Halpern, Crane and Michels. The opinion of the court was delivered by Halpern, P.J.A.D.
Plaintiff Warren Park Estates, Inc. appeals from a summary judgment entered in favor of defendant, East Windsor Township sustaining the validity of defendant's amended building code ordinance which required the installation of copper electric wiring in all new buildings.
The facts are undisputed. Plaintiff, a housing developer, was about to commence erection of 110 single-family homes
pursuant to an approved subdivision when the building code ordinance was amended to require copper electric wiring for home installations of the type contemplated by plaintiff. Its plans and specifications for the contemplated development, as submitted to sub-contractors, called for aluminum electric wiring, as specified by the National Electric Code and adopted as the controlling standard by the New Jersey Public Utility Commission (P.U.C.) by its regulations, N.J.A.C. 14:5-7.5(g) and 14:5-7.9. It brought this declaratory judgment suit to set aside and declare void that portion of respondent's building code which mandated the use of copper electric wiring, on the theory that the P.U.C. had preempted this field.
The trial judge, in granting summary judgment and rejecting plaintiff's contentions, relied upon In re Adoption of Regulations , 127 N.J. Super. 295 (App. Div. 1974), and stated:
The attempt by P.U.C. to pre-empt the power of a municipality I find to be ultra vires, that the statute applies and I hasten to add that I do not consider this decision, the decision is based on the law as I interpret it to be even though it doesn't make very much sense to me that the state of the law as I find it to be permits the P.U.C. to regulate cities and counties in certain instances and not to be able to regulate municipalities or counties in other instances but that is a matter not for me but for legislative or appellate action.
Consequently the motion for summary judgment brought by the defendant is granted. The motion brought by the plaintiff is denied both without costs.
We disagree with his conclusions and reverse.
The legislative history concerning standards for installation and inspection of electrical wiring for buildings is fully recited in Judge Kolovsky's opinion for this court, relied upon by the trial judge and reported in 127 N.J. Super. 295, and therefore will not be restated herein. It will suffice for us to note that the holding therein is not inconsistent with the views expressed herein.
The narrow issue before us, as we view it, is whether the general powers given to all municipalities, in N.J.S.A.
40:48-1 and the provisions in N.J.S.A. 45:5A-17, to enact ordinances to regulate and inspect the erection, alteration or repair of structures, has been preempted by the State with respect to the standards applicable for the installation and ...