On certification to the Superior Court, Appellate Division, whose opinion is reported at 220 N.J. Super. 528 (1987).
For affirmance -- Chief Justice Wilentz and Justices Handler, Pollock, Garibaldi, Stein and O'Hern. Opposed -- Justice Clifford. The opinion of the Court was delivered by O'Hern, J. Clifford, J., dissenting.
This case presents a troublesome dilemma for resolution. It involves a cooperative undertaking by a bi-state agency and a New Jersey municipal agency to create in New Jersey a downtown mass transportation center. Such a center will serve the laudable public goals of reducing dependence on automobiles, improving public transportation, and strengthening an inner city area. Both the Camden Housing Authority and the Delaware River Port Authority (DRPA), a bi-state agency of New Jersey and Pennsylvania, had the best of intentions. Under their cooperative plan, the Camden Housing Authority was to erect and construct a mass transit terminal in which DRPA's subsidiary Port Authority Transportation Corporation (PATCO) train service would operate.
The issue in this appeal has been presented as whether New Jersey's barrier-free design requirements in aid of the handicapped may be applied to the DRPA's operations or facilities. The trial court, differentiating between independent state regulation of the "external" operations of bi-state agencies and states' common regulations of their "internal" operations, concluded that the DRPA was required by New Jersey's Handicapped-Access Law to grant the municipality permission to install an elevator in the facility. Eastern Paralyzed Veterans Ass'n, Inc. v. Camden, 220 N.J. Super. 573, 582-85 (Ch.Div.1986). The Appellate Division affirmed that judgment, but did so primarily on the ground that the portion of the building in
which the elevator is located is "not exempt from the operation and effect of the applicable New Jersey statutes and regulations by virtue of the contractual arrangements and property conveyances made among and between the Delaware River Port Authority, Camden and the Housing Authority of Camden." Eastern Paralyzed Veterans Ass'n, Inc. v. Camden, 220 N.J. Super. 528, 531 (1987).
We hold that the trial court's theory of jurisdiction cannot be sustained, and we believe that before a court can conclude that the agency impliedly consented to New Jersey's design requirements, it must consider the question of whether the structural change would significantly affect PATCO's operations. On remand to consider that question, the Chancery Division may also consider whether the requirement may be justified as one of "complementary" regulation in each of the enabling states.
The controversy concerns the provision of an elevator for handicapped access to PATCO's underground train system. The DRPA, through this subsidiary, is authorized to conduct a mass-transit rail service between downtown Philadelphia and various stops in Camden County.
For many years, the line had an underground stop, Broadway Station, in downtown Camden. It suited the purposes of both PATCO and Camden to incorporate that stop into a new multi-purpose transportation center; Camden is in the midst of a major urban revitalization effort. (For ease of convenience we shall refer only to Camden, although the City chose the Camden Housing Authority as the agency to undertake the project.)
PATCO's Broadway station was valuably situated in the heart of the renewal areas. The parties agreed in 1984 that Camden would acquire the air rights over the Broadway stop in contemplation of construction of the new downtown transportation terminal to serve rail and bus passengers (Camden Transportation Center or CTC). It is hard to grasp from an appellate
record all of the details of the structural interplay, and we do not attempt an exact recital here. In simplest terms, Camden was to build the transportation center "above and around" a central core of property rights retained by DRPA: the underground corridor tunnel within which the DRPA would operate its train line and a concourse area over the tunnel for its ticket operations. Camden obtained various federal urban development grants for the $20 million project, which was scheduled to open in March 1987. The design question was: how were people to pass from the street-level concourse down to PATCO's trains?
With minor exceptions, defendants accept the version of the facts submitted by plaintiff, Eastern Paralyzed Veterans Association (EPVA): the DRPA and PATCO were to use a modern twenty-million dollar transportation center paid for principally by federal funds received by the City of Camden, not by the DRPA. Since this center would incorporate PATCO's Broadway Station and New Jersey Transit's bus lines, as well as a large parking garage for private cars, ridership on the PATCO Rapid Transit System would be likely to increase.
The City does not dispute the DRPA's right to approve construction plans for the CTC, as the transportation center is to be built over and provide direct access to the DRPA's subway tunnel. According to EPVA, the DRPA deeded to the City its old Broadway station buildings and all rights above a plane six feet below their ground level, thereby including the rights to a plane six feet below the floor level of the Camden Transportation Center.*fn1 The DRPA retains property rights
that give it use of certain space in the Camden Transportation Center, including offices, maintenance areas, police quarters, and a passenger processing area. The DRPA also contributed $274,000 toward the construction of the CTC -- a small portion of its more than twenty million dollar cost.
