On certification to the Superior Court, Appellate Division, whose opinion is reported at 371 N.J. Super. 409 (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).
Alliance for Disabled in Action, Inc., (ADA) is a private, non-profit membership organization. In its complaint in this case, ADA states that it is an organization 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.
There are fifteen separate buildings in the Village, each of which contains twenty-two units. The majority of these units are multi-level and are not serviced by elevators. In addition to these multi-level units, there are 135 ground-floor units without basements. Each of these ground-floor "Sussex" units has its own separate ground-level entrance.
Renaissance received approval on October 9, 1992 for the prototype plans for the Sussex units. Because these were prototype plans, Renaissance had the benefit of not having to resubmit new plans each time a Sussex unit was constructed. Based on 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 began that same year. As of December 2000, only one Sussex unit remained unsold.
In its lawsuit filed on October 20, 1998, ADA claims that the Sussex units, and a portion of the Village's common elements and recreational facilities fail to comply with New Jersey's Barrier Free Subcode, N.J.A.C. 5:23-7.1 to -- 7.31, (subcode). ADA alleges, for example, 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. ADA contends that Renaissance's involvement in the design and construction of these units and the actions of the North Brunswick Construction Official in issuing the construction permits were acts of discrimination in violation of the Law Against Discrimination (LAD), which provides that "failure to design and construct any multi-family dwelling of four or more units in accordance with barrier free standards.[is] unlawful discrimination." ADA subsequently amended its complaint to allege related violations in connection with the design and construction of certain of the common elements, the swimming pool, and the recreation building.
Through a series of summary judgment motions, the trial court held that ADA'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.
ADA appealed and the Appellate Division reversed in part, affirmed in part, and remanded for further proceedings. The Appellate Division concluded that the trial court erred in its determination that ADA's claims were barred by the statute of limitations and that the project was exempt from the requirements of the subcode. In addition, a majority of the appellate panel affirmed the trial court's grant of summary judgment as to the construction official.
On the statute-of-limitations issue, the trial court concluded that the LAD-based claims began to run when ADA knew or should have known about the alleged violations of handicapped accessibility requirements, and that ADA knew or should have known of these alleged violations on October 19, 1992 when the prototype plans were approved or, at the very latest October 1993 when the first Sussex model was open for inspection. In reversing the trial court's decision, the Appellate Division found that the appropriate date to start the period of limitations is the date construction was completed on the Sussex units, i.e., the date on which the certificate of occupancy is issued. In light of the facts presented, the Appellate Division found that it is not unfair to invoke the continuous violation theory and compute the limitations period from the issuance of the last certificate of occupancy. Further, the court concluded that because the project was built on a continuous basis, with no significant interruption in construction activity and there was no evidence that ADA knew of the alleged subcode violations and purposely withheld filing suit until the completion of the project, the two-year limitations period applies to this cause of action.
On the issue of the exemption from handicapped accessibility requirements, the Appellate Division found that amended governing regulations deleting references to fire separation walls and the inclusion of broader language concerning entrances to dwelling units indicate an intention to eliminate such walls as a factor in determining whether the exemption is applicable in a particular case and does not provide a basis in this case to artificially divide the twenty-one dwelling units in the fifteen buildings into smaller "residences" so as to fit within the exemption.
Lastly, a majority of the appellate panel agreed with the trial court that ADA failed to present proof of a discriminatory motive or intent on the part of the construction official; therefore, summary judgment was properly granted. One member of the panel dissented on this issue, concluding that the facts presented provide a rational basis from which a trier of fact could find that the construction official is liable for aiding and abetting Renaissance in violating the subcode.
HELD: Judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge
Wefing's written opinion below. The LAD claims were not barred by the statute of limitations; the construction project is not exempt from he requirements of the Barrier Free Subcode; and the trial court properly granted summary judgment as to the North Brunswick construction official.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join ...