, for plaintiff (Schlesinger, Schlosser, Foy & Harrington, Mount Holly, attorneys).

James Den Uyl, Clifton, for defendants (Shackleton, Hazeltine & Dasti, Atlantic City, attorneys).

[482 A.2d 210] OPINION

HAINES, A.J.S.C.

On July 14, 1980, plaintiff Bell obtained a building permit from the defendant Township of Bass River ["Township"] for the renovation of a billboard claimed by him to constitute a non-conforming use under the local zoning ordinance. On July 18, 1980 the Township, having decided the use was not non-conforming, revoked the permit. In March 1981, Bell requested its reinstatement and thereafter, although the reinstatement request

had not been granted, commenced construction which he discontinued when a stop work order was posted by the construction official. On April 26, 1983, Bell appealed the revocation of the permit to the Burlington County Construction Board of Appeals. ¹ The Board adopted a resolution on July 15, 1983 denying relief. Bell then commenced the present action seeking a review and reversal of the Board's decision and a judgment declaring the billboard to be a non-conforming use.

The issues address the State Uniform Construction Code Act, N.J.S.A. 52:27D-119 et seq., and regulations issued thereunder. They are of novel impression, involve only questions of law and are disposed of in this opinion which responds to cross-motions for summary judgment.

A. The Right to Appeal to the Superior Court

N.J.S.A. 52:27D-127b provides:

Failure by the board [of appeals] to hear an appeal and render and file a decision thereon within the time limits prescribed in this subsection shall be deemed a denial of the appeal for purposes of a complaint, application or appeal to a court of competent jurisdiction.

The statutes do not provide for an appeal to a court in the event a board does hear and decide an appeal. Regulations adopted by the Commissioner of Community Affairs, however, expressly so provide. N.J.A.C. 5:23-2.37(a)(7) states:

Any party, including the enforcing agency, may within 30 days, appeal from the decision of the board to a court of competent jurisdiction.

May these regulations be adopted absent express statutory authority? I conclude that they may.

N.J.S.A. 52:27D-124 provides in pertinent part as follows:

The commissioner shall have all the powers necessary or convenient to effectuate the purposes of this act, including, but not limited to, the following powers in addition to all others granted by this act:

a. To adopt, amend and repeal, after consultation with the code advisory board, rules: (1) relating to the administration and enforcement of this act ....

* * *

f. To make, establish and amend, after consultation with the code advisory board, such rules as may be necessary, desirable or proper to carry out his powers and duties under this act.

It is apparent that these provisions confer broad regulatory authority upon the commissioner. In New Jersey State Plumbing Inspectors' Ass'n v. Sheehan, 163 N.J.Super. 398, 394 A.2d 1244 (App.Div.1978), the court considered the adoption of a conflict of interest provision by the Commissioner of Community Affairs. It held that the regulation was properly adopted under the broad rule-making power granted by the act:

Our reading of the regulation reveals no merit to the argument that the regulation is invalid. Given the underlying purposes of the act and its effective breadth, the regulation is reasonably designed to aid in the achievement of those purposes by helping to ensure fair and honest administration and enforcement of the Code. [Id. at 403, 394 A.2d 1244.]

Here, provision by regulation for appeals from decisions of the county or municipal boards of appeal rounds out the statutory scheme of enforcement and fair play. It furthers the purposes of the act and is clearly within the broad statutory grant of power to the Commissioner.

Aside from this, the statute must be read as authorizing the present application. Statutes are to be read sensibly for the purpose of carrying out legislative intention. Schierstead v. Brigantine, 29 N.J. 220, 230, 148 A.2d 591 (1959). The statute's failure to authorize an appeal from a board decision, while expressly authorizing that procedure when there is a failure to decide, is an oversight permissibly remedied by the court in accordance with the probable legislative intention. Wollen v. Boro. of Fort Lee, 27 N.J. 408, 142 A.2d 881 (1958). The statute must be read as authorizing an appeal under both circumstances.

In any event, statutory authority is not necessary for this proceeding. It may be treated, though it is not so designated, as an action in lieu of prerogative writs. It replaces the old writ of certiorari, which permitted review of judicial and administrative actions. McKenna v. N.J. Hwy. Auth., 19 N.J. 270, 274-275, 116 A.2d 29 (1955). That proceeding is available here.

