J. P. Properties, Inc. v. Macy

• Decision Date: 19 February 1982
• Citation: J. P. Properties, Inc. v. Macy, 444 A.2d 1131, 183 N.J.Super. 572 (N.J. Super. 1982)
• Parties: J. P. PROPERTIES, INC., Plaintiff, v. Edgar J. MACY, Jr., Construction Official of Township of Evesham, and Charles P. Balczun, Manager of the Township of Evesham, Defendants, v. The BUREAU OF CONSTRUCTION CODE ENFORCEMENT, DIVISION OF HOUSING, DEPARTMENT OF COMMUNITY AFFAIRS, State of New Jersey; Quill Corp., John Pasquarella, Mark Moore and Marlboro Home Builders, Inc., Defendants.
• Court: New Jersey Superior Court

Page 572

183 N.J.Super. 572

444 A.2d 1131

J. P. PROPERTIES, INC., Plaintiff, v. Edgar J. MACY, Jr., Construction Official of Township of

Evesham, and Charles P. Balczun, Manager of the

Township of Evesham, Defendants, v. The BUREAU OF CONSTRUCTION CODE ENFORCEMENT, DIVISION OF

HOUSING, DEPARTMENT OF COMMUNITY AFFAIRS, State of New

Jersey; Quill Corp., John Pasquarella, Mark Moore and

Marlboro Home Builders, Inc., Defendants.

Superior Court of New Jersey, Law Division Burlington County.

Decided Feb. 19, 1982.

John O. Sitzler, Palmyra, for J. P. Properties (Mathews, Sitzler, Weishoff & Sitzler, Palmyra, attorneys).

Stephen L. Ellsworth, Magnolia, for Edgar J. Macy, Jr.

William S. Ruggerio, Marlton, for Township of Evesham (Ruggerio & Freeman, Marlton, attorneys).

Steven Sacharow, Mount Laurel, for Charles P. Balczun (Wizmur & Sacharow, Mount Laurel, attorneys).

Peter E. Markens, Deputy Atty. Gen. for State of New Jersey (John J. Degnan, Atty. Gen. of New Jersey).

HAINES, A. J. S. C.

This is a declaratory judgment action. In question is the authority of the Evesham Township Manager, Charles P. Balczun, over the Township Construction Official, Edgar J. Macy, Jr. Balczun was appointed pursuant to the provision of the Faulkner Act, N.J.S.A. 40:69A-1 et seq., Macy under the Uniform Construction Code Act, N.J.S.A. 52:27D-119 et seq. The issues have not been addressed in any reported decision. The township manager claims authority over the construction official to:

(1) discipline him for repeated failures to enforce various provisions of the Uniform Construction Code;

(2) control the issuance of "prior approvals" and temporary certificates of occupancy;

(3) require him to provide regular reports of his activities;

(4) issue a stop-work order under the Soil Erosion and Sediment Control Act, N.J.S.A. 4:24-35.

Numerous disputes have arisen over these claims resulting in the institution of disciplinary proceedings against Macy by the manager. The proceedings have been restrained pending the receipt of this opinion.

The issues here have been submitted on the record; briefs and oral argument have been entertained. There are no factual disputes.

A. Code Enforcement Authority in General: Manager vs. Construction Official (1) The Authority of the Construction Official

Local enforcement of the Uniform Construction Code is entrusted by N.J.S.A. 52:27D-126(a) to the construction official (and any necessary subcode officials), who approves all construction permit applications, N.J.S.A. 52:27D-131, inspects all construction undertaken pursuant to a permit, N.J.S.A. 52:27D-132, and issues all certificates of occupancy, N.J.S.A. 52:27D-133. He may issue stop orders under N.J.S.A. 52:27D-132(c) when construction violations occur. His duties are spelled out in great detail in N.J.A.C. 5:23-4.3(c)4.

The Commissioner of Community Affairs determines the qualifications of the construction official, N.J.S.A. 52:27D-126(c), for which purpose rules have been adopted pursuant to N.J.S.A. 52:27D-124(a). They appear in N.J.A.C. 5:23-5.25. Appeals from decisions of the construction official may be taken to the local or county Construction Board of Appeals pursuant to N.J.S.A. 52:27D-127.

