TALL TIMBERS PROPERTY OWNERS ASSOCIATION INC PLEASANT ACRES FARM CAMPGROUND INC EDWARD TILTON DEANNA TILTON v. NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS (2011)

Plaintiff Tall Timbers is the owner and operator of a condominium campground that provides sites for the location of recreational park trailers.   Plaintiff Pleasant Acres sells recreational park trailers that it delivers to sites in New Jersey including Tall Timbers.   Plaintiffs Edward and Deanna Tilton own a recreational park trailer installed in a condominium site at Tall Timbers.

In May 2003, Pleasant Acres sold and delivered two recreational park trailers to the owners of sites in Tall Timbers.   The Construction Official for the Township of Vernon issued a notice of violation and order of penalty to Pleasant Acres and the purchasers based on their failure to obtain construction permits before installing the trailers.   This administrative action was appealed to the Sussex County Construction Board of Appeals, which determined that Pleasant Acres and the purchasers were not required to obtain construction permits before installing the trailers, because state or local regulation of such 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 by the Department of Housing and Urban Development (HUD) to implement that Act.

The Department of Community Affairs (DCA) subsequently sent a letter notifying the Sussex County Board that its interpretation of the Manufactured Housing Act was incorrect and that recreational park trailers are subject to regulation under the Uniform Construction Code (Code) and ordering the Board to rehear the appeal.   However, the County Board refused.

Sometime thereafter, the DCA assumed jurisdiction over the installation of recreational park trailers in Tall Timbers and sent notice of violations and orders to pay penalties to persons who had installed recreational park trailers in Tall Timbers without obtaining construction permits.

The DCA's assertion of regulatory authority over Tall Timbers precipitated the filing of this action in the Law Division by which plaintiffs sought a declaratory judgment that:  (1) the DCA does not have authority under the Uniform Construction Code Act, N.J.S.A. 52:27D-119 to -141, to regulate recreational trailer vehicles, and (2) even if the New Jersey Legislature has delegated such authority to the DCA, Congress has preempted state regulation of recreational trailer vehicles by enactment of the Manufactured Housing Act.

The case was brought before the trial court by cross-motions for summary judgment.   The court issued a written opinion which concluded that the DCA has authority to regulate recreational park trailers under the Code and that such regulation is not preempted by the Manufactured Housing Act.¹ Accordingly, the court entered an order dismissing plaintiffs' complaint.   Plaintiffs filed this appeal from the dismissal.

During the pendency of the present appeal, the DCA formalized its position that it has regulatory authority under the Code over recreational park trailers by the adoption of regulations that expressly provide for such regulation.   Plaintiffs also filed an appeal challenging the validity of those regulations.   The arguments that plaintiffs presented in that appeal are nearly identical to the arguments they presented in this appeal.

We are filing an opinion rejecting plaintiffs' challenge to the validity of the DCA regulations that govern recreational park trailers under the Code simultaneously with this opinion.  Tall Timbers Prop. Owners v. N.J. Dep't Cmty. Affairs, _ N.J.Super.  _ (App.Div.2010).   Our reasons for rejecting plaintiffs' arguments regarding the validity of the DCA regulations also require rejection of the arguments plaintiffs have presented under Points I, II, and III of their brief in this appeal.   The argument that plaintiffs present under Point IV of their brief-that the trial court erred when it ruled that the DCA was not precluded from relitigating the issues previously decided by the Sussex County Construction Board-is clearly without merit.   R. 2:11-3(e)(1)(E).

Affirmed.

FOOTNOTES

FN1. We note that because plaintiffs' complaint challenged the action of the DCA, which is a State administrative agency, the Law Division should have transferred the case to this court rather than ruling upon the merits.   See R. 2:2-4;  R. 1:13-4.   However, because this court has jurisdiction to rule upon plaintiffs' arguments and those arguments were properly presented in the companion appeal, we have elected to decide the merits of the appeal..  FN1. We note that because plaintiffs' complaint challenged the action of the DCA, which is a State administrative agency, the Law Division should have transferred the case to this court rather than ruling upon the merits.   See R. 2:2-4;  R. 1:13-4.   However, because this court has jurisdiction to rule upon plaintiffs' arguments and those arguments were properly presented in the companion appeal, we have elected to decide the merits of the appeal.

PER CURIAM