On appeal from Superior Court of New Jersey, Law Division, Middlesex County and Department of Community affairs.
J. H. Coleman, Muir, Jr. and Skillman. The opinion of the Court was delivered by Skillman, J.A.D.
The parties to these seven consolidated appeals are public agencies and officials with statutory responsibilities for the enforcement of the Uniform Construction Code (the Code), N.J.S.A. 52:27D-119 et seq. Appellant Edison Township is a local enforcing agency and appellant Rainford is Edison's construction official. See N.J.S.A. 52:27D-126. Respondent Department of Community Affairs (DCA) has general authority to enforce the Code and to supervise local enforcing agencies. See N.J.S.A. 52:27D-124. This appeal involves the DCA's exercise of its authority under N.J.S.A. 52:27D-124(k) to supplant Edison's code enforcement with respect to two specific projects and to monitor Edison's compliance with its enforcement responsibilities under the Code.
Appellants' resistance to the DCA's assertion of its supervisory powers over code enforcement in Edison has generated a lengthy and complex procedural history. As a result of information DCA received regarding possible code violations at two condominium development projects called Aspen at Edison and Edison Glen, it issued an order on June 3, 1988 directing appellants to produce their original files relating to these
projects. DCA's review of the files produced by appellants did not allay its concerns. Consequently, it issued a second order on June 9, 1988 assuming regulatory jurisdiction over these two projects and directing appellants to turn over all plans, permits, inspection records, and other documents pertinent to the projects.
On June 13, 1988, Edison filed a prerogative writ action in the Law Division, alleging that DCA's removal of the municipality's files relating to the Aspen at Edison and Edison Glen projects under the authority of its June 3, 1988 order was unlawful and seeking the return of those files. On June 20, 1988, the Law Division transferred Edison's action to this court based upon our exclusive jurisdiction to review the actions of a state agency.
While Edison's prerogative writ action was pending in the Law Division, DCA filed an action in the Chancery Division on June 17, 1988, alleging that appellants had refused, in violation of DCA's June 9th order, to relinquish jurisdiction and to turn over their files pertaining to the Aspen at Edison and Edison Glen projects, and seeking enforcement of that order. On July 29, 1988, the Chancery Division entered judgment in favor of DCA directing appellants to comply with the June 9th order. Edison and Rainford each filed separate notices of appeal from both DCA's June 9th order and the final judgment of the Chancery Division enforcing that order.
During the pendency of the Chancery Division action, Edison and Rainford requested DCA to afford them a hearing before the Office of Administrative Law with respect to the June 9th order. The Commissioner of DCA denied these requests by separate, virtually identical final decisions dated August 9, 1988, which concluded that DCA's assumption of regulatory jurisdiction over the two projects did not give rise to a "contested case" entitling Edison of Rainford to a hearing before the
Office of Administrative Law. The Commissioner's decisions stated in pertinent part:
I further find that the Department has exercised a statutory right of preemption with regard to a specific project in accordance with N.J.S.A. 52:27D-124(k). Since the enactment of N.J.S.A. 52:27D-124(k), no municipality has had the right to the exclusive exercise of enforcement powers under the State Uniform Construction Code Act within its borders and an action by the Department pursuant to its right of preemption, including the obtaining of documents in connection with such preemption, does not constitute an intrusion upon the municipality's rights, and certainly not upon the rights of the Construction Official. [Edison and its Construction Official] lack ...