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Itzen & Robertson Inc. v. Board of Health of Borough of Oakland

Decided: November 8, 1965.


Schneider, J.c.c. (temporarily assigned).


Plaintiff and defendants filed motions for summary judgment in the above suit in lieu of prerogative writs seeking to review an ordinance of the Board of Health of the Borough of Oakland concerning maintenance of septic tanks. The parties have agreed on a stipulation of facts and the matter is determined by these summary proceedings.

Plaintiff is engaged in the business of constructing sewage disposal systems. He does so in the Borough of Oakland, and has been licensed there in accordance with the local ordinance. On October 21, 1964 plaintiff sought a permit to construct a sewage disposal system upon Lot 3B in Block 3205 on the Oakland tax assessment map. The results of a percolation test, a soil log test and a plan for the proposed installation were filed and approved by the sanitary inspector under the terms of the existing local ordinance.

The secretary of the board of Health advised plaintiff it must complete, sign and file a maintenance obligation, as provided and in the form required under section 2.2 of ordinance No. 64-0-18, under attack in this case. Plaintiff was denied a permit because of its refusal to sign the maintenance obligation.

Plaintiff attacks that part of the ordinance requiring the execution of the maintenance obligation prior to the issuance of a permit to erect the sewage disposal system.

Section 1 of the ordinance requires compliance with standards for construction of sewerage facilities as promulgated by the State Department of Health under the Realty Improvement Sewerage and Facilities Act (1954), unless higher standards are prescribed in the ordinance.

Section 2.2 provides:

"No permit shall be issued by the Board pursuant to this Section unless and until the applicant therefor shall have executed a written obligation in a form determined and adopted by the Board by resolution, obligating the applicant to maintain, repair, reconstruct, alter, change and improve the disposal system covered by the application for said permit as directed by the Board or its Sanitary Inspector for the period of one year after the date that said systems are first put in operation after the Certificate of Compliance provided for by Section 5.1 of this ordinance is issued."

Under section 3.4, providing for licenses for construction, installation, repair and alteration of sewerage facilities, it is stated that the applicant for license shall file a $2,000 bond to secure the performance of the maintenance obligations. The ordinance is directed not at the owner of the property but to the constructor of the system, and the parties agree this is so.

The ordinance has the usual severability clause (section 12) in the event any part of the ordinance is declared illegal.

The maintenance obligation form binds the applicant to use such materials and so to construct and install the disposal system that it will remain in good repair, condition and operation for one year. The applicant agrees to repair, reconstruct, alter, change and improve said system if necessitated by any fault of materials, plans, methods or processes employed in the construction of said systems, as determined during said one-year period; and the applicant further agrees and binds itself that the system for such term shall be and remain in good serviceable condition, producing neither

a public nor private health nuisance and free from any defects that will impair the usefulness of the disposal system.

The form further provides that if at any time during the one-year period, in the judgment of the sanitary inspector, whose judgment shall be final and conclusive, the system becomes defective or does not operate in a serviceable condition because of defective materials, workmanship, plans, methods or processes, the applicant must repair, alter, reconstruct, change or improve the system as directed by the sanitary inspector.

Failure to perform in seven days requires reimbursement to property owner or board of health for any work done. The owner may then be authorized by the board to bring suit in his own name to recover damages sustained, and the applicant must agree that he may so be authorized.

Plaintiff has no objection to the license requirement, to the filing of plans and soil and percolation tests, the approval of same, the approval of the work and the certificate issuance to show proper compliance. It objects to the requirement for a maintenance bond, contending the board of health has no power to require the same. It also objects to the great discretionary power given to the sanitary inspector without any standards being fixed for his action.

We are very familiar with the fact of presumption of validity of municipal ordinances. State v. Wittenberg, 50 N.J. Super. 74, (App. Div. 1957), affirmed 26 N.J. 576 (1958). We know that municipalities derive their ...

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