Kaveny v. Board of Com'rs of Town of Montclair, L--10873

• Decision Date: 28 June 1961
• Docket Number: No. L--10873,L--10873
• Parties: Martin J. KAVENY, Plaintiff, v. BOARD OF COMMISSIONERS OF the TOWN OF MONTCLAIR, Joseph D. Allen, James A. Walsh, Board of Education of the Town of Montclair and New Jersey State Board of Education, Defendants. . Heard
• Court: New Jersey Superior Court

Page 94

69 N.J.Super. 94

173 A.2d 536

Martin J. KAVENY, Plaintiff, v. BOARD OF COMMISSIONERS OF the TOWN OF MONTCLAIR, Joseph D Allen, James A. Walsh, Board of Education of the Town of Montclair and New Jersey State Board of Education, Defendants.

No. L--10873.

Superior Court of New Jersey Law Division.

Heard June 28, 1961.

Decided July 5, 1961.

Francis F. Welsh, Montclair, for plaintiff.

Samuel Allcorn, Jr., Montclair, for defendants Board of Com'rs of Town of Montclair, Joseph D. Allen and James A. Walsh.

Charles R. L. Hemmersley, Montclair, for defendant Board of Education of Town of Montclair.

David D. Furman, Atty. Gen., by Alfred Abbotts, Trenton, for defendant New Jersey State Bd. of Education.

WAUGH, A.J.S.C.

This is an action in lieu of prerogative writ (mandamus) wherein the plaintiff seeks to compel the defendant building inspector and plumbing inspector of the Town of Montclair to inspect the work on additions to an alteration of the Montclair High School, a public secondary school in the Town of Montclair, Essex County.

The matter is presented before the court on plaintiff's motion for summary judgment, a cross-motion by the defendant State Board of Education for summary judgment, a motion by the defendant Board of education of the town of montclair and the board of commissioners of the town of Montclair to dismiss the complaint as not stating a claim upon which relief may be granted.

It is admitted that the Board of Education of the Town of Montclair commenced work on the construction of certain additions to and alteration of the Montclair High School, a public school. The buildings have not yet been completed. It is not denied that the plans and specifications for the improvements being made were approved by the State Board of Education as required by R.S. 18:11-8, N.J.S.A. No change in the plans or specifications have been made without the approval of the State Board of Education.

The Court has proof before it in the affidavit of George Crum, an inspector of school building construction employed by the Division of School Building Services, New Jersey State Department of Education, showing inspections of the Montclair school on March 27, 1961 and May 23, 1961. These inspections show compliance to date with the State Board's rules and regulations concerning plumbing and building construction (with one minor exception). That the inspections of Mr. Crum are supervised by the State Board is proven by the affidavit of Dr. Kenneth Woodbury, Assistant Commissioner in charge of the Division of Business and Finance of the New Jersey State Department of Education.

There is a sharp dispute as to whether or not the work is progressing without inspection by either the plumbing inspector and the building inspector of the Town of Montclair and without the proper supervision of these two departments. The plaintiff charges particularly that the plumbing work does not meet the requirements of the plumbing code of the Town of Montclair. The defendant Board of Education of the town specifically denies these allegations claiming that the building inspector and the plumbing inspector have voluntarily made periodic inspections of the work and have found it to be superior to that required under the Montclair building code. In addition, the contract of the local board provides:

'Sub-paragraph (e) of Paragraph 10 of the General Conditions, entitled 'Surveys, Permits and Regulations,' which are applicable to all six contracts (see photocopy of page 16 hereto annexed provides:

"The contractor shall give notices and comply with laws, ordinances, rules and regulations bearing on conduct of work as drawn and specified. If the contractor observes that drawings and specifications are at variance therewith, he shall promptly notify the architect in writing and adjust any necessary changes as provided in contract for changes in work. If the contractor performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, and without such notice to the architect, he shall bear all costs arising therefrom.'

'Sub-paragraph (a) of Paragraph 12 of said General Conditions, entitled 'Inspections and Tests,' (see photocopy of page 17 hereto annexed) provides:

"The contractor shall give written notice to the architect at least two weeks before plastering is started or any work is closed in so an inspection of all work in place can be made by the State Department of Education. Plastering work may not proceed until written approval is received by the architect from the State Department and forwarded to the contractor.'

