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Cox v. Township of Wall

Decided: February 20, 1956.

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



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

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 materals 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. 52:27 C -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.

Tests 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 (1952). The regulations are presumed to be reasonable in that regard, Mt. Zion Baptist Church of Lodi Tp., Bergen County, v. Melillo , 3 N.J. 61, 65 (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 (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 ...


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