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D.I.A.L. Inc. v. New Jersey Department of Community Affairs

Decided: March 3, 1992.


On appeal from the New Jersey Department of Community Affairs.

Michels, Havey and Conley. The opinion of the court was delivered by Havey, J.A.D.


The opinion of the court was delivered by


Appellants challenge certain amendments to the Barrier-Free Subcode, N.J.A.C. 5:23-7.1 to -7.116, of the State's Uniform Construction Code adopted by the Commissioner, Department of Community Affairs (DCA) on June 15, 1990. Specifically, appellants seek invalidation of the following regulations: (1) N.J.A.C. 5:23-7.95 (adaptable units: kitchens); (2) N.J.A.C. 5:23-7.3(a)6 (exemption for floor or spaces containing only mechanical equipment); (3) N.J.A.C. 5:23-7.8(e) (exemption for

alteration of historic buildings); (4) N.J.A.C. 5:23-7.18(b)2 (raised/depressed areas in restaurants, nightclubs and dance halls), and (5) N.J.A.C. 5:23-7.9(c) (access standards for places of incarceration).*fn1

On September 5, 1989, the Commissioner of the DCA proposed the pertinent amendments to the Barrier-Free Subcode and a public hearing on the proposal was conducted on October 2, 1989. Oral and written comments were received by the DCA concerning the proposed amendments. The DCA adopted the amendments on June 15, 1990, effective August 6, 1990. See 22 N.J.R. 2267(a). D.I.A.L., a nonprofit organization concerned with the ability of the physically disabled to live independently, and two individuals, Norman Smith and Bea Warrington, filed this appeal challenging the adoption of the amendments. They argue that the amendments violate the statutory scheme intending to afford physically disabled persons relief from architectural barriers "that have virtually imprisoned them in the past." They also assert that the "published reasons" for revising N.J.A.C. 5:23-7.95 are "so vague as to violate the Administrative Procedure Act" (APA), N.J.S.A. 52:14B-1 to -21. Finally, appellants advance an array of challenges to the specific amendments.

The Handicapped Access Law (Act), N.J.S.A. 52:32-4 to -16, requires that all plans and specifications for the construction of any public building must provide facilities for the physically handicapped, to the extent deemed feasible by the contracting authority. N.J.S.A. 52:32-4. The enforcing agency is authorized to grant exceptions from the specific requirements and specifications of the Act in cases of practical difficulty, but only when it is clearly evident that equivalent facilitation and protection of the physically handicapped remain

intact. N.J.S.A. 52:32-8. Such exceptions apply only to the specific requirement in question, and do not extend to all requirements of the standards and specifications mandated by the Act. N.J.S.A. 52:32-9. The DCA has the duty to promulgate regulations prescribing the kinds, types and quality of public facilities for the physically handicapped, N.J.S.A. 52:32-5, and administration and enforcement of the Act is to be in accordance with the State Uniform Construction Code Act (UCC Act), N.J.S.A. 52:27D-119 to -141. See N.J.S.A. 52:32-7.

The UCC Act requires the Commissioner of the DCA to adopt a State Uniform Construction Code for the purpose of regulating the structural design, construction, maintenance and use of buildings or structures to be erected, and the alteration, renovation and repair of buildings or structures already erected. N.J.S.A. 52:27D-123. Under the UCC Act, the Commissioner is authorized to adopt a "Barrier-Free Subcode" to ensure that adequate features are available in buildings and structures so as to make them accessible to and usable by the physically handicapped. N.J.S.A. 52:27D-123b. A new Barrier-Free Subcode was adopted on October 10, 1986, which provided for comprehensive standards for the kinds, types, and quality of facilities for the handicapped. N.J.A.C. 5:23-7.1 to -7.116.

In 1986, several individuals, including appellant Norman Smith, challenged various provisions of the Barrier-Free Subcode. In an unreported opinion, Community Health Law Project v. New Jersey Dep't of Community Affairs, A-1496-86T7 (June 10, 1988), certif. denied, 113 N.J. 343, 550 A.2d 456 (1988) (CHLP), we set aside several of the challenged provisions, including the then extant regulations pertaining to the exemption for floors or spaces containing mechanical equipment, and the provision regulating renovations to historic buildings. The DCA addressed our concerns regarding these regulations by proposing amendments to the regulations found invalid

by us in CHLP, as well as proposing other regulations now being challenged.

We must consider the challenge to each amendment applying the following well-settled principles. An agency's grant of authority to promulgate regulations is to be liberally construed in order to enable the agency's accomplishment of its statutory goals. In re Solid Waste Util. Cust. Lists, 106 N.J. 508, 516, 524 A.2d 386 (1987). Also, "[w]e accord substantial deference to the regulations adopted by administrative agencies, based on our recognition that certain subjects are within the peculiar competence of that agency." In re Amendment of N.J.A.C. 8:31B-3.31, 119 N.J. 531, 543, 575 A.2d 481 (1990). Thus, agency regulations are accorded a presumption of reasonableness, id. at 544, 575 A.2d 481, and we may not substitute our judgment for the expertise of the agency. Dougherty v. Dep't of Human Serv., 91 N.J. 1, 6, 449 A.2d 1235 (1982). Moreover, the burden is on the party challenging the regulation to establish its invalidity. In re Amendment of N.J.A.C. 8:31B-3.31, 119 N.J. at 544, 575 A.2d 481; Council of N.J. State College Locals v. State of N.J., 251 N.J. Super. 577, 583, 598 A.2d 1237 (1991). A regulation will be set aside only if it is arbitrary or capricious, or if it alters the terms of the statute it purportedly effectuates, or frustrates the policies advanced by the statute. In re Amendment of N.J.A.C. 8:31B-3.31, 119 N.J. at 544, 575 A.2d 481; In re Repeal of N.J.A.C. 6:28, 204 N.J. Super. 158, 160-61, 497 A.2d 1272 (App.Div.1985). Thus, if the regulation does not frustrate the policies embodied in the enabling statute, a rebuttable presumption of validity attaches to the regulation. In re Weston, 36 N.J. 258, 263, 176 A.2d 479 (1961), cert. denied sub nom., Weston v. New Jersey State Bd. of Optometrists, 369 U.S. 864, 82 S. Ct. 1029, 8 L. Ed. 2d 84 (1962).

Also, we generally place considerable weight on the construction of a statute given by the agency charged with enforcing it, Passaic Daily News v. Blair, 63 N.J. 474, 484, 308 A.2d 649 (1973),

and we recognize that agencies must be flexible and responsive to changing conditions in adopting regulations. Radiological Soc'y v. New Jersey State Dep't of Health, 208 N.J. Super. 548, 560, 506 A.2d 755 ...

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