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Eastern Paralyzed Veterans Association Inc. v. City of Camden

Decided: March 21, 1986.


Lowengrub, J.s.c.


[220 NJSuper Page 575] Plaintiff, Eastern Paralyzed Veterans Association, Inc., seeks judgment compelling the City of Camden (Camden), the Delaware River Port Authority (DRPA) and the Port Authority Transportation Corporation (PATCO) to install an elevator in

the Camden Transportation Center (CTC) to accommodate users of the CTC between the main floor of the building and the train platform of the Broadway PATCO station located within that structure. It is alleged by plaintiff that the State Uniform Construction Code Act (U.C.C.A.), N.J.S.A. 52:27D-119 et seq., the State Standard Barrier-Free Design Code, N.J.A.C. 17:19A-1.1 et seq., and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., mandate the installation of an elevator.

Camden filed a third party complaint against the Commissioner of the Department of Community Affairs alleging that the Bureau of Construction Code Enforcement (Bureau) within the Department refused to issue building permits or a certificate of occupancy for the portion of the CTC serviced by the PATCO train platform unless an elevator was included in the CTC plans and installed as provided in the regulations promulgated pursuant to the Barrier-Free Design Code. The Commissioner filed a counterclaim against Camden and cross-claims against DRPA and PATCO seeking to enforce the U.C.C.A.

This matter is now before the court on cross motions for summary judgment. A motion for summary judgment was filed on behalf of DRPA and PATCO seeking a determination that the U.C.C.A. and the Barrier-Free Design Code could not be applied because the DRPA is a bi-state agency not subject to the laws of either New Jersey or Pennsylvania. Motions for summary judgment have also been filed on behalf of the Commissioner and plaintiff seeking enforcement of the U.C.C.A. and the Barrier-Free Design Code. There are no material facts in dispute and the issues may be decided without a plenary hearing. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 73-75 (1954).

On June 8, 1984, Camden and DRPA entered into a contract which, among other things, provided for the construction of the CTC. DRPA was to convey certain designated lands to the Housing Authority of Camden. Those lands were to become part of the redevelopment area for the CTC and were referred

to in the agreement as "Property Rights." The agreement further provided that Camden was to become owner of a portion of the "Property Rights", and the owner of a "transportation center on the east side of Broadway and/or a participant in future developments on or in the other Property Rights being conveyed to the Housing Authority". DRPA's existing passenger transit facilities on the east and west sides of Broadway were to be demolished and replaced by the new facilities.

The sections of the agreement relevant to the issue of the installation of the elevators are as follows:

1.4 With respect to any construction, maintenance, repairs, alterations, and/or work of any kind or type of which the CITY is the owner, sponsor, participant in title, and/or a participant in any way, and which is to be performed in the PROPERTY RIGHTS, or touching the PROPERTY RIGHTS, it will be the CITY's obligation to prepare or cause to be prepared and submitted, complete sets of the plans and specifications and any changes therein to the Chief Executive Officer of DRPA, which term shall include the Chief Executive Officer of any successor in interest in DRPA (hereinafter CEO of the DRPA) in advance of any such construction work.

1.4.1 The decision of the CEO of the DRPA regarding said plans shall be final and determinative and shall be based on the protection and safety of the public and maintenance of uninterrupted service and continuity of operation of DRPA's RTS.

1.4.2 Any construction, maintenance, repair, or work of any type within any of the PROPERTY RIGHTS shall be done, or caused to be done, by the CITY at such time and in such manner as shall be satisfactory to the CEO of the DRPA.

1.4.3 Any construction, maintenance, repair, or other work of any type in the PROPERTY RIGHTS shall be at CITY's sole cost and expense or at the sole cost and expense of its agent, designee or successor or assign in title, and with no cost or expense to DRPA and/or PATCO.

1.4.4 The manner of construction and materials used shall be such as are customarily used in projects involving construction over railroad and/or rapid transit right-of-way.

1.4.5 The approval of the DRPA shall in no way pass on the sufficiency, adequacy or validity of such construction or construction procedures for any purpose, and shall not relieve the CITY or its successor of any liability or responsibility relative thereto.

The agreement does not specifically provide for an elevator and DRPA refuses to permit the installation of one in the CTC; hence, this suit.

The Legislature has mandated that "all plans and specifications for the construction or remodeling of any public building in the State shall provide facilities for the physically handicapped." N.J.S.A. 52:32-4. "Public building" is defined as, among other things, a public transportation terminal and station. N.J.S.A. 52:32-6(a). It is clear the CTC is, by definition, a public building.

In order to implement N.J.S.A. 52:32-4, the State Standard Barrier-Free Design Code, N.J.A.C. 17:19A-1.1 et seq., was adopted.*fn1 This was done in accordance with N.J.S.A. 52:32-5 providing that the Department of Community Affairs shall promulgate regulations as to the kinds, types and quality of the facilities for the physically handicapped and in accordance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq. The Barrier-Free Design Code applies to the construction of all buildings, structures, and facilities used by the general public. Although exceptions are provided, no exception is applicable to the facts in this case. N.J.A.C. 17:19A-1.2(a)(1)-(6).

The U.C.C.A. was enacted, among other reasons, to provide standards for construction, to adequately protect the health, safety, and welfare of users of buildings and to eliminate unnecessary duplication of effort and fees in the review of construction plans and the inspection of construction. N.J.S.A. 52:27D-120(a), (c), (e) & (f). Under N.J.S.A. 52:27D-129(b)

Construction, alteration, renovation, rehabilitation, repair, removal or demolition of any building or structure situated wholly within New Jersey by or for an agency created by an interstate compact to which the State of New Jersey is a party shall be subject to the provisions of the code; provided that such interstate agency shall have exclusive ...

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