For modification -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. Opposed -- None. The opinion of the court was delivered by Proctor, J. Weintraub, C.J., and Haneman, J. (dissenting in part).
[40 NJ Page 253] The plaintiff Parking Authority of the City of Trenton (Authority) was created by ordinance of the defendant City of Trenton (City) on December 16, 1948, pursuant to the Parking Authority Law (L. 1948, c. 198, N.J.S.A. 40:11A-1 et seq.). On December 26, 1961 the Authority was required by the defendant Barlow, Building Inspector of the City, to pay a fee in the amount of $1,831 for a building permit under the City's building code in connection with the proposed erection of a ramp garage by the Authority on premises owned by it and situated in the City. The building code was adopted by the City pursuant to the grant of police power contained in N.J.S.A. 40:48-1(13), which provides in part that a municipality may make and enforce ordinances to "regulate and control the construction * * * of buildings and structures of every kind within the municipality; * * *." The Authority paid the fee under protest and brought this action in May 1962, contending that the Legislature, by providing for the Authority's creation as an autonomous body, intended to immunize it from the requirements of the City's building code. It sought a judgment declaring whether the permit requirement of the building code applies to it, and, if not, then directing the repayment of the aforesaid fee.
The complaint contained a second count setting forth that Mayor-Council Plan C of the Optional Municipal Charter Law (L. 1950, c. 210, N.J.S.A. 40:69A-1 et seq. (Faulkner Act)) would become effective in the City on July 1, 1962. It further set forth that on August 7, 1961, the City entered into an agreement with the Authority which provided that the City would make up any deficit in the Authority's debt service from the City's on-street parking meter revenues, that the City would do nothing to interfere with the operation of the Authority's facilities, and that such agreement would inure to the benefit of the Authority's bondholders. At the time of the action there were outstanding bonds in the amount of $2,000,000. The Authority sought a judgment declaring whether the Authority was an office which would be abolished, and whether the terms of office of the five incumbent commissioners would be terminated, by operation of N.J.S.A. 40:69A-207 of the Faulkner Act upon the effective date of the new plan of government, and whether, in any event, the City was estopped by virtue of the above agreement from abolishing the Authority or from interrupting the terms of the incumbent commissioners. The defendants' answer admitted all allegations of fact contained in the complaint.
On the Authority's motion for summary judgment, the trial court held that the City was empowered to exact a fee for its building permit and that the Authority was not entitled to reimbursement. Therefore, the Authority's motion for summary judgment on the first count was denied, and upon the consent of the parties to treat such disposition as final, a judgment in favor of the defendants was entered. As to the second count, the trial court held that neither the Authority nor the terms of office of its incumbent commissioners were affected by N.J.S.A. 40:69A-207 of the Faulkner Act. The court therefore granted the Authority's motion for summary judgment on this count.
The defendants appealed from the judgment entered on the second count, and the Authority cross-appealed from the judgment
entered on the first count. We certified the appeals before they were heard in the Appellate Division.
In Broadway National Bank of Bayonne v. Parking Authority of the City of Bayonne, 40 N.J. 227 (1963), we held that upon the effective date of a new plan of government under the Faulkner Act in a municipality, the terms of office of commissioners of a parking authority created by the municipality under the Parking Authority Law, supra, come to an end by operation of N.J.S.A. 40:69A-207, but that the offices constituting the authority are not abolished. That disposition is controlling in the present case. Therefore, as to the defendants' appeal from the judgment entered on the second count of the complaint, we hold that the trial court's judgment must be modified to reflect the termination of the terms of office of the incumbent commissioners upon the taking effect of the new plan of government in the City. We find nothing in the City's agreement with the Authority inconsistent with this conclusion.
On the Authority's appeal, it contends that it is immune from the City's building permit requirement because (1) the Authority, as a political subdivision of the State and as an agency and instrumentality of the City, is exempt from such requirement; and (2) the fee for the building permit constitutes a tax from which the Authority is exempt under N.J.S.A. 40:11A-19.
It is without question that the Authority is a political subdivision of the State, N.J.S.A. 40:11A-4, and an independent corporate entity, distinct and separate from the municipality creating it. Broadway National Bank of Bayonne v. Parking Authority of the City of Bayonne, supra, at p. 233 of 40 N.J.
The Authority contends that because of its above status it is not required to obtain a building permit for the construction of its garage. It cites New Jersey Interstate Bridge & Tun. Comm. v. Jersey City, 93 N.J. Eq. 550 (Ch. 1922); Town of Bloomfield v. New Jersey Highway Authority, 18 N.J. 237 (1955); Aviation Services v. Board of Adjustment
of Hanover Tp., 20 N.J. 275 (1956); Hill v. Borough of Collingswood, 9 N.J. 369 (1952); and Kaveny v. Montclair Board of Com'rs, 71 N.J. Super. 244 (App. Div. 1962). We think these cases do not support the Authority's position. In both New Jersey Interstate Bridge & Tun. Comm. and Town of Bloomfield, the question presented was the applicability of municipal building and zoning ordinances to state instrumentalities which were engaged in the extension of the state highway system. Such entities, as agencies of the State, were held in both cases to be protected from such local regulations by the State's sovereign immunity, which had not been surrendered in the legislation creating such entities. The rationale of these cases was that local resistance should not be allowed to impede the State's means of expanding its highway system to meet modern conditions. See Town of Bloomfield, 18 N.J., at p. 248. There is no analogy between the above state ...