On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Petrella, Gaynor and Scalera. The opinion of the court was delivered by Scalera, J.A.D.
[218 NJSuper Page 77] Plaintiffs (hereinafter referred to collectively as D.I.A.L.) appeal from a judgment dismissing their complaint. They originally sought to reverse a decision entered by the City of Clifton Construction Board of Appeals (Board) which exempted the residential condominium project being constructed by Jo-Cal Associates (Jo-Cal) from compliance with legislation mandating design and construction considerations for use by handicapped persons, N.J.S.A. 52:32-4, et seq., (the Act). In addition, D.I.A.L. sought to compel compliance with the regulations known as the Barrier-Free Design Code (the Code), N.J.A.C. 17:19A-1.1, et seq.*fn1
On December 16, 1985, the Clifton construction code enforcement official notified Jo-Cal that construction of the condominium project known as Hamilton Woods had to be done in compliance with the Code. This project consists of three buildings, each of which contain 10 residential units. Each building is similarly designed, with five residential units on each of the two levels. Exterior access to four units at each end of a building is accomplished from a common entry level, with steps leading to two units upstairs and to two units downstairs. The middle two units also share a common entry level, with steps leading to one unit above and one unit below. The interior design of each unit is such that many of the rooms are on different levels. Each dwelling unit is separated from every other dwelling unit by both horizontal and vertical fire separation walls. The building site is on a severe slope, affecting the architectural design of both the exterior and interior accommodations.
On December 20, 1985, Jo-Cal applied to the local construction code official for a variation (mistakenly relying on a deleted provision of the Code). When the request for a variation was denied, Jo-Cal appealed to the Board and also requested a total exemption from the Code requirements. It based the latter application on the contention that the severely sloped site conditions and roadway gradients combined to jeopardize the safety of handicapped individuals and to make even initial access for them virtually impossible.
At a hearing before the Board on January 14, 1986, Jo-Cal presented undisputed evidence of the severe topographical conditions at the site which, it argued, prevented practical compliance
with the Code. As a result, the Board granted Jo-Cal an exemption from compliance with the Code upon the condition that it make some relatively minor modifications to two of the condominium units, i.e., install outlets at the stairways and at the outside entrance for the future installation of chair lifts and build 30" doorways. The Board's written decision contained only a summary reference to Jo-Cal's recitation of the reasons provided in its application. However, during the hearing the Chairman did observe that the grade of the property did present a hazard to handicapped persons and practically prevented such individuals from visiting or living in the development.
D.I.A.L., in the complaint, alleged that its membership is composed largely of disabled persons, many of whom are residents of Clifton and surrounding communities and that it sought to advance the rights of disabled individuals who require accessible housing. As such, it sought to assure that housing and other types of construction comply with required standards of accessibility.
The complaint further alleged that the Hamilton Woods project is a public building containing more than four family residences and thus is subject to the provisions of the Act and the Code. It asserted that Jo-Cal had wholly failed to comply with the Code since none of the dwelling units as proposed are designed to be barrier-free or minimally accessible to disabled persons. It further asserted that the decision of the Board exempting the project was in violation of the Act. Thus, D.I.A.L. demanded a judgment reversing the Board's decision and compelling Jo-Cal to comply with the Code or to have the construction permits for the Hamilton Woods project revoked.
Jo-Cal, in its answer, took the position that the provisions of the Act and the Code do not apply to the Hamilton Woods project at all and asserted that the Board's action in exempting it from their requirements was correct in all respects. The Board also filed an answer denying that it had acted improperly
and asserted that the Act specifically authorizes it to grant such exemptions in cases where practical difficulty or unnecessary hardship is demonstrated.
Thereafter, D.I.A.L. and Jo-Cal filed cross-motions for summary judgment. D.I.A.L.'s motion was based on the fact that the plans and specifications for the Hamilton Woods development failed to accommodate the numerous requirements of the Code. Jo-Cal's cross-motion was predicated on the assertion that it was exempt from complying with the Code because the Hamilton Woods project is not a "public building" within the meaning of N.J.S.A. 52:32-6 and because it consists only of one-to-four family private residences excepted by the Act and the Code since each residence is a self-contained unit separated from similar units by fire separation walls.
The Law Division judge rendered an oral decision on April 18, 1986 in which he granted Jo-Cal's motion for summary judgment. Although he rejected Jo-Cal's argument that Hamilton Woods is not a public building within N.J.S.A. 52:32-6, he found that the project was exempt because the common exterior entranceways did not provide access to more than four dwelling units, each separated from every other unit by a solid, sealed vertical fire separation wall as defined in the Code. See N.J.A.C. 17:19A-1.2(a)1. Thereafter, he denied D.I.A.L.'s application for a rehearing on the ground that each level of the three buildings had distinct vertical fire separation walls which were not connected with the vertical fire separation walls on the level above or below and that these walls might be pierced by utility openings.
D.I.A.L. contends on this appeal that the trial judge misinterpreted the statutory exclusion pertaining to "one-to four-family private residences" contained in N.J.S.A. 52:32-6a. It further alleges that N.J.A.C. 17:19A-1.2(a)1, in purporting to exempt buildings containing numerous dwelling units simply because each unit is separated from similar units by fire separation walls is ultra vires and therefore void. Lastly, it argues that
the Hamilton Woods development constitutes a "complex" under the Act rendering it subject to the provisions of the Code even though it consists of a series of two and four-family residences, each of which may be individually exempt.
Initially we address the issue of whether the provisions of the Act and the Code are generally applicable to the Hamilton Woods project. Although Jo-Cal apparently did not file any appeal contesting the local enforcement officer's notification that compliance was necessary, it did attempt to raise the issue before the Board in connection with its application for an exemption. The Board did not deal with the question (and we question their authority to do so) but granted relief under the exemption powers specifically provided for by the statute. N.J.S.A. 52:32-8 and 9. When D.I.A.L. filed its action in lieu of prerogative writs in the Law Division, however, Jo-Cal again raised the issue in its answer through its general denial that it was governed by the Act and the Code and specifically urged this to the Law Division ...