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Bell v. Township of Bass River

Decided: June 6, 1984.

WESLEY K. BELL, T/A WES OUTDOOR ADV. CO., PLAINTIFF,
v.
THE TOWNSHIP OF BASS RIVER, A MUNICIPAL CORPORATION IN THE COUNTY OF BURLINGTON, AND THE CONSTRUCTION CODE OFFICIAL AND/OR BUILDING INSPECTOR OF THE TOWNSHIP OF BASS RIVER, DEFENDANTS



Haines, A.j.s.c.

Haines

OPINION

On July 14, 1980, plaintiff Bell obtained a building permit from the defendant Township of Bass River ["Township"] for the renovation of a billboard claimed by him to constitute a non-conforming use under the local zoning ordinance. On July 18, 1980 the Township, having decided the use was not non-conforming, revoked the permit. In March 1981, Bell requested its reinstatement and thereafter, although the reinstatement request

had not been granted, commenced construction which he discontinued when a stop work order was posted by the construction official. On April 26, 1983, Bell appealed the revocation of the permit to the Burlington County Construction Board of Appeals.*fn1 The Board adopted a resolution on July 15, 1983 denying relief. Bell then commenced the present action seeking a review and reversal of the Board's decision and a judgment declaring the billboard to be a non-conforming use.

The issues address the State Uniform Construction Code Act, N.J.S.A. 52:27D-119 et seq., and regulations issued thereunder. They are of novel impression, involve only questions of law and are disposed of in this opinion which responds to cross-motions for summary judgment.

A. The Right to Appeal to the Superior Court

N.J.S.A. 52:27D-127b provides:

Failure by the board [of appeals] to hear an appeal and render and file a decision thereon within the time limits prescribed in this subsection shall be deemed a denial of the appeal for purposes of a complaint, application or appeal to a court of competent jurisdiction.

The statutes do not provide for an appeal to a court in the event a board does hear and decide an appeal. Regulations adopted by the Commissioner of Community Affairs, however, expressly so provide. N.J.A.C. 5:23-2.37(a)(7) states:

Any party, including the enforcing agency, may within 30 days, appeal from the decision of the board to a court of competent jurisdiction.

May these regulations be adopted absent express statutory authority? I conclude that they may.

N.J.S.A. 52:27D-124 provides in pertinent part as follows:

The commissioner shall have all the powers necessary or convenient to effectuate the purposes of this act, including, but not limited to, the following powers in addition to all others granted by this act:

a. To adopt, amend and repeal, after consultation with the code advisory board, rules: (1) relating to the administration and enforcement of this act . . . .

f. To make, establish and amend, after consultation with the code advisory board, such rules as may be necessary, desirable or proper to carry out his powers and duties under this act.

It is apparent that these provisions confer broad regulatory authority upon the commissioner. In New Jersey State Plumbing Inspectors' Ass'n v. Sheehan, 163 N.J. Super. 398 (App.Div.1978), the court considered the adoption of a conflict of interest provision by the Commissioner of Community Affairs. It held that the regulation was properly adopted under the broad rule-making power granted by the act:

Our reading of the regulation reveals no merit to the argument that the regulation is invalid. Given the underlying purposes of the act and its effective breadth, the regulation is reasonably designed to aid in the achievement of those purposes by helping to ensure fair and honest administration and enforcement of the Code. [ Id. at 403.]

Here, provision by regulation for appeals from decisions of the county or municipal boards of appeal rounds out the statutory scheme of enforcement and fair play. It furthers the purposes of the act and is clearly within the broad statutory grant of power to the Commissioner.

Aside from this, the statute must be read as authorizing the present application. Statutes are to be read sensibly for the purpose of carrying out legislative intention. Schierstead v. Brigantine, 29 N.J. 220, 230 (1959). The statute's failure to authorize an appeal from a board decision, while expressly authorizing that procedure when there is a failure to decide, is an oversight permissibly remedied by the court in accordance with the probable legislative intention. ...


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