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County of Union v. Benesch

Decided: September 30, 1968.

COUNTY OF UNION, A BODY POLITIC OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JOHN T. BENESCH, SUPERINTENDENT, HOUSING AND INSPECTIONS, CITY OF ELIZABETH, NEW JERSEY, DEFENDANT-APPELLANT



Conford, Kilkenny and Leonard.

Per Curiam

Defendant appeals from a summary judgment of the Law Division ordering him (a) to issue a building permit to plaintiff to make rectifications, repairs and alterations to the Union County Parking Garage and Juvenile Detention Center, provided plaintiff's plans and specifications filed comply with the building code of the City of Elizabeth; (b) to make the necessary inspections in accordance with the city's building code "as to [sic] rectifications, repairs and alterations proceed," and (c) upon completion by plaintiff of the rectifications, alterations and repairs in accordance with the building code of the city to issue a certificate of occupancy. Defendant's cross-motion for summary judgment in his favor was denied.

The city argues that County of Union is a "superior authority" to City of Elizabeth in the political subdivision hierarchy and, therefore, its building code is inapplicable to rectifications, repairs and alterations of buildings on county-owned property within the city. The city also maintains that a county may not require a municipality to make inspections of county buildings during the progress of construction and thereafter be responsible for adherence by the contractors and agents of the county government to the municipal building code, or one adopted by the city by reference, such as the Standard Building Code of New Jersey. Elizabeth has adopted the latter by reference, pursuant to N.J.S.A. 52:27 C -56.

Instead of accepting the city's disclaimer of all authority over the construction and repair of county buildings, the county maintains, as the trial court found, that a county government is required by statute to obtain a building permit from the municipality and, as a consequence, this entails compliance with the local building code, inspections by the city's inspectors and issuance of a certificate of occupancy

upon completion of the work in accordance with the building code.

As a general rule, a superior public authority is immune from municipal ordinances. For example, New Jersey Highway Authority was held not subject, in the construction of service areas, to local zoning and building requirements. Town of Bloomfield v. New Jersey Highway Authority, 18 N.J. 237 (1955). "There is no doubt whatever as to the power of the Legislature to immunize its public Authorities from the provisions of local zoning and building restrictions." Id., at p. 244. So, too, in Hill v. Borough of Collingswood, 9 N.J. 369 (1952), it was held that the Camden County Park Commission was not amenable to the zoning power of the Borough of Collingswood although the park lands were within the municipal boundaries. And in Tim v. City of Long Branch, 135 N.J.L. 549 (E. & A. 1947), the zoning ordinance of the City of Long Branch was held not binding on the National Housing Agency in leasing and remodeling property pursuant to the provisions of a federal act.

Where the immunity from local regulation is claimed to exist in favor of a superior authority, "the presumption is that such immunity was intended in the absence of express statutory language to the contrary." Aviation Services v. Board of Adjustment, Hanover Tp., 20 N.J. 275, 282 (1956).

The trial court found in N.J.S.A. 40:23-6.20, albeit by implication, the necessary statutory language requiring Union County to obtain a building permit from the City of Elizabeth for the proposed rectifications, repairs and alterations to the county garage and juvenile detention center. That statute, adopted as L. 1948, c. 413, provides:

"No county having a population in excess of four hundred thousand inhabitants other than a county of the first class, or the board of chosen freeholders thereof or any of its contractors, shall be required to pay any municipal fee or charge in order to secure a building permit for the erection or alteration of any county building or part thereof from the municipality wherein such building may be located."

Concededly, Union County has a population in excess of 400,000 inhabitants and is not a county of the first class.

In adopting L. 1948, c. 413 (N.J.S.A. 40:23-6.20) the Legislature rejected the avowed policy of Senate Bill No. 122 for 1948, which proposed that no county should be required to secure approval of its plans and specifications for the erection or alteration of any county building by the municipality wherein such building may be located, and that no county or contractor doing any work in connection with county buildings should be required to secure a building permit for such work from the municipality. The statement accompanying that bill ...


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