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Alliance for Disabled in Action, Inc. v. Continental Properties

July 27, 2004

ALLIANCE FOR DISABLED IN ACTION, INC. (ADA), A NEW JERSEY NOT-FOR-PROFIT CORPORATION, PLAINTIFF-APPELLANT/CROSS-RESPONDENT,
v.
CONTINENTAL PROPERTIES; EDISON TYLER VILLAGES, L.L.C., DEFENDANT-RESPONDENTS/CROSS-APPELLANTS,
CONSTRUCTION OFFICIAL OF THE TOWNSHIP OF EDISON; SULLIVAN ASSOCIATES, INC., ARCHITECTS AND PLANNERS; SCHOOR DEPALMA, INC.; AND WELLISCH HOME DESIGNS, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-4909-99.

Before Judges Wefing, Collester and Fuentes.

The opinion of the court was delivered by: Wefing, J.A.D

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 2, 2004

The parties appeal and cross-appeal from various orders entered by the trial court during the proceedings below. After reviewing the record in light of the contentions advanced on appeal, we affirm in part and reverse in part and remand for further proceedings.

This appeal is a companion to Alliance for Disabled in Action, Inc. v. Renaissance Enterprises, Inc. et al, A-1091-02. To the extent that the issues overlap, we shall rely upon our opinion in that matter, ___ N.J.Super. ___ (App. Div. 2004).

In its complaint, plaintiff Alliance for Disabled in Action, Inc. ("ADA") refers to itself as a nonprofit membership organization which"seeks to advance the rights and well-being of persons with disabilities generally, including those who require that buildings be accessible to persons with physical disabilities." Defendants Continental Properties and Edison Tyler Villages, LLC ("Continental") are the developer of a large residential housing complex located in Edison and known as Talmadge Village. Defendant Sullivan Associates, Inc. ("Sullivan") served as architect for this project and defendant Schoor DePalma ("Schoor") as site engineers. Defendant Construction Official of Edison issued the requisite permits and approvals for construction of this complex. As in the Renaissance matter, plaintiff alleges that the design and construction of this complex did not comply with New Jersey's Barrier Free Subcode, N.J.A.C. 5:23-7.1 to -7.31 ("subcode"), and that the actions of defendants with regard to this compleX were acts of discrimination under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49 ("LAD"). N.J.S.A. 10:5-12.4 declares that a"failure to design and construct any multi-family dwelling of four or more units in accordance with barrier free standards... [is] unlawful discrimination."

On appeal, plaintiff urges that the trial court erred in dismissing certain of its claims for reasons of the statute of limitations, in dismissing its claims against the Construction Official and in dismissing its claims against the architect and engineer for failure to present a sufficient expert report. In its cross-appeal, Continental contends the trial court erred in not referring the matter to the Department of Community Affairs pursuant to the doctrine of primary jurisdiction or in not requiring plaintiff to exhaust its administrative remedies before resorting to litigation.

I.

Talmadge Village consists of twenty-seven buildings which contain a total of 330 housing units. Of these 330 units, 110 are ground-floor ranch units. The complex also includes a swimming pool and pool building. Unlike Renaissance Village, which consists of condominium units, Talmadge Village was designed and constructed as a rental complex.

Continental submitted its plans for this development in August 1995 and received its first building permit in December 1995. Construction began in February 1996 and the first certificate of occupancy was issued on September 25, 1996. Construction permits for the remaining apartment buildings were issued at various dates through August 1996. Certificates of occupancy for the apartment buildings were issued through May 1, 1998. Construction permits for the swimming pool and pool building were issued on January 16, 1997 and April 25, 1997, respectively. They received certificates in early July 1998. Construction at the complex ended in the spring of 1998, slightly more than two years after it had commenced.

In this matter, unlike the Renaissance matter, a bench trial was held to determine whether certain features of the complex violated the subcode. As a result of that trial, the court ordered the reconstruction and retrofitting of entrance thresholds, kitchen work-space areas and plumbing insulation, bathtub shower faucet controls, cabana entrances and restroom mirrors and curb ramps. The trial court rejected plaintiff's complaint that other features violated the subcode. Neither side has appealed the final judgment which sets forth those determinations and awards plaintiff a counsel fee of $11,413.08. The trial court's judgment was stayed pending appeal.

II.

Plaintiff filed its initial complaint on April 7, 1999. In this matter, unlike the Renaissance matter, the trial court selected the date upon which the certificate of occupancy was issued as the triggering date for limitations purposes. As we explained in our opinion in that matter (slip op at 8), we consider that the correct date to utilize. And, unlike the Renaissance matter, there is no dispute in this case that a two-year limitations period applies, there being no operative ...


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