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J.P. Properties Inc. v. Macy

Decided: February 19, 1982.

J.P. PROPERTIES, INC., PLAINTIFF,
v.
EDGAR J. MACY, JR., CONSTRUCTION OFFICIAL OF TOWNSHIP OF EVESHAM, AND CHARLES P. BALCZUN, MANAGER OF THE TOWNSHIP OF EVESHAM, DEFENDANTS, V. THE BUREAU OF CONSTRUCTION CODE ENFORCEMENT, DIVISION OF HOUSING, DEPARTMENT OF COMMUNITY AFFAIRS, STATE OF NEW JERSEY; QUILL CORP., JOHN PASQUARELLA, MARK MOORE AND MARLBORO HOME BUILDERS, INC., DEFENDANTS



Haines, A.j.s.c.

Haines

This is a declaratory judgment action. In question is the authority of the Evesham Township Manager, Charles P. Balczum, over the Township Construction Official, Edgar J. Macy, Jr. Balczun was appointed pursuant to the provision of the Faulkner Act, N.J.S.A. 40:69A-1 et seq. , Macy under the Uniform Construction Code Act, N.J.S.A. 52:27D-119 et seq. The issues have not been addressed in any reported decision. The township manager claims authority over the construction official to:

(1) discipline him for repeated failures to enforce various provisions of the Uniform Construction Code;

(2) control the issuance of "prior approvals" and temporary certificates of occupancy;

(3) require him to provide regular reports of his activities;

(4) issue a stop-work order under the Soil Erosion and Sediment Control Act, N.J.S.A. 4:24-35.

Numerous disputes have arisen over these claims resulting in the institution of disciplinary proceedings against Macy by the manager. The proceedings have been restrained pending the receipt of this opinion.

The issues here have been submitted on the record; briefs and oral argument have been entertained. There are no factual disputes.

A. Code Enforcement Authority in General: Manager vs. Construction Official

(1) The Authority of the Construction Official

Local enforcement of the Uniform Construction Code is entrusted by N.J.S.A. 52:27D-126(a) to the construction official (and any necessary subcode officials), who approves all construction permit applications, N.J.S.A. 52:27D-131, inspects all construction undertaken pursuant to a permit, N.J.S.A. 52:27D-132, and issues all certificates of occupancy, N.J.S.A. 52:27D-133. He may issue stop orders under N.J.S.A. 52:27D-132(c) when construction violations occur. His duties are spelled out in great detail in N.J.A.C. 5:23-4.3(c)4.

The Commissioner of Community Affairs determines the qualifications of the construction official, N.J.S.A. 52:27D-126(c), for which purpose rules have been adopted pursuant to N.J.S.A. 52:27D-124(a). They appear in N.J.A.C. 5:23-5.25. Appeals from decisions of the construction official may be taken to the local or county Construction Board of Appeals pursuant to N.J.S.A. 52:27D-127.

(2) The Authority of the Township Manager

Our statutes provide the manager with very broad authority over municipal affairs, officials and employees. He executes the laws of the township, appoints and removes officials and investigates municipal affairs. N.J.S.A. 40:69A-95. Nevertheless, it is clear ...


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