Division of Health, Dept. of Health & Welfare v. Rogers
| Decision Date | 12 January 1981 |
| Citation | 432 A.2d 135,179 N.J.Super. 389 |
| Parties | DIV. OF HEALTH, DEPARTMENT OF HEALTH & WELFARE and the City of Newark, a municipal corporation of the State of New Jersey on behalf of the State of New Jersey, Plaintiffs, v. Joseph ROGERS, Defendant. |
| Court | New Jersey Superior Court |
Frederick D. Miceli, Asst. Corp. Counsel, South Orange, for plaintiffs (Salvatore Perillo, Atlantic City, attorney).
Gary J. Cucchiara, Rutherford, for defendant (Walter R. Cohn, South Orange, attorney).
The major question presented by this case is whether the City of Newark, a municipal corporation of New Jersey, which has not established a separate entity as a local board of health pursuant to N.J.S.A. 26:3-1 et seq. (city), may compel the owner of a fire-gutted, uninhabited but ostensibly secure residential structure to raze said structure at the owner's expense by means of an action in the Chancery Division for a mandatory injunction, based upon its alleged common law right to abate a public nuisance or its alleged rights under N.J.S.A. 26:3-56. The aforementioned statute provides:
The local board, instead of proceeding in a summary way to abate a nuisance hazardous to the public health, may institute an action in the Superior Court, in the name of the State, on relation of the board, for injunctive relief to prohibit the continuance of such nuisance.
Defendant Joseph Rogers asserted that the structure did not constitute a nuisance within the meaning of the health statutes; hence, no injunction to demolish under the health statutes was necessary and could not be properly granted.
The basic pleadings and facts, which are undisputed, may be simply summarized.
While the city was proceeding against Rogers in the municipal court for alleged code violations, the city commenced this action by verified complaint supported by affidavits of personnel from the Code Enforcement Agency drawn from the Building Inspection Department, the Fire Prevention Bureau, the Electrical Code Department, as well as adjoining real property owners. The subject property is located diagonally across from an elementary school, had been the subject of several fires, and the owner had been cited a number of times for code violations. Allegedly the roof was open to the elements, the structure was open to intrusion, particularly by children, the stairs and supporting members were weak, the fire stops were destroyed, the front porches were unsupported and in danger of collapse, and the premises were strewn with debris.
Because city relied upon its common law power to abate a public nuisance and the provisions of N.J.S.A. 26:3-56, it sued in two capacities. The significance of a suit ex rel. is that the party on whose relation the suit is brought is the agent or instrumentality of the named party, cf. State ex rel. Hillside Tp. Bd. of Health v. Mundet Cork Corp., 126 N.J.Eq. 100, 8 A.2d 105 (Ch.1939), aff'd 127 N.J.Eq. 61, 11 A.2d 260 (E. & A.1941). This suggests that the suit is one that the official or board must have initially been capable of instituting in his, her or its official capacity. In this matter the reference is to N.J.S.A. 26:1A-26 to 31.
The city has not established a local board of health as a separate entity apart from the local municipal government under N.J.S.A. 26:3-1, but relies upon its inherent powers to enforce applicable health laws. See Jones v. Buford, 132 N.J.Super. 209, 333 A.2d 279 (App.Div.1975), rev'd on other grounds 71 N.J. 433, 365 A.2d 1364 (1976).
The city had prima facie standing to assert the cause of action pleaded. However, the city sought an immediate ex parte order for the removal of debris, boarding up of the premises, as well as an order "immediately requiring defendant ... to have the building demolished in a safe and approved manner and to fill in all excavations in a workmanlike fashion."
There was no affidavit from the city establishing that conditions of disease, pollution, noxious fumes, poisonous gases or increase of vermin were attributable to the subject property. The described conditions appeared to fit within N.J.S.A. 40:48-2.5 et seq., the statute which authorizes a municipality to adopt an ordinance for buildings in that municipality which are unfit for human habitation or occupancy, without any support for a finding of imminent danger to life. The court denied any ex parte relief but fixed a short return date. See State ex rel. Pompton Lakes Bd. of Health v. E. I. DuPont de Nemours Powder Co., 79 N.J.Eq. 31, 80 A.2d 998 (Ch.1911).
