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State v. Wallach

October 16, 1996

STATE OF NEW JERSEY, PLAINTIFF,
v.
MICHAEL A. WALLACH, RICHARD E. SMITH, ROBERT E. REGELING AND ROBERT G. KINCAID, DEFENDANTS.



Kole, J.A.D., Retired and Temporarily Assigned on Recall

The opinion of the court was delivered by: Kole

CIVIL ACTION

KOLE, J.A.D., Retired and Temporarily Assigned on Recall

All of the defendants in this case who have been charged with violations of N.J.S.A. 39:4-75, driving overweight vehicles on intrastate bridges, have moved to dismiss the summonses against them. They claim that the posting of the maximum weight signs relating to the bridge involved herein had not been approved by the State Commissioner of Transportation, allegedly as required by N.J.S.A. 39:4-202, 39:4-8 and Ufheil v. Boro. of Oradell, 123 N.J. Super. 268, 302 A.2d 533 (App. Div. 1973). The bridge, Glen Gray Road Bridge, had collapsed as a result of the crossing thereof by the last of a five-truck convoy on October 6, 1995.

The motions are denied. For the reasons that follow it is clear that no such approval is required.

On September 11, 1985, the Bergen County Bridge Engineer requested three new load or weight limit signs for the Glen Gray Road Bridge, a county bridge, one at each end of the bridge and one at the intersection of Ramapo Valley Road, which is also known as Route 202. The bridge is in Oakland. As a result, the Bergen County Board of Freeholders, on September 20, 1985, authorized the posting of such signs by resolution.

In 1985, the bridge weight statute, N.J.S.A. 39:4-75, required posting of maximum gross weight signs upon or immediately adjacent to the bridge in a conspicuous place. Despite there being no statutory requirement for such a sign at that time, Bergen County nevertheless authorized the posting of a sign at or near the intersection of Route 202 and Glen Gray Road.

As early as October 2, 1959, the Division of Motor Vehicles of the Bureau of Traffic Safety determined, in accordance with an informal opinion of the Attorney General's office, that the Director of Motor Vehicles had no responsibility, under N.J.S.A. 39:4-202 or 39:4-8, with respect to approval of posting of weight limit signs on bridges.

N.J.S.A. 39:4-202 provides that no resolution enacted or established "under authority of this article [Article 21 of Title 39]" shall be effective until submitted and approved by the director (later changed to Commissioner of Transportation), as provided in section 39:4-8. Article 21 deals with the powers of municipalities, counties and highway commissioners and sets forth what each of these entities are empowered to enact concerning motor vehicle regulations. N.J.S.A. 39:4-8 provides that no resolution or ordinance "concerning, regulating or governing traffic or traffic conditions" enacted by any body "having jurisdiction over highways" shall be effective unless approved by the director.

The 1959 Attorney General's opinion, followed by the Division of Motor Vehicles, determined that there was no provision in Title 39 concerning the powers of the county over its bridges. It pointed out that those powers were contained in Title 27, which relates to the construction, operation and maintenance of viaducts and bridges in the county, and requires the county to keep these facilities in repair and safe condition for public travel (N.J.S.A. 27:19-1); that N.J.S.A. 27:19-13 provides that the county freeholders shall make rules and regulations for the protection and use of such bridges and viaducts under its care and control; that the authority inherent in the freeholders to cause the posting of necessary signs results from a positive direction of Title 27; and that the Motor Vehicle Director had no control over such judgment and actions by them. The Attorney General's opinion concluded, as follows:

Therefore, it is obvious that there is no requirement that he approve any such rules and regulations, for as pointed out in your memorandum, the simple mechanics of the operation present an almost impossible situation wherein the Director would then approve a regulation over which he has no knowledge or background, and over which he has no control. Thus it follows that R.S. 39:4-8 and 39:4-202 do not control the situation.

Contrariwise, the enforcement of those regulations is a function of the Motor Vehicle Division for R.S. 39:4-75 and 76 provide penalties for the failure to observe those signs. This, however, is not really as paradoxical as it may seem. The passage of vehicles over roads and highways is the concern of the Director in his responsibility of the regulation of traffic, but the posting of the notices is the responsibility of the freeholders to promote the safety and proper maintenance of the bridges, an entirely different matter.

Therefore, you are advised that the Director should in no event take upon himself the responsibility of approving any such regulations or ordinances as are herein mentioned.

On September 18, 1972, the Attorney General's office, again in an informal opinion, affirmed the earlier 1954 opinion even with respect to posting speed limit signs on county bridges. He ...


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