Cox v. Wall Tp.

• Decision Date: 20 February 1956
• Docket Number: No. A--21,A--21
• Citation: 120 A.2d 779,39 N.J.Super. 243
• Parties: John P. COX and Elizabeth M. Cox, his wife, and Everett H. Thorne, Plaintiffs-Respondents, v. TOWNSHIP OF WALL, a municipal corporation of the State of New Jersey, and William Strohm, Inspector of Buildings, Defendants-Appellants. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 243

39 N.J.Super. 243

120 A.2d 779

John P. COX and Elizabeth M. Cox, his wife, and Everett H Thorne, Plaintiffs-Respondents, v. TOWNSHIP OF WALL, a municipal corporation of the State of New Jersey, and William Strohm, Inspector of Buildings, Defendants-Appellants.

No. A--21.

Superior Court of New Jersey Appellate Division.

Argued Jan. 30, 1956.

Decided Feb. 20, 1956.

William C. Nowels, Asbury Park, for defendants-appellants.

William R. Blair, Jr., Red Bank, for plaintiffs-respondents (Parsons, Labrecque, Canzona & Combs, Red Bank, attorneys).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

The Superior Court, Law Division, declared the building code of the defendant Wall Township to be invalid insofar as it prohibited materials and methods of construction proposed to be used in a certain prefabricated house herein referred to. The court also ordered the defendant building inspector of the township to issue a building permit for the erection of the house.

Defendants appeal, claiming, first, that the provisions of the building code under attack here are not arbitrary and hence should not have been invalidated; second, that certain exhibits were improperly admitted into evidence; and third, that plaintiffs have not the standing to maintain this action.

The prefabricated house proposed to be erected here is a so-called Gunnison Home, modified in certain respects, a type of house manufactured by a subsidiary of the United States Steel Corporation. The walls, ceilings and roof of the home consist of an assemblage of prefabricated plywood panels, each panel being glued together integrally to form what is designated as a stressed-skin unit. Instead of the usual rafter roof, trussing is employed between the roof and the ceiling. We will not encumber this opinion with the particular objections raised by the defendants, nor with the proofs put in by the plaintiffs to meet them. Suffice it to say generally that the trial court found, referring to these houses:

'The modes of construction and types of materials used in the aforesaid dwelling houses are permitted under the 'Standard Building Code of New Jersey' prepared pursuant to Laws of 1946, Chapter 120 (N.J.S.A. 52:27C--54 et seq.), and promulgated by the Department of Conservation and Economic Development of the State of New Jersey and are permitted under the 'New Jersey Code of Minimum Construction Requirements for One and Two Family Dwellings' 1953 revised reprint, promulgated by the Department of Conservation and Economic Development of the State of New Jersey. Said modes of construction and types of materials have received the approval of the Federal Housing Authority and meet the 'Commercial Standard CS125--47' a recorded voluntary standard of the trade, promulgated by the United States Department of Commerce.

'Test of said modes of construction and types of materials conducted by the Institute of Industrial Research affiliated with the University of Louisville, Kentucky, have established that said types of construction comply with the maximum requirements established by building codes throughout the United States with a safety factor of two to two and one-half times said maximum requirements.'

The evidence supporting the paragraph last quoted is rather general and a little vague. However defendants do not challenge these findings.

N.J.S.A. 40:48--1, par. 13, authorizes the adoption of a building code. But there must be a reasonable relation between the regulations provided for therein and the safety, health or other public interest designed to be served; otherwise there is an unwarranted intrusion on the fundamental prerogative of an owner of property to do with his own as he wishes. Delawanna Iron & Metal Co. v. Albrecht, 9 N.J. 424, 429, 88 A.2d 616 (1952). The regulations are presumed to be reasonable in that regard, Mt. Zion Baptist Church of Lodi Tp., Bergan County v. Melillo, 3 N.J. 61, 65, 68 A.2d 741 (1949); and any person attacking them will not prevail unless he clearly establishes that they are not so. State v. Mundet Cork Corp., 8 N.J. 359, 370, 86 A.2d 1 (1952).

The proofs here revolved chiefly about the factor of safety--that is, the strength of the materials and of the modes of construction employed in the Gunnison Home. We agree with the trial court that it was demonstrated at the trial with clarity that the materials and modes so employed, though they do not comply with the building code of Wall Township, are nevertheless as adequate as those permitted thereby.

Defendants say, assuming all that to be so, still the courts should not invalidate building regulations governing certain structural devices merely because other devices are equally safe. But the law does not resolve the matter in that fashion. It may declare (as was declared by the trial court here) that the regulations will stand, except to the extent that they prohibit the latter devices; to that extent, they are invalidated.

For a case holding building regulations invalid where they proscribed certain materials which were as adequate as those permitted, see McCray v. City of Chicago, 292 Ill. 60, 126 N.E. 557 (Sup.Ct.1920). Cf. People ex rel. Brewer v. Kelly, 295 Ill.App. 156, 14 N.E.2d 694 (1938); State ex rel. Snyder v. Yoter, 65 Ohio App. 492, 30 N.E.2d 558 (1939), dealing with (we are told by plaintiffs) a Gunnison Home. But cf. Levitt & Sons, Inc., v. Young, 189 Misc. 922, 74 N.Y.S.2d 120 (Sup.Ct.1947), where the court refused to direct the issuance of a building permit which would allow 5/16-inch plywood to be used in place of conventional sheathing (it will be observed that the code here permitted substitution of materials); City of Odessa v. Halbrook, 103 S.W.2d 223 (Tex.Civ.App.1937).

Defendants contend that with only a few minor changes effected at no great cost, the Gunnison Home could be made to conform to the building code. But the defendants do not furnish us with any detail on the point; and the modes of construction employed in that home are so much at variance with those contemplated by the code that there seems to be little or no basis for the contention.

Defendants contend further that any code which does not allow for new materials as they come upon the market, will face the difficulties presented here. Besides, they say, under any such code a small municipality, which now engages a local carpenter as a building inspector, would be required to maintain a corps of experts to test such materials. This would be a matter of some seriousness, were this the sole means of approving new materials. However we are not persuaded that such would be the case. In that regard reference might be made, in passing, to provisions such as those found in the model code for one- and two-family dwellings, which was prepared by the New Jersey State Department of Conservation and Economic Development, Division of Planning and Development, in 1946. In the foreword to that code, it is said:

'It is intended as a building code which can be understood by the layman * * *. In order to keep the text of the code as simple as possible, it was deemed desirable to refer to the findings of various research groups who have established experience and data and are generally recognized as a source of authority. * * *

'* * * the committee kept in mind the fact that new materials would come into the market from time to time, and endeavored to arrange the code in such manner that, where these materials have been approved for safe and sound...