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12-67 River Road Associates v. Fair Lawn Fire Prevention Bureau

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 31, 2007

12-67 RIVER ROAD ASSOCIATES, PLAINTIFF-APPELLANT,
v.
FAIR LAWN FIRE PREVENTION BUREAU AND BERGEN COUNTY CONSTRUCTION BOARD OF APPEALS, DEFENDANTS-RESPONDENTS.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. L-11285-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 20, 2007

Before Judges Wefing and Weissbard.

Plaintiff 12-67 River Road Associates appeals from an order for judgment entered by the trial court on July 10, 2006. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff is the owner of premises located at 12-67 River Road, Fair Lawn. Plaintiff's attorney is a principal in plaintiff and conducts his law practice in the building. We are informed that the building also contains a residential apartment on the second story. On November 13, 2003, John N. Hoitsma, an inspector in Fair Lawn's Fire Prevention Bureau, conducted an inspection of the premises and issued a Notice of Violations and Order to Correct that cited four violations:

1) Files stored in the basement within two feet of the ceiling, N.J.A.C. 5:70-3.1(a)21,F-2103.2;

2) Files stored within 30 inches of electrical service equipment, N.J.A.C. 5:70-3.1(a)3,F-310.3;

3) Open junction box, N.J.A.C. 5:70-3.1(a)3.F-310.6;

4) No record of annual test for fire alarm, N.J.A.C. 5:70.3.1(a)5,F-513.2 The premises were reinspected on December 8, 2003, December 22, 2003, and January 5, 2004, and the violations remained unabated. Plaintiff was assessed penalties of $9,000.

Plaintiff appealed to the Bergen County Construction Board of Appeals. After two days of hearings, the Board issued a written decision denying the appeal and upholding the penalties.

Plaintiff thereafter filed an action in Superior Court, Law Division, in which it was again unsuccessful. Plaintiff has appealed to this court from the judgment of the Law Division.

There is, in our judgment, no merit to plaintiff's challenge to the procedure employed in the Law Division. Plaintiff's action was properly treated as an action in lieu of prerogative writs, in which it was challenging an administrative determination by the Construction Board of Appeals. Bell v. Tp. of Bass River, 196 N.J. Super. 304, 312 (Law Div. 1984). As such, the trial judge correctly framed the issue before him: whether the determination of the Construction Board of Appeals was arbitrary, capricious or unreasonable. Ibid. Additionally, plaintiff's challenge was confined to the record before the Board. Ibid. Thus, plaintiff's attempt to present to the Law Division judge material that had not been before the Board was improper. Ibid. The trial court correctly rejected, as do we, plaintiff's contention that it was treated in a discriminatory manner and deprived of the equal protection of the law. We have reviewed this record and have no basis to conclude that the fines imposed upon plaintiff were excessive. To the extent plaintiff has raised issues that we have not addressed specifically, we deem them to lack sufficient merit to be the subject of a written opinion. R. 2:11-3(e)(1)(E).

We affirm the judgment below substantially for the reasons stated by Judge Menelaos B. Toskos in his written opinion of July 10, 2006.

20070731

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