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Dep't of Community Affairs, Bureau of Housing Inspection v. 275 Prospect Towers Association


May 6, 2008


On appeal from the Department of Community Affairs, Bureau of Housing Inspection, Docket No. BHI-312-05/0705-06605-C.

Per curiam.


Submitted February 25, 2008

Before Judges Graves and Alvarez.

275 Prospect Towers Association, Inc. (Prospect Towers), a condominium association created under the Condominium Act, N.J.S.A. 46:8B-1 to -38, appeals a final decision of the Commissioner of the Department of Community Affairs. Prospect Towers manages a 192-unit building located at 275 Prospect Street in East Orange (the building). The Commissioner's decision, which adopted as final an Initial Decision issued by an administrative law judge (ALJ), requires Prospect Towers to provide carbon monoxide alarms in all dwelling units within the building, pursuant to the Hotel and Multiple Dwelling Law, N.J.S.A. 55:13A-1 to -28. For the reasons that follow, we affirm.

On March 31, 2005, the Bureau of Housing Inspection, operating within the Department of Community Affairs (DCA), issued a report regarding a number of violations in the exterior areas, common areas, and individual units of the building. Forty-two of the stated violations were for failure to provide carbon monoxide alarms in individual units. Prospect Towers contested the violations and requested a hearing. The DCA transmitted the matter to the Office of Administrative Law. The parties thereafter filed cross-motions for summary decision. Oral argument was conducted before the ALJ, whose opinion issued on December 4, 2006. The violations included relatively insignificant items such as the condition of painted walls within individual units, which the State conceded it is not pursuing. The non-safety, non-common element violations, as well as the $6625 penalty which has been calculated but not assessed, are in limbo pending resolution of this appeal. The only question addressed by counsel at oral argument before the ALJ, and therefore the only issue the ALJ considered in his written decision, is whether carbon monoxide alarms were included in the legal definition of common elements, and were, as a result, the responsibility of the condominium association concurrently with individual unit owners.

Appellate courts have a limited role in reviewing decisions of administrative agencies. State-Operated Sch. Dist. of Newark v. Gaines, 309 N.J. Super. 327, 331 (App. Div.) (citing Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)), certif. denied, 156 N.J. 381 (1998); Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). We should not independently assess the evidence. In re Taylor, 158 N.J. 644, 656 (1999) (citing State v. Locurto, 157 N.J. 463, 471 (1999)). Instead, we are required to accord a strong presumption of reasonableness to the decision of an administrative agency. State-Operated Sch. Dist., supra, 309 N.J. Super. at 331 (citing Smith v. Riccci, 89 N.J. 514, 525, appeal dismissed sub nom, Smith v. Brandt, 459 U.S. 962, 103 S.Ct. 286, 74 L.Ed. 2d 272 (1982)). Determinations of administrative agencies must be given great deference. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004) (citing In re Distrib'n of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001)).

Indeed, an agency's decision should only be reversed when "it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Henry, supra, 81 N.J. at 579-80 (citing Campbell, supra, 39 N.J. at 562). Our review is restricted to four inquiries:

"(1) whether the agency's decision offends the State or Federal Constitution;

(2) whether the agency's action violates express or implied legislative policies;

(3) whether the record contains substantial evidence to support the findings on which the agency based its action; and

(4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." [In re Taylor, supra, 158 N.J. at 656 (quoting Brady v. Bd. of Rev., 152 N.J. 197, 210-11 (1997)).]

Governed by these principles, we are persuaded that the agency's final decision is supported by substantial credible evidence and is founded in law.

The purpose of the Hotel and Multiple Dwelling Law is to protect the health and welfare of the public by ensuring they have decent, standard and safe living accommodations. Terrey v. Sheridan Gardens, Inc., 163 N.J. Super. 404, 407 (App. Div. 1978). In furtherance of that legislative purpose, carbon monoxide alarms are required in multiple dwelling buildings pursuant to N.J.A.C. 5:10-28.1 and N.J.A.C. 5:10-1.6(a). The question is whether the requirement imposes an obligation on a condominium association to install and maintain carbon monoxide alarms in individual units, not just in common areas.

As the ALJ set forth in his written opinion: "[a]dministrative decisions considering this issue have consistently required condominium associations to ensure that each dwelling unit is equipped with adequate safety devices, such as carbon monoxide alarms and smoke detectors." In reaching this conclusion he relied in part on his prior unpublished opinion in Dep't of Cmty. Affairs v. Baldwin Ave. Condo. Ass'n, 2004 N.J. Agen. Lexis 877 (N.J. Adm.), aff'd, 2005 N.J. Agen. Lexis 1372 (N.J. Adm.). The ALJ also determined that the condominium association's obligation to install, repair and maintain carbon monoxide alarms was concurrent with that of individual unit owners, as is the case with smoke alarms. Three Hundred Twenty Five Saw Mill Rd. v. Bureau of Hous. Inspection, Dep't of Cmty. Affairs, 96 N.J.A.R.2d (Vol. 2) 69 (Dep't of Cmty. Affairs); Florence Tollgate Condo. Ass'n v. Bureau of Hous. Inspection, Dep't of Cmty. Affairs, 5 N.J.A.R. 5 (Dep't of Cmty. Affairs 1983). He also relied upon N.J.A.C. 5:10-1.6(c), which imposes upon owners of multiple dwellings, such as Prospect Towers, the responsibility for the safety and maintenance of any building or facilities described in the Hotel and Multiple Dwelling Law, and upon N.J.A.C. 5:10-4.1(c), which imposes the responsibility concurrently with that of owners of individual units.

The Condominium Act authorizes condominium associations to enter individual units for the purpose of maintenance, repair or replacement of any common elements. N.J.S.A. 46:8B-15(b). Common elements are defined as "[a]ll other elements of any improvement necessary or convenient to the existence, management, operation, maintenance and safety of the condominium property or normally in common use." N.J.S.A. 46:8D-3(c)(vii). Common elements are not defined in the Hotel and Multiple Dwelling Act.

Prospect Towers' master deed and by-laws also grant the authority to the condominium association to access individual units when necessary. As the ALJ noted, section 25 of the master deed grants to the condominium association the irrevocable right to access individual units "for the maintenance, repair, or replacement of any of the common elements." The by-laws in Article VIII, section 6A also permit the condominium association to perform "maintenance, repairs and replacements to the '[c]ommon [e]lements' whether located inside or outside of the unit," and to charge all members of the condominium association for the cost of this "[c]ommon [e]xpense."

As the ALJ concluded, carbon monoxide alarms, similar in nature to smoke alarms, are appropriately characterized as safety equipment which constitutes a common element within the definition of the Condominium Act and the Hotel and Multiple Dwelling Law. Prospect Towers is therefore required to abate that unsafe condition by virtue of the installation of the alarms as common elements, a responsibility that it shares concurrently with individual unit owners in accord with N.J.A.C. 5:10-4.1(c). The agency's decision was supported by substantial credible evidence and was neither arbitrary, capricious nor unreasonable.



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