On appeal from Superior Court of New Jersey, Law Division, Middlesex County, L-10853-98.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff appeals from trial court orders granting summary judgment to defendants. 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 companion to Alliance for Disabled in Action, Inc., v. Continental Properties, Docket No. A-465-02. Both appeals were argued before us back-to-back; we issue our opinions simultaneously.
Plaintiff Alliance for Disabled in Action, Inc., ("ADA"), is a private, non-profit membership organization. In its complaint in this matter, it describes itself as seeking"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 Renaissance Enterprises, Inc. and Renaissance Terrace, Inc. ("Renaissance") are the developer of a large residential condominium project in North Brunswick known as Renaissance Village ("Village"). Defendant Renaissance Village I, a Condominium ("association") is the condominium association that owns and controls the project's common elements. Defendant Renaissance at North Brunswick Master Association, ("master association"), owns and controls the pool, recreation building and associated recreational facilities in the Village. Defendant Salkin Group, Inc., was the architect for this project. It has never been served and has not participated in this litigation. The remaining defendant is North Brunswick's Construction Official.
The project is a large one. There are fifteen separate buildings in the Village, each of which contains twenty-two units. The majority of these units are multi-level units and the buildings within the Village are not serviced by elevators. In addition to these multi-level units, however, there are 135 ground-floor units without basements. Each of these units, referred to as"Sussex" units, has its own separate ground-level entrance.
In this litigation, plaintiff contended that these SusseX units, as well as portions of the Village's common elements and recreational facilities, did not comply with New Jersey's Barrier Free Subcode, N.J.A.C. 5:23-7.1 to -7.31, ("subcode"). Plaintiff initially sought to have this matter proceed as a class action. It does not challenge on appeal the trial court's denial of that motion.
The trial court also ruled by way of a series of summary judgment motions that plaintiff's claims were barred by the statute of limitations, that the project was exempt from the standards of the subcode, and that the construction code official was entitled to summary judgment in any event. Plaintiff has appealed from those rulings. We are satisfied the trial court erred in holding that plaintiff's claims are barred by the statute of limitations and in holding that the project was exempt from the requirements of the subcode and we reverse those rulings. The trial court, however, properly granted summary judgment to the construction code official and we affirm that determination.
Plaintiff filed its initial complaint on October 20, 1998. It alleged that the design and construction of the project was not in conformance with the subcode. In its complaint it included allegations that the doors to the bedrooms, bathrooms and walk-in closets in the Sussex units were not sufficiently wide to accommodate wheelchair access, that cabinetry beneath the bathroom sink was not designed to be removable, that grab bars could not be installed alongside the toilets and that the kitchen tops were not mounted at the proper fixed height or designed to be adjustable.
Plaintiff alleged that Renaissance's involvement in the design and construction of these units and the actions of the Construction Official in issuing the construction permits 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." Plaintiff subsequently amended its complaint to allege related violations in connection with the design and construction of certain of the common elements and the swimming pool and recreation building.
In November 2001, plaintiff voluntarily dismissed its claims against the association and master association. The trial court entered final judgment in October 2002, in which it awarded plaintiff a counsel fee of $26,342.39.
We turn first to the question whether plaintiff's complaint was untimely under the statute of limitations. The trial court made no explicit determination whether plaintiff's claims are subject to a six-year period of limitations or a two-year period of limitations because it was satisfied that plaintiff's claims were untimely no matter which period was utilized.
The record before us does not disclose when planning began for this development and how long that planning process took. Defendant Renaissance, however, received approval on October 9, 1992, for the prototype plans for the Sussex units. Because these were prototype plans, Renaissance did not have to resubmit new plans each time a Sussex unit was constructed. Based upon that approval, Renaissance received construction permits for these Sussex units over a four-year period, from January 1993 through January 1997. A model Sussex unit was open for inspection in 1993 and sales commenced that same year. As of December 2000, only one Sussex unit remained unsold.
According to the trial court, plaintiff's LAD-based claims accrued, and the period of limitations began to run, when plaintiff knew or should have known about the alleged violations of the standards for handicapped accessibility in the Village.
The trial court, relying on the fact that plaintiff is an advocacy organization for the rights of the handicapped, concluded that it knew or should have known of these alleged violations on October 19, 1992, when the construction code official approved the prototype plans and no later than September or October 1993 when the model Sussex unit was open for inspection by the public.
We are satisfied the trial court erred in this regard. The trial court cited no authority at all for the proposition that plaintiff should be charged with notice of this project and our research has uncovered none. Nor can we perceive any basis in either policy or logic to adopt such an approach. Plaintiff is a private organization that advocates on behalf of the rights of the disabled. It has no responsibility to monitor design and construction activities in the hundreds of municipalities throughout the State of New Jersey.
Further, we consider the selection of the date of approval of the prototype plans or the date the model unit was open for inspection to conflict with the language of N.J.S.A. 10:5-12.4 which declares it to be unlawful discrimination"to design and construct" (emphasis added) a non-exempt building that does not comply with the subcode. Approval of the prototype plans should not, in our judgment, mark the start of the period of limitations for nothing had yet been constructed at that point and it is the actual construction which triggers liability under the statute.
Similarly, we also reject the alternate date selected by the trial court, the opening of the model unit. The construction of that unit would not start the period of limitations for those Sussex units not yet built.
In our judgment, the appropriate date to start the period of limitations is the date construction was completed on these units, that is, the date upon which a certificate of occupancy was issued. The record before us does not indicate when certificates of occupancy were issued for each of the SusseX units but it does indicate that certificates of occupancy were issued for at least some of the Sussex units within two years of the filing of plaintiff's complaint.*fn1
The more difficult question is whether defendants were entitled to summary judgment for those Sussex units for which certificates of occupancy were issued more than two years prior to the filing of this complaint or whether the continuation of construction activity deprives defendants of the protection of the limitations period. Plaintiff contends that we should invoke either the continuing violation doctrine or the discovery doctrine to permit its claims relating to the entire Village to proceed."For causes of action arising under anti-discrimination laws... a judicially created doctrine known as the continuing violation theory has developed as an equitable exception to the statute of limitations." Bolinger v. Bell Atl., 330 N.J. Super. 300, 306 (App. Div.), certif. denied, 165 N.J. 491 (2000). In Bolinger, we set forth the elements of the continuing violation doctrine:
To establish a continuing violation based on a series of discriminatory acts, a plaintiff must show that
(1) at least one allegedly discriminatory act occurred within the filing period and
(2) the discrimination is"more than the occurrence of isolated or sporadic acts of intentional discrimination" and is instead a continuing pattern of discrimination. Upon satisfying these criteria, a plaintiff may recover for damages incurred as a result of the entire continuing violation. In evaluating whether alleged incidents of discrimination constitute a continuing violation, a court should consider three factors:
(i) subject matter--whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence whether the nature of the violations should trigger an employee's awareness of the need to assert her rights and whether the consequences of the act ...