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Rothman v. Department of Community Affairs

Decided: June 30, 1988.

LEONARD ROTHMAN AND MILDRED ROTHMAN AND ROTHMAN REALTY CORP., APPELLANTS,
v.
DEPARTMENT OF COMMUNITY AFFAIRS, BUREAU OF HOUSING INSPECTION, RESPONDENT



On appeal from New Jersey Department of Community Affairs.

Bilder and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

[226 NJSuper Page 230] The issue presented by this appeal is whether three buildings in Cliffside Park owned by appellants are "multiple dwellings" as defined in N.J.S.A. 55:13A-3(k) and therefore subject to the regulatory authority of the Commissioner of Community Affairs (the Commissioner) under the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 et seq. Appellants argue that the buildings, each of which contain four housing units, were converted into two separate buildings, each containing two units, when appellant Rothman Realty Corporation conveyed one half of each building to appellants Leonard and Mildred Rothman, and that because a building must contain three or more housing units in order to be a "multiple dwelling,"

the buildings are not subject to the Hotel and Multiple Dwelling Law. The Commissioner rejected this argument and concluded that appellants' buildings are "multiple dwellings." Therefore, he asserted jurisdiction to determine whether there are violations in the buildings of regulations adopted under the Law. We affirm the Commissioner's decision.

Preliminarily, we note that this matter was brought before the Commissioner as a result of inspection reports prepared by the Bureau of Housing Inspection of the Department of Community Affairs, which stated that there were code violations in the buildings. The Commissioner issued a decision dated February 3, 1987 in which he determined that appellants' three buildings are "multiple dwellings" subject to regulation under the Hotel and Multiple Dwelling Law. However, he has not yet adjudicated the alleged building code violations. Therefore, the appeal is interlocutory. See McGowan v. Berry, 210 N.J. Super. 469, 472 n. 2 (App.Div.1986). Nevertheless, in view of the substantial period of time which has elapsed since this matter was presented to the Commissioner and the significance of the jurisdictional issue presented by the appeal, we have elected to grant leave to appeal nunc pro tunc. See Henderson v. Morristown Memorial Hosp., 198 N.J. Super. 418, 427 (App.Div.1985), certif. den. 101 N.J. 250 (1985).

The Hotel and Multiple Dwelling Law confers broad authority upon the Commissioner of Community Affairs to regulate the construction and maintenance of hotels and multiple dwellings. Thus, N.J.S.A. 55:13A-7 requires the Commissioner to adopt

N.J.S.A. 55:13A-13(a) provides in pertinent part that "[e]ach multiple dwelling shall be inspected at least once in every 5 years . . . for the purpose of determining the extent to which each . . . multiple dwelling complies with the provisions of this

act and regulations promulgated thereunder." Where an inspection discloses a violation of the Law or the regulations adopted thereunder, the Commissioner may issue a notice to abate the violation within a fixed period of time. N.J.S.A. 55:13A-13(d). If the violation is not corrected within that time period, the Commissioner may impose monetary penalties, N.J.S.A. 55:13A-19(b), or file an action in the superior court seeking injunctive relief, N.J.S.A. 55:13A-16(b). Moreover, if an inspection reveals a violation of the Law or regulations "which constitutes an imminent hazard to the health, safety or welfare of the occupants . . . or of the public generally," the Commissioner may issue an order directing that the building be vacated forthwith. N.J.S.A. 55:13A-17.

In order to be subject to these regulatory provisions, a building must be either a "hotel" or a "multiple dwelling." See N.J.S.A. 55:13A-10, 11, 12 and 13. The term "multiple dwelling" is defined in N.J.S.A. 55:13A-3(k) as

any building or structure of one or more stories and any land appurtenant thereto, and any portion thereof, in which three or more units of dwelling space are occupied, or are intended to be occupied by three or more persons who live independently of each other.

In accordance with the legislative directive contained in N.J.S.A. 55:13A-2, we have liberally construed the Commissioner's jurisdiction under the Hotel and Multiple Dwelling Law. Thus, in Rumson Country Club v. Comm'r of Community Affairs, 134 N.J. Super. 54 (App.Div.1975), certif. den. 68 N.J. 482 (1975), we upheld the Commissioner's determination that a country club with six bedrooms on its upper floors for the use of its employees and members was a "multiple dwelling." And in Blair Academy v. Sheehan, 149 N.J. Super. 113 (App.Div.1977), we upheld the Commissioner's determination that a dormitory in a private school was a "hotel" as defined in the Law. Most significantly, in Bunting v. Sheehan, 156 N.J. Super. 14 (App.Div.1976), we affirmed the Commissioner's ...


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