Jones v. Buford , 71 N.J. 433 ( 1976 )

The opinion of the court was delivered by

Mountain, J.

Plaintiff, then a tenant residing in an apartment in Newark, commenced an action in lieu of prerogative writ to compel defendant, Director of the Newark Department of Health and Welfare, to act as statutory agent for her landlord, pursuant to N. J. S. A. 26:3-31(p).¹ She sought to have defendant, as such agent, hire repairmen and procure materials to repair the broken boiler in the building, in order to restore adequate heat to her apartment.

Some underlying facts should be stated. There is no doubt that the boiler in the building was broken and that plaintiff was receiving neither heat nor hot water. A representative of the landlord testified that he had engaged a man to do the necessary repair work but that its efficacy had been prevented1 by vandalism. He further stated that plaintiff was the only one of several tenants in the building who was paying rent and that he was financially unable to make further repairs. The accuracy of these representations was conceded by plaintiff’s counsel. At some time prior to the filing of the petition for certification in this action, the municipal authorities declared the building unfit for human habitation and ordered it vacated. Plaintiff was relocated by the Newark Housing Authority at city expense pursuant to the Relocation Assistance Act, N. J. S. A. 20:4-l, et seq. Because of the inherent importance of the case and the apparent need for a dispositive determination of the issue presented, we have determined not to dismiss the action as moot.

The trial court decided it lacked power to afford the relief sought, and dismissed the complaint. The Appellate Division reversed, 132 N. J. Super. 209 .(1975), and we granted defendant’s petition for certification. 68 N. J. 151 (1975). We now reverse and reinstate the judgment of the trial court.

Local boards of health are governmental. agencies created for the purpose of exercising locally the police powers of the State with respect to matters of public health. Zullo v. Board of Health of Woodbridge Township, 9 N. J. 431, 435 (1952); Board of Health of Township of Scotch Plains v. Pinto, 57 N. J. 212, 214 (1970). They derive their powers from State legislation. Grosso v. Paterson, 55 N. J. Super. 164, 171 (Law Div. 1959). Such legislation may take different forms. For present purposes statutes according powers to local boards of health may be thought of as being either enabling or self-executing. Enabling legislation, whether concerned with a board of health, a municipality or some other legislatively created entity, takes the form of a grant of an optional or elective power. The board of health, municipality or other entity is enabled, by the legislative grant, to avail itself of the particular power if it chooses to do so. The method of implementation, whether by ordinance, resolution or otherwise, is sometimes specified in the enabling act. If so, it generally must be followed. If there is no specification, the subordinate entity will often have a choice of means. The point to be emphasized is that enabling legislation requires some appropriate form of action by the board of health or municipality before it can become effective; absent such action it has no local vitality. The point was well put by Justice (then Judge) Francis, speaking for the Appellate Division with respect to our zoning enabling act.

A municipality is a political subdivision of the State, owing its existence and the extent of its authority to the will of the Legislature. When functioning within the orbit of the statutorily delegated power generally its actions are legislative in character; and the decision to act by ordinance or otherwise in the area of local government is generally one of discretion, unless a particular performance is imposed as an imperative by the enabling statute. Thus, although the authority exists to adopt a zoning ordinance, the determination to do so or to refrain therefrom rests in the discretion of the governing body. Courts have no general supervisory power over the exercise of that discretion. The legislative branch of the government and its subdivisions acting within their constitutional and statutory sphere are just as independent of us as we are of them. Even if it could be said that a certain ordinance would be very much in the public interest and welfare, the courts will not issue their mandate to compel the legislative body to enact it; nor do we hav.e the power to avoid the effects of inaction in that domain, as distinguished from the situation where there is an express or implied duty to act, [citing cases]. We cannot enter the committee room and interfere with or substitute our judgment for that of the governing body, [citing authorities] The remedy in such case must be with the electorate. Responsibility to a constituency and a sense of public duty are the only incentives which can prompt discretion in any legislative action. [Finn v. Wayne Township, 45 N. J. Super. 375, 379 (App. Div. 1957)]

Self-executing legislation, on the other hand, requires no act of implementation at the local level. The statute, proprio vigore, bestows a power, or in some cases an obligation, directly upon the local agency of government.

Local boards of health possess broad general powers » to enact ordinances and to make rules and regulations in the interest of protecting and improving public health. N. J. S. A. 26 :3-64. Additionally they are authorized, again by the enactment of ordinances and the adoption of rules and regulations, to address certain particular areas of concern in this field. The most important statute granting this latter power is N. J. S. A. 26:3-31, a subsection of which has been quoted above. This grant of power — to deal with specific problems identified in the statute — has been held not to limit the delegation of general powers as set forth in the former act. Bd. of Health of Weehawken Twp. v. N. Y. Central R. R. Co., 4 N. J. 293, 299 (1950). Significant to the issue before us is the fact that with respect to each grant of power, the Legislature has chosen to employ enabling acts. In each case local action on the part of a board of health is needed to implement the legislative grant. Just as in the case cited above, Finn v. Wayne Township, it was found that a municipality might or might not, as it saw fit, adopt an ordinance pursuant to the zoning enabling act, so too, a local board of health may or may not adopt an ordinance specifically implementing any particular power made available to it by the Legislature. This result follows, in each case, from the language of the statutory grant.

In surveying legislation in the field of public health it will be seen that the Legislature has, from time to time, resorted both to the enabling and self-executing types of statute. For instance, with respect to the power to abate nuisances, although a board of health may, by ordinance, define what a nuisance is, N. J. S. A. 26:3-45, and provide means for its abatement, N. J. S. A. 26:3-46 et seq., it is also empowered to act even in the absence of such implementing legislation at the local level.

