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County of Union v. Benesch

Decided: November 28, 1967.


Civil action in lieu of prerogative writs.

Feller, J.s.c.


This is an action in lieu of prerogative writs instituted by the County of Union in connection with the premises known as the Union County Parking Garage and Juvenile Detention Center. The county, having determined that certain repairs, rectifications and alterations are necessary to that structure, sought to have the City of Elizabeth issue a building permit, conduct inspections as the work progressed, and issue a certificate of occupancy upon completion of the work. The city, through its Superintendent of Housing and Inspections, refused to issue the permit for the reason that in the absence of statutory authority, municipal ordinances are not enforceable as to the county, and therefore the city has no authority to issue such a building permit. The county then instituted the present action seeking to compel the city to comply with the request for a building permit, inspections, and a certificate of occupancy upon completion of the work, all in accordance with the building code of Elizabeth. To that end cross-motions for summary judgment have now been filed by the respective parties.

Although the following question is not in issue in the present litigation, it was discussed briefly during the oral argument. It should be noted that the board of freeholders has authority under the statutes, N.J.S.A. 52:27 C -54, N.J.S.A. 52:27 C -55 and N.J.S.A. 52:27 C -56, to adopt by resolution the Standard Building Code of the State of New Jersey as the building code of the County of Union:

"52:27 C -54. Standard building code

The department of economic development, through its division of planning and engineering, shall prepare a code to be known as the standard building code of New Jersey and thereafter may prepare amendments altering it or adding to it.

52:27 C -55. Scope of code

The code, or the same as amended, shall regulate the design, construction, repair, alteration, demolition and removal of buildings and structures of every kind within such municipalities as may adopt it and shall govern such counties, state boards, departments or other State agencies as may adopt it. Provision may be made in the code prohibiting, within certain limits, the construction, repair or alteration of buildings or structures with specified materials.

52:27 C -56. Adoption of code by reference

Any municipality may adopt the code, and any amendments thereto, by ordinance, without incorporating the same in the ordinance; provided, reference is made therein to the code as the 'Standard Building Code of New Jersey' or, in the case of amendments, to the section numbers and dates of the amendments. In the same manner any county, State Board, department or other State agency may, by ordinance or resolution, adopt the code and amendments thereto." (Emphasis added)

This is the same building code that was adopted by the City of Elizabeth in 1964.

If this had been adopted by the County of Union, then the Superintendent of Housing and Inspection of Elizabeth would not be involved. The building permits, inspections and supervision, and the final approval of the repairs, rectifications and alterations would be by the superintendent, inspectors and personnel of the county and at the expense of the county. It would thus be the duty of those employed by the county to see that the proposed repairs and the completed repairs conformed to the Standard Building Code as adopted by the county.

If the code had been adopted by the board of freeholders, it would not be necessary to determine the present legal issue. However, the statute is not mandatory in its terms and a board of freeholders cannot be compelled to adopt the Standard Building Code. This court has been reliably informed that none of the 21 counties in this State have adopted the code, probably because of lack of facilities

to enforce the same. Apparently, the code was not adopted in Union County because of limited construction of county buildings in the past few years and also because of lack of facilities in Union County.

Since the Union County Board of Freeholders has not adopted the Standard Building Code of New Jersey, it is necessary to decide the issue presently before this court.

The main issue in this case is whether a county is subject to the provisions of a municipal building code and the necessity of obtaining a building permit. There are no reported court decisions applicable to the particular facts in this case and the present state of the law on this question is not clearly expressed in the statutes. As a result, this court readily understands the sharp differences of opinion that have existed with reference to this matter. Consequently, this court is satisfied that no presently existing statute precisely settles the matter and that the legislative intent must therefore be determined inferentially. City of East Orange v. Palmer, 47 N.J. 307, 313 (1966).

N.J.S.A. 40:48-1(13) provides that the governing body of every municipality may make, amend, repeal and enforce ordinances to regulate and control the construction, erection, alteration and repair of buildings and structures of every kind within the municipality. This statute authorizes the adoption of a building code and the issuance of building permits. Cox v. Wall Tp., 39 N.J. Super. 243, 246 (App. Div. 1956). The City of Elizabeth, by ordinance No. 112 passed January 14, 1964, adopted the standard Building Code of ...

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