On appeal from the New Jersey Department of Community Affairs.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Fuentes and Simonelli.
On November 30, 2006, the Department of Community Affairs (DCA) adopted an interpretive regulation, N.J.A.C. 5:23-9.3, which determined that recreational park trailers are subject to the State Uniform Construction Code (Code), adopted under the authority of the Uniform Construction Code Act (UCC Act), N.J.S.A. 52:27D-119 to -141. On June 17, 2008, the DCA adopted a new set of regulations, which established standards for the design, manufacture, and installation of recreational park trailers, N.J.A.C. 5:23-4D.
Appellants, who are a seller of recreational park trailers, the owner of a campground in which recreational park trailers are installed, and the owners of a recreational park trailer, challenge the validity of these regulations on three grounds:
(1) the UCC Act does not confer authority upon the DCA to regulate recreational park trailers under the Code; (2) the DCA's regulation of recreational park trailers is preempted by the National Manufactured Housing Construction and Safety Standards Act (Manufactured Housing Act), 42 U.S.C.A. §§ 5401-5426, and the regulations adopted thereunder; and (3) the DCA adopted these regulations without conducting the analysis required by the Regulatory Flexibility Act, N.J.S.A. 52:14B-16 to -21. We reject appellants' arguments and affirm the validity of N.J.A.C. 5:23-9.3 and N.J.A.C. 5:23-4D.
The applicable administrative regulation defines a "recreational park trailer" as a trailer type unit that is primarily designed to provide temporary living quarters for recreational, camping, or seasonal use, that meets the following criteria:
1. Is built on a single chassis mounted on wheels;
2. Has a gross trailer area not exceeding 400 square feet (37.15 square meters) in set-up mode, and, if less than 320 square feet (29.72 square meters) in the setup mode, would require a special movement permit for highway transit; and
3. Is certified by the manufacturer as complying with ANSI A119.5. [N.J.A.C. 5:23-4D.2.]
Before adoption of the regulations challenged in this appeal, the DCA issued a bulletin on January 15, 1994, called Bulletin 93-6, which advised local construction officials that recreational park trailers, referred to in that document as "park trailers" or "park models," are subject to regulation under the Code. This document stated in part:
The Department has become aware that certain structures, variously called "park trailers" or "park models" are being bought, sold, installed and used as vacation living quarters, temporary residences, or, occasionally, as primary residences, without having met applicable federal or state standards, and without bearing federal or state labels. This is a violation of the Uniform Construction Code (UCC).
Park trailers are sometimes referred to as recreational vehicles ("RVs") but they are not vehicles. True recreational vehicles are not subject to the Uniform Construction Code....
A park trailer is closed construction, which means that it arrives at the site already assembled so that most building, plumbing, mechanical and electrical systems cannot be inspected because they are already concealed. It is intended for permanent or temporary residential use and is not a vehicle. Such a structure must be built and inspected to meet state or federal standards. The required state or federal label is proof that it meets these standards. It is subject to the Uniform Construction Code and should be treated as such in all respects.
Park trailers may be found sited in campgrounds, in mobile home or manufactured home parks or on individual lots. Wherever they are and whether they are used for vacation purposes or as permanent residences, they are subject to the requirements of the Uniform Construction Code....
A code official should not allow the installation of park trailers or park models which do not bear a state approved label (RVIA label) or HUD labels. Permits should be denied and the Department should be notified if such installation is attempted....
....... Through the enforcement process, if a corrective action is necessary to bring unlabeled units to a safe standard, the plan of action will include the requirement to secure a permit. A corrective action plan will focus on specific life safety issues and will be made available to construction officials who are impacted by the location of such existing units in their jurisdiction. Local construction officials are responsible to ensure that any site specific structures associated with the installation of existing park models have not resulted in any unsafe conditions.
Despite the issuance of Bulletin 93-6, the DCA's policy regarding the regulation of recreational park trailers under the Code was not formalized until adoption of the regulations challenged by this appeal.
In proposing the adoption of N.J.A.C. 5:23-4D, the DCA stated:
Commonly referred to as "park models," recreational park trailers are types of recreational vehicles that are installed in recreational vehicle parks or condominium campgrounds based upon long term ground leases, or ownership in the case of condominium campgrounds. Site built appurtenances such as decks, florida rooms and others are often ...