The power given to the local board to remove and abate nuisances, sources of foulness, or causes of sickness hazardous to the public health, shall not depend upon whether the board has exercised its power to pass, alter, or amend ordinances in relation to the public health. [N. J. S. A. 26:3-47]

Similarly, legislation providing for the adoption of a State Sanitary Code and directing that it be enforced by each local board of health, requires nothing at the local level for its activation. The obligation on the part of the local health authorities to see to its enforcement derives directly from the legislation giving the provisions of the State Sanitary Code the force and effect of law. N. J. S. A. 26 :1A-9.

On the other hand, there is much legislation in the field of public health which is of the enabling variety. As we have indicated, the statute before us must be so classified. We repeat its opening clause:

The local board of health shall have power to pass, alter or amend ordinances and malee rules and regulations in regard to the public health within its jurisdiction, for the following purposes: [N. J. S. A. 26:3-31; emphasis added]

On its face the act is clearly of the enabling kind. The language is permissive and leaves full discretion with each board of health to enact ordinances or not, as it sees fit, with respect to any of the specific areas of concern detailed in the act.

We think it important, also, that this act not be read or considered in isolation, but rather in the framework of all housing legislation that seeks to give remedial relief to tenants against landlords who permit undue deterioration of buildings or who fail to provide satisfactory living conditions, as by neglecting to furnish adequate heat. Municipalities, for instance, have broad powers to cause dilapidated or dangerous structures to be repaired, closed or demolished, N. J. S. A. 40:48-2.3, and to take appropriate action upon a determination that a building is unfit for human habitation. N. J. S. A. 40:48-2.4 et seq. They may put the premises in proper condition at the expense of the owner, such public outlay to become a lien upon the property. N. J. S. A. 40:48-2.12f. Application may be made for the appointment of a receiver to collect the rents and apply them to the improvement of the property, N. J. S. A. 40:48-2.12h, N. J. S. A. 2A:42-79; or to pay the rents into court, thereafter to be available to remedy the defective conditions. N. J. S. A. 2A:42-85 et seq. Municipal agencies may, under certain circumstances, relocate tenants, as was in fact done here with respect to this plaintiff. N. J. S. A. 20:4-1 et seq. At the state level, the Commissioner of the Department of Community Affairs, under the terms of the Hotel and Multiple Dwelling Law, N. J. S. A. 55:13A-1 et seq., is specifically authorized to take appropriate action to insure adequate heat in multiple homes. N. J. S. A. 55:13A-7(h); N. J. A. C. 5:10-19.4(1). The panoply of remedies is ample, as indeed it should be. The diversity of options available strongly suggests a legislative intent that the selection of any particular statutory remedy should remain within the sound discretion of the municipal or other authorities.

Cases in other jurisdictions where similar legislation is in effect have construed such statutes as being permissive rather than mandatory, especially where, as here, the action seeks relief by way of mandamus. Thus in Richmond v. Hayes, 212 Va. 428, 184 S. E. 2d 784 (1971) suit was brought to compel a health officer to take action with respect to allegedly substandard housing pursuant to a statute which clearly authorized such relief. Einding the statute to be in all respects permissive, the court dismissed the suit. Similarly, in Clear Vue Acres Homeowners Ass’n v. Commonwealth, 13 Pa. Cmwlth. 66, 317 A. 2d 335 (1974) the court refused to issue a writ of mandamus to compel the State Department of Environmental Resources to assume the- operation of a water company — potability of its water being allegedly below prescribed standards — despite the presence of a statute clearly authorizing such action. See also Community Action Against Lead Poisoning v. Lyons, 43 A. D. 2d 201, 350 N. Y. S. 2d 812 (App. Div. 1974); aff’d 36 N. Y. 2d 686, 366 N. Y. S. 2d 409, 325 N. E. 2d 870 (1975).

Here we conclude, as we have indicated, that the statute invoked by the plaintiff is enabling and not self-executing. In the absence of appropriate municipal action it is not available as a remedy.

Einally, it should be noted that even were the statute so drawn as to be self-executing, local boards of health would still surely have discretion to decide whether the statutory remedy was appropriate in a particular case. It would be futile and improvident for a board of health to be compelled to repair the heating system of a building so generally dilapidated as to be beyond repair and to be unfit for human habitation.² A sensible solution, as was chosen here, would be to relocate the tenant.

Eor the reasons hereinabove set forth the judgment of the Appellate Division is reversed and the judgment of the trial court is reinstated.

1 The local board of health shall have power to pass, alter’ or amend ordinances and make rules and regulations in regard to the public health within its jurisdiction, for the following purposes:

p. To act as the agent for a landlord in the engaging of repairmen and the ordering of any parts necessary to restore to operating condition the furnace, boiler or other equipment essential to the proper heating of any residential unit rented by said landlord, provided, however, that at least 24 hours have elapsed since the tenant has lodged a complaint with the local board of health, prior to which a bona fide attempt has been madei by the tenant to notify the landlord of the failure of the heating equipment, and the landlord has failed to take appropriate action, and the outside air temperature is less than 55° F.

Any person who supplies material or services in accordance witli this section shall bill the landlord directly and by filing a notice approved by the local board of health, with the county clerk, shall have a lien on the premises where the materials were used or services supplied. [N. J. S. A. 26:3-31(p)]

2 It has been estimated that the average cost of rehabilitation per dwelling unit in low income areas is $9,000. President’s Commission on Urban Housing, A Decent Home, 101 (1968). The State Department of Community Affairs estimated that 44.6% of the dwelling units in Newark were substandard. N. J. Dept. of Community Affairs, Crisis in New Jersey 1970, 23 (1970).