The agreements between the DRPA and the City recite that the CTC will be a facility of the City of Camden, not of the DRPA; nor will the DRPA have responsibility for the CTC's finances, construction, or maintenance. The CTC is being built by, and will be owned by, the City of Camden; it will be operated and maintained by the City and by the New Jersey Transit Authority.
The City is building two staircases and one escalator to connect the ground floor of the CTC, where buses and cars will deposit passengers, to the train platform of the PATCO Broadway Station. PATCO and the DRPA have given the City permission to pierce their transportation corridor and to make whatever structural changes are necessary to enable the staircases and the escalator to be installed.
Camden sought approval of its construction plans from the New Jersey Department of Community Affairs (DCA), the agency of state government having jurisdiction to review development plans of this type for compliance with State codes. In its review, the State requested that in order to satisfy State regulations regarding accommodations to serve the handicapped, the building plans be altered to provide an elevator from the street level terminal concourse to the subway platform. PATCO objected to this requirement, but after consultation with the City sought to negotiate a solution with DCA under which the City and PATCO would make provision for the future installation of such an elevator. They proposed that
CTC construct framing with structural steel, leaving an opening at the main floor of the terminal for a future elevator shaft, and leaving provision at the train level for the elevator machinery. Negotiations concerning the exact location of the proposed elevator shaft continued through the summer of 1985.
In August 1985, EPVA sued the City and the DRPA to require the installation of an elevator. The EPVA alleges that under N.J.S.A. 52:27D-129b the construction by the DRPA of any structure or building in the State of New Jersey is subject to the requirements of the State Uniform Construction Code Act (the Code), N.J.S.A. 52:27D-119 to -141. The Code requires that building plans be reviewed and approved prior to the issuance of a building permit. N.J.S.A. 52:27D-130, 131. As a part of the review of a permit application, which includes review of the building plans, the governmental enforcing agency must ensure that, among other things, the requirements of the Code have been met. N.J.S.A. 52:27D-131 a.
If the local enforcing agency does not have the appropriate capacity to review a particular class of structure, as in the case of the CTC, the Department of Community Affairs (DCA) acts as the enforcing agency for plan-review purposes. N.J.A.C. 5:23-3.11(a)(4). Under N.J.S.A. 52:32-5, the DCA itself promulgates regulations prescribing facilities for the physically handicapped. The CTC, a public transportation terminal or station, is a "public building" for purposes of the Handicapped Access Law, N.J.S.A. 52:32-6(a); thus, its construction plans are required to provide for facilities for the physically handicapped. N.J.S.A. 52:32-4. The DCA Commissioner, who is required by N.J.S.A. 52:32-5 to promulgate guidelines for such facilities, adopted the Department of Treasury's Barrier-Free Design Regulations, N.J.A.C. 17:19A-1. The Commissioner has since revised these regulations. See D.I.A.L. v. Clifton Construction Bd. of Appeals, 218 N.J. Super. 74, 77 n. 1 (1987).
Plaintiff also alleged that the Camden Transportation Center is a "place of public accommodation" within the meaning of the
New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, which defines that term to include "any public conveyance operated on land or water, or in the air, [and] any stations and terminals thereof." N.J.S.A. 10:5-5(l). Under LAD no person may be denied access to a place of public accommodation "because such person is or has been at any time handicapped." N.J.S.A. 10:5-4.1.
The City of Camden claimed that it wanted to install the elevator but that the DRPA and PATCO had prevented it from doing so. The City filed a third-party complaint against the DCA seeking issuance of the necessary building permits and asked that the DCA be bound by the trial court's determination in the case. The DRPA and PATCO moved for summary judgment on the basis that the Barrier-Free Design Regulations and the requirement for construction embraced by the LAD could not be applied to them. Plaintiff, EVPA, filed a cross-motion for summary judgment, seeking the installation of the elevator based on the State Uniform Construction Code and the Barrier-Free Design Regulations.
The trial court concluded that the Uniform Construction Code mandated the installation of the elevator. 220 N.J. Super. at 588. With regard to the applicability of the Uniform Construction Code, the court concluded that a distinction could be made between "internal" and "external" regulation of the conduct of bi-state agencies. The Chancery Division thus held that
[c]ompliance with the [Code] and the Law Against Discrimination is a valid exercise of the sovereign power of the State of New Jersey to preserve the safety and general welfare of the public. Compliance with those enactments does not, in anywise, affect the inner workings of the interstate agency. They provide for access to the CTC by the general public. The general public is not a homogen[e]ous unit; it includes the handicapped. It consists of individuals who are sure footed, as well as those who are lame, sight or hearing impaired, and those confined to a wheelchair. The DRPA is, therefore, required to provide ...