B. The Jurisdiction of the Law Division of the Superior Court

The Township argues that the Department of Community Affairs is a branch of the state government, that the Construction Board of Appeals is organized under the Department, and that therefore the Board of Appeals is a state agency. Since appeals from state agencies must be heard by the Appellate Division, R. 2:2-3(a)(2), it is argued that this court has no jurisdiction. The contrary is true. The correct rule is set forth in Baldwin Construction Co. v. Essex Cty. Bd. of Taxation, 27 N.J.Super. 240, 99 A.2d 214 (App.Div.1953), aff'd 16 N.J. 329, 108 A.2d 598 (1954), which involved an action in the Law Division seeking review of a decision of a county board of taxation. The Appellate Division said:

The appellant argues that a county board of taxation is a state agency and hence the plaintiffs ought to have proceeded by appeal to the Appellate Division. Undoubtedly the county board of taxation is an agency of the state. So is a local board of health. And a local board of education. Yet we are satisfied that the present case was rightly brought in the Law Division. In the allocation of business between the Law Division and the Appellate Division, proceedings relating to an administrative body with authority confined to a single locality, in this case a county, should be brought in the Law Division even though the defendant may be classified for most purposes as an agency of the State. Baldwin Construction Co., supra, 27 N.J.Super. at 242, 99 A.2d 214.

In Mathesius v. Mercer Cty. Improvement Auth., 177 N.J.Super. 626, 427 A.2d 608 (App.Div.1981), the court said: "Actions in lieu of prerogative writs against state agencies with only local jurisdiction may be brought in the Law Division." [at 634] See also, Pfleger v. N.J. State Hwy. Dept., 104 N.J.Super. 289, 291, 250 A.2d 16 (App.Div.1968).

The Burlington County Construction Board of Appeals is an agency with "only local jurisdiction." Its actions are reviewable in the Law Division.

C. The Scope and Standard of Review

(1) By the Board of Appeals

N.J.A.C. 5:23-2.35 describes the appellate rights of an applicant who has been denied a construction permit by a construction official and the procedures to be followed. An application must be filed with the Board of Appeals setting forth the appellant's position. It must refer to the specific sections of the regulations involved, the extent and nature of appellant's reliance upon them; other appropriate data and information may be appended. When an appeal is filed the construction official must make available to the Board of Appeals "the full record of the application below, which shall include a detailed explanation of reasons for the denial of the appellant's request."

N.J.A.C. 5:23-2.36 establishes the Board's procedures. Hearings must be open to the public; the applicant must be given an opportunity to address the board, present testimony, and examine and cross-examine witnesses consistent with reasonable rules of procedure and due process. Hearings are to be recorded and transcripts made available upon request at the expense of the requesting party.

N.J.A.C. 5:23-2.37 establishes the Board's technique for decision. It must hear appeals and render decisions setting forth a statement of reasons to support conclusions reached. Decisions must be available for public inspection. They may affirm, reverse or modify the action below or remand the matter for further proceedings.

It is apparent from these provisions that the Board of Appeals must provide a de novo hearing to appellants, which includes consideration of the record below as supplemented by evidence presented at the Board's hearing. The standard to be applied by the Board in reaching a decision is set forth in N.J.A.C. 5:23-2.37(b)2:

Where an enforcing agency has denied application for a construction permit, the board may reverse or modify such decision upon a finding that such was arbitrary, or based upon an erroneous interpretation of the regulations.

(2) By the Court

No statute or regulation contains any provision concerning the scope of proceedings in this court. The usual rule, applicable to most prerogative writ actions, should therefore be applied: the court is to be confined to the record below, remanding the matter for supplementation if that record is insufficient. Romanowski v. Brick Tp., 185 N.J.Super. 197, 203, 447 A.2d 1352 (Law Div.1982). See also, Kotlarich v. Ramsey, 51 N.J.Super. 520, 144 A.2d 279 (App.Div.1958); Bergsma v. Kearny, 24 N.J.Super. 43, 48, 93 A.2d 626 (App.Div.1952); Yellow Cab Corp. v. Passaic, 124 N.J.Super. 570, 583, 308 A.2d 60 (Law Div.1973).

Neither the...