'The paragraph entitled 'Codes, Rules and Permits' of the specifications for the heating and ventilating contract (see photocopy of page HU--4 hereto annexed) provides:

"All work and materials shall be installed in accordance with all codes, laws, et cetera, made by governing bodies, including local, national and the National Board of Fire Underwriters. The contractor shall secure and pay for all permits, et cetera.'

'The specifications for the plumbing work contract contains the following provisions (see photocopy of page P--1 annexed hereto):

"General Conditions:

"All work of this contract shall be performed in accordance with requirements of the contract documents. In addition the following conditions shall apply specifically to the plumbing contractor.

"(a) The plumbing contractor shall carefully read the aforementioned references and study the general construction plans and his proposal shall include all items whatsoever that may be necessary to complete the working and finished plumbing systems of the character and type specified.

"(b) All work shall be done in strict accordance with the rules of the National Board of Fire Underwriters, the State Department of Education, and in full compliance with the requirements of any governing board having jurisdiction.

"Code Requirements.

"(a) All materials and equipment furnished, and labor performed under this contract shall be in strict accordance with the requirements of the local plumbing code, or sanitary regulations.

"(b) Plumbing contractor shall file plans and other requirements with the Town of Montclair plumbing inspector before proceeding with installation and pay for all fees."

But on these motions I may not decide disputed facts. I must assume noninspection and noncompliance. The attorneys for all defendants forthrightly concede this proposition of law and take the position that the plaintiff is not entitled to require or compel any of the defendants to comply with the local building and plumbing ordinance and that they therefore have no authority to inspect such work to determine whether it does or does not comply with the said ordinance. All parties including the plaintiff agree that a decision in this case involves only a question of law.

The pertinent Montclair ordinance provides:

'Article I.

'a. Section I.

'Application.

'2. All matters concerning, affecting or relating to the location, construction, alteration, repair, removal, demolition, equipment, use and occupancy, and maintenance of buildings or structures erected or to be erected in the Town of Montclair are presumptively provided for in this ordinance except as otherwise provided for by law, ordinance, rule or regulation.

'(Buildings Affected)

'3. The provisions of this ordinance apply to buildings and structures on land not devoted or appropriated to streets as defined herein, and to constructions such as vaults, areas or street encroachments, however placed, that are appurtenant to such buildings and structures.

'Except as otherwise specifically provided for by law, such provisions shall apply with equal force to municipal, county or state buildings as they do to private buildings.' (Italics by the court.)

R.S. 18:11--8, N.J.S.A. provides as follows:

'Approval and filing of plans for school buildings.

'No contract for the erection of any public school building or any part thereof shall be made until and after plans and specifications therefor have been submitted to and approved by the state board of education. A copy of the plans and specifications as approved shall be filed forthwith with the state board. No change in the plans or specifications shall be legal unless the same have been submitted to and approved by the state board. A copy of all changes as approved shall be filed forthwith with the said board.'

R.S. 18:11--11, N.J.S.A. provides as follows:

'No municipal permit for school buildings required

'No board of education of any school district nor any board of education of a county vocational school shall be required to secure the approval of its plans and specifications for the erection or alteration of any school building or vocational school building or any part thereof by the municipality therein; nor shall any board of education or any board of education of a county vocational school or any contractor doing work in connection with school buildings or county vocational school buildings be required to secure a building permit from the municipality.'

From a consideration of the ordinance and the above sections of Title 18, together with R.S. 18:2--4(b), N.J.S.A., which gives the State Board of Education power to 'prescribe and enforce rules and regulations necessary to carry into effect the school laws of this State,' and sub-section (u), which states 'The State Board shall have all other powers requisite to the performance of its duties;' by reason of R.S. 18:3--2, N.J.S.A., one of the assistant commissioners of education has the supervision of business and financial matters; and that by reason of R.S. 18:3--3(a), N.J.S.A. the commissioner has the duty of inspection of buildings and of research, which presumably includes research into types of buildings; by reason of R.S. 18:11--1, N.J.S.A. it is the duty of each district to provide suitable school facilities and accommodations for all children; by reason of R.S. 18:11--6, N.J.S.A., the...