(2) The Authority of the Township Manager

Our statutes provide the manager with very broad authority over municipal affairs, officials and employees. He executes the laws of the township, appoints and removes officials and investigates municipal affairs. N.J.S.A. 40:69A-95. Nevertheless, it is clear that his authority over the construction official is limited.

The Uniform Construction Code was adopted, as its name implies, to provide uniformity, to supersede the maze of local building ordinances and to overcome ragged, discriminatory municipal enforcement practices. N.J.S.A. 52:27D-120; N.J. State Plumbing Inspectors v. Sheehan, 163 N.J.Super. 398, 401, 394 A.2d 1244 (App.Div.1978); Home Builders League v. Evesham Tp., 174 N.J.Super. 252, 257, 416 A.2d 81 (Law Div.1980), aff'd 182 N.J.Super. 357, 440 A.2d 1361 (App.Div.1981). Municipal control over Code enforcement, through anyone other than the construction official, would frustrate these legislative purposes. The State, by enacting the Code, clearly intended to preempt the field. Overlook Terrace v. West New York, 71 N.J. 451, 366 A.2d 321 (1976); Fair Lawn Ed. Ass'n v. Fair Lawn Bd. of Ed., 79 N.J. 574, 586, 401 A.2d 681 (1979). In doing so it reserved to itself, through the Department of Community Affairs, the right to discipline the construction official by suspending or revoking his license in the event, among other things, he violates the provisions of the Construction Code, is grossly negligent in the performance of his duties or fails, over a period of time, to maintain a minimally acceptable level of competence. N.J.A.C. 5:23-5.11(a). If the manager were permitted to discipline the construction official for any of the reasons set forth in these broad regulations, as claimed here, or to enforce any provisions of the Code, conflicting state and municipal policies would soon develop.

The consequence of the State's preemption of authority is to remove all jurisdiction of the township manager over matters of Code enforcement and construction official discipline based upon his official activities. This does not mean that the manager is entirely without authority. On the contrary, he shares control with the State, a dual arrangement which has been recognized in connection with tax assessors, whose quasi -judicial role and state commitments are not unlike those of construction officials. Horner v. Ocean Tp., 175 N.J.Super. 533, 539, 420 A.2d 1033 (App.Div.1980); Ream v. Kuhlman, 112 N.J.Super. 175, 180, 270 A.2d 712 (App.Div.1970). The manager may determine salary, assign office space, location and equipment, require reports of activities, investigate performance and generally fix terms and conditions of employment. He may impose discipline for failure to maintain office hours, failure to maintain records, failure to serve the public courteously, and for dishonesty, intoxication and other forms of misbehavior not related to Code enforcement. In appropriate cases, he may undertake proceedings to remove the construction official from office although such removal would not affect the official's license. These examples are not intended to be limiting. In defining the manager's authority, however, no intrusion upon any area preempted by the State may be permitted. When the manager believes that the construction official is not performing his Code obligations, the appropriate response is a request to the Department of Community Affairs to investigate and impose discipline under its regulations.

(3) Prior Approvals and Temporary Certificates of Occupancy

N.J.S.A. 52:27D-131 allows a construction permit to be issued only when the application, among other things, shows compliance with "the requirements of other applicable laws and ordinances." This is the so-called "prior approval" rule. It requires the construction official, before issuing a permit to build, to satisfy himself, for example, that any required zoning variance has been obtained, or that site plan and subdivision approvals have been granted. The township manager, pointing to the complexity of some of these approvals and to his intimate knowledge, by virtue of his office, of township concerns relating to land use, argues that he may control construction permits involving prior approvals. This is not so. The Code authorizes the construction official to decide whether all requirements for the issuance of a permit have been met by an applicant. Prior approvals are among them. Proof that these approvals have been obtained will normally consist of a certificate issued by another municipal official, upon which the construction office may rely without the need for special knowledge or interpretation. Any restriction upon the issuance of construction permits imposed by the manager and based upon his scrutiny of prior approvals, would be a clear interference with the prerogatives of the construction official, an interference which the Code does not countenance. The manager is not left without a remedy. When a prior approval has not been obtained, or the approval contains conditions not being met, he may enforce the penalty provisions and injunctive remedies normally provided in zoning, planning and...