Before the return date Rogers filed an affidavit in opposition and an answer and counterclaim. For purposes of this decision, there is no need to detail the allegations of the counterclaim set out in four broad sweeping counts alleging, among other matters, claims for compensatory relief due to city's failure to provide adequate police and fire protection. The merits of the counterclaim are dealt with on a separate motion for summary judgment by the city.
In the affidavit and answer Rogers set forth that he was a carpenter, purchased the subject property two years earlier as a burned-out structure, had not been able to obtain any fire insurance because the structure was unoccupied, had built a new roof and new back stairs, installed new windows, installed new sheet rock, caused certain new plumbing to be installed and did other work, at an aggregate value of $10,000 in his opinion. Thereafter, another fire occurred, as a result of which he lost most of the value of his work. He averred that he closed up door and window openings with plywood, cautioned the police to watch the place, personally inspected the place and from time to time replaced the plywood allegedly ripped off by vandals. The front porch overhangs were not structurally dangerous because the supporting members for the porch decks were nailed to the members of the main structure. There was no electric or gas service to the premises. He asserted that unless a stranger started a fire, or lightning hit and caused one, the structure did not pose a hazard. He also averred that he had inspected the property and again replaced missing plywood. He also averred that he had his counsel tender a deed to the property to the city after the recent fire and several months before the commencement of this action, but that the city had never responded.
On the return date the judge permitted the parties to supplement the affidavits by testimony from a limited number of witnesses. That testimony confirmed what had been set forth in the affidavits, but explained it in greater detail.
The evidence before the court was not sufficient to support a finding that the subject premises were a source of "offensive matter, foul or noxious gases or vapors, water in which mosquito larvae breed," or the source of any disease such that there was an imminent threat to the health of the community. See N.J.S.A. 26:3-46; N.J.S.A. 26:1A-26 and 27. The court declined to issue any injunctive relief but its finding was without prejudice to the city's right to enforce any local ordinances requiring that the building be kept secure.
Since all parties conceded that the building was burned out and in its present state was unfit for human habitation, the court inquired why the matter should not be dismissed and the city proceed under such ordinances as it might have comparable to those authorized by N.J.S.A. 40:48-2.5.
Counsel for the city requested the opportunity to submit further briefs on the right of the city to proceed under the health statutes. He represented that unless the city could compel the owners of burned-out structures to bear the cost of demolition, the funds available to the city for such work would mean, that little could be done to catch up with the problem. The request was granted because the question is of importance to other urban municipalities. Counsel for the city and counsel for Rogers have submitted supplemental briefs.
The Supreme Court in Alpine Borough v. Brewster, 7 N.J. 42, 80 A.2d 297 (1951), held that the use of an injunction to compel compliance with zoning ordinances was a civil remedy which the legislature could authorize without denying individual defendants rights guaranteed by the New Jersey Constitution. It was the creation of a civil remedy.
... (C)ommon nuisances are a species of offenses against "the public order and economical regimen of the state; being either the doing of a thing to the annoyance of all the king's subjects, or the neglecting to do a thing which the common good requires." Common nuisances "are such inconvenient or troublesome offenses as annoy the whole community in general, and not merely some particular person, and therefore are indictable only, and not actionable; as it would be unreasonable to multiply suits by giving every man a separate right of action for what damnifies him in common only with the rest of his fellow subjects." 3 Blackstone's Com. p. 216; 4 Ibid. p. 167. See State v. Rodgers, 91 N.J.L. 212 (102 A. 433) (E. & A. 1917); Board of Health of Weehawken Twp. v. New York Central Railroad Co., 4 N.J. 293 (72 A.2d 511) (1950). But the Legislature may enlarge the category. There can be no doubt of the power of the lawgiver to classify and define public nuisances, and thus to modify the common-law classification. (Id. 7 N.J. at 49-50, 80 A.2d 297)
A public nuisance is remediable on information by the attorney-general. The attorney-general may likewise proceed by a bill in equity; and if an individual has also sustained special damage over and above the public injury, he also may proceed by bill. Bispham's Principles of Equity (10th ed.) section 439. "In equity as in the law court, the attorney-general has the right, in cases where the property of the sovereign or the interest of the public are directly concerned, to institute suit, by what may be called civil information, for their protection."...
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