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Builders League of South Jersey, Inc. v. Borough of Pine Hill

January 9, 1996


On appeal from Superior Court of New Jersey, Law Division, Camden County.

Approved for Publication January 9, 1996. As Corrected February 26, 1993.

Before Judges Havey, Conley and Braithwaite. The opinion of the court was delivered by Havey, P.j.a.d.

The opinion of the court was delivered by: Havey

The opinion of the court was delivered by HAVEY, P.J.A.D.

Defendants, the Borough of Pine Hill and its governing body, appeal from a summary judgment declaring invalid the Borough's ordinance which requires, as a condition for the issuance of a building permit, the payment of past-due real estate taxes on the subject property. The motion Judge concluded that the Uniform Construction Code Act (UCCA), N.J.S.A. 52:27D-119 to -141, preempts the ordinance. The Judge's Conclusion is consistent with a 1980 Law Division opinion which so held. Home Builders League v. Township of Evesham, 174 N.J. Super. 252, 262, 416 A.2d 81 (Law Div. 1980).

During oral argument before us defendants relied exclusively upon N.J.S.A. 40:52-1.2 (Section 1.2), which was enacted after the Home Builders decision and which, defendants claim, provides express statutory authority for the Borough's ordinance. Section 1.2 provides:

Except as provided herein, the governing body of a municipality may, by ordinance, as a condition for the issuance or renewal of any license or permit issued by, or requiring the approval of, the municipality, require that the applicant, if he is the owner thereof, pay any delinquent property taxes or assessments on the property wherein the business or activity for which the license or permit is sought or wherein the business or activity is to be conducted. The ordinance may also provide for the revocation or suspension of a license or permit when any licensee, who is an owner of the property upon which the licensed business or activity is conducted, has failed to pay the taxes due on the property for at least three consecutive quarters. Upon payment of the delinquent taxes or assessments, the license or permit shall be restored. The provisions of this section shall not apply to or include any alcoholic beverage license or permit issued pursuant to the "Alcoholic Beverage Control Act," . . . .

[Emphasis added.]

Defendants focus on the words "any . . . permit" and "business or activity" in arguing that Section 1.2 includes building "permits" required for the "activity" of construction, and that this specific delegation of power cures any pre-emption objection based upon the UCCA. See Wildwood Storage Center, Inc. v. Mayor and Council of Wildwood, 260 N.J. Super. 464, 474, 616 A.2d 1331 (App. Div. 1992). *fn1 Defendants concede that, if Section 1.2 does not apply, the ordinance is pre-empted by the UCCA. Therefore, we do not address the pre-emption issue.

The motion Judge concluded, and we agree, that Section 1.2 does not confer authority upon a municipality to require payment of real estate taxes as a condition for the issuance of a building permit. The Section, adopted in 1987 (L. 1987, c.174, § 1), is part of Chapter 52 which is captioned "Licenses." The leading Section of that Chapter, N.J.S.A. 40:52-1, is entitled "Power to license." That Section delegates to municipalities the power to "make . . . and enforce ordinances to license and regulate" specific businesses and activities such as peddlers, hotels, rented housing or living units, theaters, and specified merchants and commercial establishments. N.J.S.A. 40:52-1g, for example, permits the regulating and licensing of stores which sell "goods and chattels of every kind, and all other kinds of business conducted in the municipality . . . and the places and premises in or at which the business is conducted and carried on." (Emphasis added.) N.J.S.A. 40:52-2 authorizes the municipality to fix fees for these "licenses, which may be imposed for revenue." The overriding purpose of the two Sections, read together:

was to authorize municipalities to license and regulate, as police measures for the public health, safety, morals or welfare, the local businesses described therein, and only incidentally to impose on the businesses thus licensed and regulated license fees for revenue which may, at least within reasonable limits, exceed the regulatory costs.

[ Salomon v. City of Jersey City, 12 N.J. 379, 390, 97 A.2d 405 (1953) (emphasis added).]

In short, it is clear that Chapter 52 is intended to authorize the licensing of specifically enumerated merchants and businesses for the purposes of regulating them and generating revenue.

Section 1.2 is a supplement to N.J.S.A. 40:52-1. See 1A Norman J. Singer, Sutherland Statutory Construction § 21.03 (5th ed. 1993). Therefore, "the new act [Section 1.2] will be interpreted in para materia with existing law and the location of the new statute in the code will necessarily be considered as some indication of what is the related legislation." Ibid. Consequently, the sense of the Section is to be gleaned not only from its objective and the subject matter which it covers, but also from its "contextual setting." Giles v. Gassert, 23 N.J. 22, 33, 127 A.2d 161 (1956); see also In re Rehabilitation of Mut. Benefit Life Ins. Co., 258 N.J. Super. 356, 375, 609 A.2d 768 (App. ...

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