New Jersey Builders Ass'n v. Coleman
New Jersey Builders Ass'n v. Coleman
Opinion of the Court
The opinion of the court was delivered by
Appellant N.J. Builders Association (NJBA) challenges regulations adopted by the Commissioner of the Department of Community Affairs (DCA) which amend the state energy sub-code {N.J.A.C. 5:23-3.18) by replacing its thermal efficiency standards with standards required by the U.S. Farmers Home Administration (FmHA). See 19 N.J.R. 1793, effective October 5, 1987. NJBA argues that DCA’s authority under the State Uniform Construction Code Act (UCCA), N.J.S.A. 52:27D-119 et seq., is limited to adopting as a subcode the entire model code of nationally recognized organizations and that it lacks authority to substantively amend the subcodes.
Respondent State of New Jersey, Department of Community Affairs (DCA) does not deny that it might lack authority under the UCCA to directly amend a subcode once adopted. Rather, DCA claims that it obtained the authority it needed to modify
Administrative agencies have limited jurisdiction and actions beyond an agency’s jurisdiction are ultra vires. D.S. v. East Brunswick Tp. Bd. of Ed., 188 NJ.Super. 592, 597 (App.Div. 1983) certif. den. 94 N.J. 529 (1983). We recognize that a finding of ultra vires is disfavored, see e.g., N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 561 (1978); In re N.J. Board of Public Utilities, 200 N.J.Super. 544, 557 (App.Div. 1985). Notwithstanding this, after carefully considering the arguments and briefs of counsel, we hold that the DCA Commissioner exceeded his authority under N.J.S.A. 52:27D-123 by substantively amending the State’s energy subcode.
N.J.S.A. 52:27D-123 empowers the DCA Commissioner to adopt a State Uniform Construction Code consisting of sub-codes which “may be adopted individually by the commissioner as he may from time to time consider appropriate.” N.J.S.A. 52:27D-123(b). It further provides that:
.. .subcodes shall be adoptions of the model codes of the Building Officials and Code Administrators International, Inc., the National Electrical Code, and the National Standard Plumbing Code, provided that for good reasons, the Commis-
We will rely on a national process, a national code which has the procedure for continuous updating. We will be members of the process for updating. There will be representation there, as well as from other states in the discussions of what amendment should be provided each year. We will be a part of that discussion and we will rely on the outcome of that essentially democratic process.
At a subsequent point in his statement, Willis was asked, “What if New Jersey then objected to a feature of the BOCA code, ... can we [New Jersey] make any modifications then?” Willis responded: “No. The options provided under the bill would be simply to reject the entire subcode and adopt a new subcode under the same procedure provided here-with good reason promulgated by the department.”
In September 1977 the Legislature amended UCCA to include a mechanism for recommending changes or amendments to those national model codes that had been adopted as subcodes by the DCA Commissioner. Significantly, Senate Bill S-1345 as originally proposed authorized the Commissioner to amend the state’s uniform construction code. The proposed amendments
Accordingly, it appears indisputable that the Legislature intended to limit the DCA Commissioner’s authority under the UCCA to adopting a model code in its entirety and that any amendments to the subcode were to occur through a national process.
BOCA’s Basic/National Energy Conservation Code was adopted by DCA in 1977 and by DOE, effective August 13, 1978. The October 5 regulations on appeal here delete BOCA’s thermal efficiency standards and replace them with higher standards required by FmHA. Thus, with these regulations, the DCA Commissioner is directly amending the energy sub-code, which is in excess of his authority under the UCCA. Where a rule exceeds the scope of the authority vested in the agency, it is illegal and void. Common Cause v. N.J. Election Law Enforce. Comm’n, 74 N.J. 231 (1977); D.S. v. East Brunswick Tp. Bd. of Ed., supra, 188 N.J.Super. at 597.
Additionally, we are not persuaded by DCA’s argument that it obtained the authority it needed to amend the energy subcode from DOE. To sustain this argument, we would have to find that the Legislature empowered DOE to directly amend New Jersey’s energy subcode and we do not believe that to be the case.
When DOE was created by the Legislature on July 11, 1977, the Legislature transferred to it “all the functions, powers and duties heretofore exercised by the Department of Community
We deem the October 5, 1987 regulations, promulgated at 19 N.J.R. 1793, and contained in N.J.A.C. 5:23-3.18, invalid insofar as they contain provisions replacing BOCA's thermal efficiency standards with those required by FmHA. To the extent declared invalid the October 5, 1987 regulations shall not be enforced, and the BOCA thermal efficiency standards shall
We are not called upon here to express our view on the ability of DCA to make changes required either as a matter of law or for the purpose of properly integrating codes that otherwise conflict with one another or overlap in jurisdiction. It has been argued elsewhere that the authority to make such non-discretionary changes is inherent in the statutory mandate to adopt a uniform-harmonious system of codes. See Metzger, “The Uniform Construction Code Act: A Progress Report," 99 N.L.J. 929 (1976).
Willis was testifying at a Senate Labor, Industry and Professions Committee hearing on S-1187, the companion bill to A-1299, the bill adopted by the Legislature. The provisions in the two bills were essentially identical insofar as DCA’s authority to adopt subcodes was concerned.
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