On appeal from Superior Court of New Jersey, Law Division, Monmouth County.
Fritz, Furman and Deighan. The opinion of the court was delivered by Fritz, P.J.A.D.
[195 NJSuper Page 246] This appeal demonstrates graphically that which occurs when genuinely caring persons face each other armed with substantial and genuine conflicting policy concerns. There are no
factual conflicts; there was a stipulation below and in this court the parties have stipulated to the accuracy of the representations in the statement of facts in the brief of each. The problem is one of law. It is as easy to postulate as it is difficult to resolve.
Marlboro High School, within defendant District, has erected a "speed bump" in the entrance driveway closest to the Marlboro Fire Company firehouse.*fn1 This is a traffic barrier or restraint extending the width of the drive, about 18 inches across and approximately 4 to 6 inches higher at its rounded peak than the driveway surface. Its avowed and obvious purpose is to enforce very slow vehicular movement as a matter of safety.
There is in effect in the plaintiff Township an "Ordinance Adopting Basic Fire Control Measures and Regulating Governing Conditions Which Could Impede Or Interfere With Fire Suppression Forces," apparently adopted verbatim from the recommendation of the BOCA (Building Officials and Code Administrators International, Inc.) Fire Prevention Code/1978. That ordinance prohibits the erection and maintenance of speed bumps.
The respective interests are apparent. Both parties were assiduous in their desire to protect the students. Toward this end the school believed it was necessary to slow down the 108,000 student and teacher vehicles traversing the property during the school year. The Township targeted as its priority the absolute necessity of delivering emergency equipment to the site in the shortest time and in good working order in case
of a catastrophe. No objective person of moral principles could reasonably fault either view.
Defendant did all it could and thought it must: at the time of construction it secured approval from the State Department of Education of construction plans showing the bumps. Plaintiff did all it could and, when defendant refused to remove the bumps, thought it must: its fire inspector swore out a summons charging defendant with violation of the ordinance.
The municipal court judge believed "municipal control is exclusive" in a matter such as this, convicted defendant, fined it $250 and ordered the bumps removed within 30 days. The District appealed. The Law Division judge believed that the matter was controlled by Kaveny v. Montclair Bd. of Com'rs., 71 N.J. Super. 244 (App.Div.1962), certif. den. 36 N.J. 597 (1962), and accordingly
Convinced "beyond a reasonable doubt" that there was statutory pre-emption by virtue of N.J.S.A. ...