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Hepner v. Township Committee of Township of Lawrence

Decided: June 14, 1971.

ALBERT HEPNER, PLAINTIFF-APPELLANT,
v.
THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF LAWRENCE, DEFENDANT-RESPONDENT



Conford, Kolovsky and Carton. The opinion of the court was delivered by Carton, J.A.D.

Carton

[115 NJSuper Page 157] Plaintiff, the assignee of a tax sale certificate to certain property in Cedarville, Lawrence

Township, appeals from a judgment denying an injunction against demolition of the dwelling thereon by defendant township committee and dismissing his claim for damages.

The present controversy is the culmination of a long-standing dispute between plaintiff and defendant municipality centering around the alleged substandard condition of the dwelling house on this property and the municipality's efforts to compel plaintiff either to make the repairs necessary to render it habitable or to demolish it.

On October 14, 1965 the township building inspector sent plaintiff a declaration that the property was substandard and unfit for human habitation. The declaration ordered that the building be repaired or demolished within the next following 30 days and notified Hepner of a hearing scheduled on November 1, 1965. Plaintiff, through his attorney, reached an agreement with Lawrence's representatives in which the township agreed not to demolish the building if Hepner would effectuate necessary repairs. It is undisputed that the building remained vacant and that certain repairs and renovations were undertaken by plaintiff.

According to the township, plaintiff was sent another notice on May 23, 1967 by regular mail declaring that these premises remained uninhabitable. While plaintiff denies ever receiving this notice, the complaint was never returned as undelivered. The notice required that the building be repaired or demolished within the next following 30 days and notified Hepner of a "hearing pursuant to ordinance 74 [to be held on June 12]. * * * You may file an answer to this complaint and appear then to answer these charges."

The township's representatives met on June 12; however, Hepner did not appear. The record reveals no minutes or findings of fact or any determination resulting from the hearing.

As a result of the June 12 meeting, plaintiff was personally served on June 23 with a notice ordering plaintiff to demolish the property within 30 days because it remained in violation of the township ordinance.

The building not having been demolished as directed, on August 3, 1967 the township advertised that bids would be taken for its demolition on August 14. Plaintiff admitted reading this advertisement. At a meeting held by the township committee on the latter date, plaintiff, through his attorney, represented that the building was not in a dilapidated condition. The township decided to proceed with the demolition plans on the following day. That same day plaintiff obtained a temporary restraining order. However, a section of the building had already been destroyed. Plaintiff filed another complaint seeking damages for the destruction of his building.

After a plenary trial as to liability, the court concluded that the premises were, as of May 23, 1967 and thereafter, dangerous to life and health; that plaintiff had been given notice as required by N.J.S.A. 40:48-1(15) and N.J.S.A. 40:48-2.3 and 2.5; that the requisite statutory procedures had been complied with, and that plaintiff was entitled to no damages.

The issues to be resolved on this appeal are whether plaintiff had the requisite standing to challenge the validity of the demolition ordered pursuant to N.J.S.A. 40:48-2.3 to 40:48-2.12 by defendant township committee; whether the notice given to plaintiff complied with the requirements of N.J.S.A. 40:48-1(15), or N.J.S.A. 40:48-2.5 and N.J.S.A. 40:48-2.7, and whether plaintiff could, under any circumstances, be entitled to damages for wrongful destruction of his property in light of N.J.S.A. 40:48-2.8.

Preliminarily, we note that plaintiff is not entitled to advance the issue that N.J.S.A. 40:48-2.5 and N.J.S.A. 40:48-2.6 are unconstitutional on the theory that the statutory scheme permits unfettered delegation of authority to an individual. We need not consider this contention since it is raised for the first time on appeal and without compliance with the provisions of ...


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