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Gamba v. Township of Brick

July 26, 2007

VINCENT L. GAMBA, PLAINTIFF-APPELLANT,
v.
TOWNSHIP OF BRICK, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1497-01.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 30, 2007

Before Judges Skillman, Lisa and Grall.

Plaintiff Vincent L. Gamba appeals from an order dismissing his complaint following a jury trial. Gamba alleged that defendant Township of Brick demolished a house on his property and imposed a lien for demolition costs without affording the prior notice and hearing required by N.J.S.A. 40:48-2.5 and N.J.S.A. 40:48-2.7. He sought damages for Brick's unlawful actions and for violation of his constitutional right to procedural due process. This case was previously before us on Gamba's appeal from a grant of summary judgment in favor of Brick and denial of his cross-motion for summary judgment on liability. In an unpublished decision, we reversed both orders and remanded for further proceedings, including consideration of Brick's failure to follow statutory procedures for demolition. Gamba v. Twp. of Brick, No. A-2313-01 (App. Div. April 8, 2003). That question had not been addressed by the motion judge.*fn1

On remand the trial court determined that Brick did not follow the statutory procedures. Nonetheless, the court instructed the jurors that Gamba could not prevail if he had actual notice that his house would be subject to demolition if he did not make the repairs required by Brick. We conclude that actual notice of the potential for demolition of one's property at an unspecified future date neither satisfies nor substantially complies with the municipality's statutory obligations to provide the property owner with prior notice and a hearing. Accordingly, we reverse and remand.

The property at issue is located in the Township of Brick and owned by Gamba. It includes a house, which had not been occupied for several years when Brick first invoked its authority to demolish it pursuant to N.J.S.A. 40:48-2.3 to -2.12.

The Legislature has conferred on municipalities the authority to exercise "police powers to repair, close or demolish, or cause or require the repairing, closing or demolition of" buildings that are "unsafe or insanitary, or dangerous or detrimental to the health or safety or otherwise inimical to the welfare of the residents of said municipality . . . ." N.J.S.A. 40:48-2.3. A municipality, however, must exercise that authority "in the manner" provided in the statutes. Ibid.

It is well-settled that strict compliance with procedures relevant to notice and hearings is required in municipal demolition proceedings where "an intrusion on a substantial property right may result." Hepner v. Twp. Comm. of Twp. of Lawrence, 115 N.J. Super. 155, 161-62 (App. Div.), certif. denied, 59 N.J. 270 (1971); accord 21-23 Seidler Assocs., L.L.C. v. City of Jersey City, 391 N.J. Super. 201, 208 (App. Div. 2007). A person aggrieved by a demolition accomplished by a municipality that did not "first comply[], at least substantially, with the statutory provisions," may recover for injuries sustained as a consequence. Hepner, supra, 115 N.J. Super. at 163. Both owners and other persons with "interests of record" are afforded protections under the law. See N.J.S.A. 40:48-2.4(d)-(e); 21-23 Seidler Assocs., supra, 391 N.J. Super. at 206.

An understanding of the statutory procedures a municipality must follow prior to demolition and the purposes served by adherence to those procedures is essential to a determination whether Brick failed to substantially meet its statutory obligations in connection with this demolition. See N.J.S.A. 40:48-2.5 (requiring a municipality to adopt an ordinance and specifying mandatory provisions); N.J.S.A. 40:48-2.7 (describing the manner of service of process). For that reason, we discuss together the statutory requirements and the actions Brick took in this case.

A municipality must issue a complaint stating the charges. N.J.S.A. 40:48-2.5(b). Brick did that. Brick's complaint was in the form of a letter to plaintiff dated October 2, 1998. In that letter, Brick notified plaintiff that his property had become "so out of repair so as to be unsafe, unsanitary or otherwise unfit for human occupation or occupancy." Brick cited violations of "the BOCA National Property Maintenance Code" governing public nuisance, weeds, exterior painting, street numbers and window and door framing. The letter included a warning that the conditions "may require immediate repair or correction." The letter further advised that Brick's Property Maintenance Appeal Board (Board) would consider whether an order should issue that would require repair, improvement, alteration, removal or demolition of Gamba's property and set a deadline for completion of the work deemed necessary.

In addition to a statement of the charges, a complaint must include information that notifies the owner of the date and time of a hearing on the charges and of the owner's right to file an answer, appear and testify at that hearing. Ibid. The hearing may not be held fewer than seven days after service of the complaint. Ibid.*fn2 Brick did not meet these requirements.

Brick informed plaintiff of his right to appear and testify at a hearing to be held before the Board on October 8, 1998. But, contrary to N.J.S.A. 40:48-2.5(b), the notice did not advise Gamba of his right to file an answer. Further, although N.J.S.A. 40:48-2.5(b) does not permit a hearing fewer than seven days after the complaint is properly served, Brick ...


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