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Div. of Health v. Rogers

Decided: January 12, 1981.


Dwyer, J.s.c.


The major question presented by this case is whether the City of Newark, a municipal corporation of New Jersey, which has not established a separate entity as a local board of health pursuant to N.J.S.A. 26:3-1 et seq. (city), may compel the owner of a fire-gutted, uninhabited but ostensibly secure residential structure to raze said structure at the owner's expense by means of an action in the Chancery Division for a mandatory injunction, based upon its alleged common law right to abate a public nuisance or its alleged rights under N.J.S.A. 26:3-56. The aforementioned statute provides:

The local board, instead of proceeding in a summary way to abate a nuisance hazardous to the public health, may institute an action in the Superior Court, in

the name of the State, on relation of the board, for injunctive relief to prohibit the continuance of such nuisance.

Defendant Joseph Rogers asserted that the structure did not constitute a nuisance within the meaning of the health statutes; hence, no injunction to demolish under the health statutes was necessary and could not be properly granted.

The basic pleadings and facts, which are undisputed, may be simply summarized.

While the city was proceeding against Rogers in the municipal court for alleged code violations, the city commenced this action by verified complaint supported by affidavits of personnel from the Code Enforcement Agency drawn from the Building Inspection Department, the Fire Prevention Bureau, the Electrical Code Department, as well as adjoining real property owners. The subject property is located diagonally across from an elementary school, had been the subject of several fires, and the owner had been cited a number of times for code violations. Allegedly the roof was open to the elements, the structure was open to intrusion, particularly by children, the stairs and supporting members were weak, the fire stops were destroyed, the front porches were unsupported and in danger of collapse, and the premises were strewn with debris.

Because city relied upon its common law power to abate a public nuisance and the provisions of N.J.S.A. 26:3-56, it sued in two capacities. The significance of a suit ex rel. is that the party on whose relation the suit is brought is the agent or instrumentality of the named party, cf. State ex rel. Hillside Tp. Bd. of Health v. Mundet Cork Corp. , 126 N.J. Eq. 100 (Ch.1939), aff'd 127 N.J. Eq. 61 (E. & A.1941). This suggests that the suit is one that the official or board must have initially been capable of instituting in his, her or its official capacity. In this matter the reference is to N.J.S.A. 26:1A-26 to 31.

The city has not established a local board of health as a separate entity apart from the local municipal government under N.J.S.A. 26:3-1, but relies upon its inherent powers to

enforce applicable health laws. See Jones v. Buford , 132 N.J. Super. 209 (App.Div.1975), rev'd on other grounds 71 N.J. 433 (1976).

The city had prima facie standing to assert the cause of action pleaded. However, the city sought an immediate ex parte order for the removal of debris, boarding up of the premises, as well as an order "immediately requiring defendant . . . to have the building demolished in a safe and approved manner and to fill in all excavations in a workmanlike fashion."

There was no affidavit from the city establishing that conditions of disease, pollution, noxious fumes, poisonous gases or increase of vermin were attributable to the subject property. The described conditions appeared to fit within N.J.S.A. 40:48-2.5 et seq. , the statute which authorizes a municipality to adopt an ordinance for buildings in that municipality which are unfit for human habitation or occupancy, without any support for a finding of imminent danger to life. The court denied any ex parte relief but fixed a short return date. See State ex rel. Pompton Lakes Bd. of Health v. E.I. DuPont de Nemours Powder Co. , 79 N.J. Eq. 31 (Ch.1911).

Before the return date Rogers filed an affidavit in opposition and an answer and counterclaim. For purposes of this decision, there is no need to detail the allegations of the counterclaim set out in four broad sweeping counts alleging, among other matters, claims for compensatory relief due to city's failure to provide adequate police and fire protection. The ...

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