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Alliance For Disabled In Action, Inc. v. Continental Properties

December 1, 2005


On certification to the Superior Court, Appellate Division, whose opinion is reported at 371 N.J. Super. 398 (2004).


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

This is a companion case to Alliance for Disabled in Action, Inc. v. Renaissance Enterprises, Inc.

(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in the written opinion below.)

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 project. As in the Renaissance matter, Alliance for Disabled in Action, Inc. (ADA) 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 the defendants in respect of this project were acts of discrimination in violation of the Law Against Discrimination (LAD), which provides 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.

Talmadge Village consists of twenty-seven buildings that contain 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 of occupancy in early July 1998. Construction at the complex ended in the spring of 1998, slightly more than two years after it began.

In this matter, unlike the Renaissance case, a bench trial was held to determine whether certain features of the complex violated the subcode. At the conclusion 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 ADA's claim that other features violated the subcode.

ADA filed its initial complaint on April 7, 1999. The trial court selected the date on which the certificate of occupancy was issued as the triggering date for the statute of limitations. Further, there is no dispute that the two-year statute of limitations applies in this case. Nevertheless, the trial court refused to apply the continuing violation doctrine and dismissed ADA's claims in connection with all the buildings that had received certificates of occupancy before April 7, 1997. As a result, the trial court considered ADA's complaint timely as to fourteen buildings within the complex and untimely to the remainder. The trial court granted summary judgment as to Sullivan, the architect, and Schoor, the engineer, for failure to provide an expert report as to liability ADA appealed to the Appellate Division, contending that the trial court erred in dismissing certain of its claims based on 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 an expert report. Continental cross-appealed, contending that 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 ADA to exhaust its administrative remedies prior to litigating in the Law Division.

The Appellate Division affirmed in part and reversed in part and remanded the matter for further proceedings. On the issue of the statute of limitations, the Appellate Division held that its analysis in Renaissance , also decided today, bears equally in this case and that the same factors that impelled its determination to invoke the continuing violation doctrine were present here, leading the panel to reach the same conclusion it reached in Renaissance. In addition, the Appellate Division affirmed the dismissal of the claims against the construction official for the reasons expressed in Renaissance - that there was no proof of discriminatory intent or purpose on the part of the official.

On the issue of the architect, Sullivan's, liability, it was noted that ADA had retained the services of an expert in the area of handicapped accessibility, although he was not a licensed architect. The trial court concluded that the matter was essentially one of architectural malpractice, requiring a report from a licensed architect. A majority of the appellate panel reversed, satisfied that the trial court erred in characterizing the matter as a claim of architectural malpractice. Rather, the claim was restricted to the allegation that the design of the project did not comply with the subcode. Because the expert had extensive experience in this area, the Appellate Division concluded he was well-qualified to testify on this issue. One judge dissented substantially for the reasons expressed in Renaissance.

As for the claims against the engineer, Schoor, the Appellate Division agreed that they were properly dismissed, although not for the reasons expressed by the trial court. According to the Appellate Division, the expert's deposition lacked any knowledge of the nature and extent of Schoor's involvement in the project. As such, ADA failed to present competent evidence from an expert as to Schoor's actions.

In respect of Continental's cross-appeal, the Appellate Division held that neither the doctrine of primary jurisdiction nor the requirement of exhaustion of administrative remedies is absolute. The trial court has discretion regarding whether to invoke these principles. The Appellate Division concluded that Continental made no assertion that the trial court's findings as to the presence of subcode violations were erroneous and there was no abuse of the trial court's discretion in denying Continental's motion.

HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge WefingÂ’s written opinion below. As in the Renaissance matter, also decided today, the statute of limitations does not bar the LAD claims pursuant to the application of the continuous violation doctrine. In addition, the trial ...

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