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Kelley v. Morris County Board of Construction Appeals

July 22, 2008

TUCKER M. KELLEY, PLAINTIFF-APPELLANT,
v.
MORRIS COUNTY BOARD OF CONSTRUCTION APPEALS, AND THE TOWNSHIP OF ROCKAWAY UNIFORM CONSTRUCTION CODE OFFICIAL, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1110-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued July 8, 2008

Before Judges Parker and Gilroy.

Plaintiff Tucker M. Kelley appeals from the December 3, 2007 order of the Law Division, which affirmed the March 22, 2007 decision of the Morris County Board of Construction Appeals (Board), "uphold[ing] the Notice of Violation and Order to Terminate and the Notice and Order of Penalty" issued by the Township of Rockaway Construction Official on September 28, 2006. We affirm in part; reverse in part; and remand to the Board for further proceedings consistent with this opinion.

Plaintiff is the owner of property known and designated as Block 30503, Lot 12 in the Township of Rockaway (the Property). Under the existing zoning regulations, only one principal use is permitted on the Property. Contrary to the zoning regulations, the Property contains two residential structures: a single-family dwelling and a carriage house. The carriage house formerly contained a garage and a one-bedroom apartment and is the subject of this action.

On November 30, 1999, plaintiff filed an application with the Rockaway Township Building Department (Building Department) for a construction permit to renovate the carriage house. In conjunction with the application, plaintiff submitted construction plans dated November 16, 1999. The first page depicts proposed architectural drawings of each of the four sides of the carriage house. The drawing designated "rear elevation" depicts an overhead garage door on the right side of the rear portion of the carriage house with a pedestrian doorway located immediately to its left.*fn1

The second page contains construction plans for the first and second floors. The diagram designated "first floor" shows a proposed garage eighteen-foot-ten-inch long by ten-foot wide, with an overhead garage door located at the rear of the structure. The drawing also depicts a proposed dining room and kitchen on the first floor. The second floor diagram depicts a bedroom, living room, bathroom, and an outside deck. The plans do not reference the installation of central air conditioning. In addition to the construction permit, various sub-code permits were issued as required by the State Uniform Construction Code Act (UCC).*fn2

Plaintiff applied to the Building Department for a certificate of occupancy (C/O), describing the work performed as: "rebuild second story of dwelling."*fn3 The printed application form for the C/O contains the following provision above plaintiff's signature: "A set of 'As Built' or amended drawings is required if the building or structure deviates from the approved plans filed with the construction permit. Use space below to describe any deviations from approved plans[.]" A second provision immediately above the signature line provides in pertinent part: "I hereby attest that to the best of my knowledge, all work has been completed in accordance with the approved plans, permit and Regulations." On November 16, 2000, a C/O was issued for the carriage house signed by Andrew Sanfillippo as Construction Official.

On September 26, 2006, Dennis Creran, a Township building inspector and zoning officer, made an inspection of the exterior of the carriage house. Creran's inspection disclosed that the structure had not been remodeled in accordance with the building plans submitted by plaintiff at the time the construction permit was issued. The overhead garage door had not been installed on the rear of the premises and the pedestrian doorway was more centrally located than depicted on the plans.

On September 28, 2006, Sanfillippo issued plaintiff a Notice of Violation and Order to Terminate (NOV), stating in pertinent part that plaintiff was in violation of the UCC and the regulations promulgated thereunder: "[N.J.A.C.] 5:23-2.14 converted garage to living space/air conditioning unit done without a permit." The NOV directed plaintiff to terminate the violations on or before October 13, 2006. On the same day that Sanfillippo issued the NOV, he also issued plaintiff a Notice of Penalty (NOP), which stated in relevant part: "On 09/26/06, you were found to be in violation of the [UCC] and Regulations promulgated thereunder, in that you . . . failed to obtain a construction permit . . . ." The NOP also directed plaintiff to pay a penalty in the amount of $500 for each violation, for a total penalty for $1,000, and informed plaintiff that for each week that any violations remained outstanding after October 13, 2006, he would be subject to an additional penalty of $500 per week until the violations were corrected.

On October 2, 2006, plaintiff filed an appeal from the two notices with the Board. The Board conducted a hearing on the appeal on January 25, 2007, and February 22, 2007. Testifying on behalf of the Township were Sanfillippo and Creran. Testifying on behalf of plaintiff were Raymond Witwick, a former sub-code inspector of the Township, and plaintiff.

Creran testified as follows. Creran made a visual inspection of the outside of the carriage house on September 26, 2006. After his inspection, he reviewed the building plans on file with the Building Department and confirmed that the carriage house had not been remodeled in accordance with the plans, as the overhead garage door had not been installed and the pedestrian doorway was more centrally located than depicted on the plans. He also observed a central air conditioning compressor on the Property, although the plans did not indicate that central air conditioning was to be installed in the carriage house, and no permit had been issued by the Building Department for the installation of the compressor. Moreover, his review of the Township's files failed to disclose that plaintiff had filed an amended set of plans depicting the carriage house as built.

Lastly, Creran testified that he had made an interior inspection of the premises on November 16, 2007. His inspection disclosed that the living room area on the second floor had been converted into a second bedroom, and that the garage area on the first floor had been converted into "living quarters" with a throw rug or mat on the floor, and contained a couch, television, and clothes closet.

Sanfillippo testified that he has been employed with the Township since 1987, first as a building inspector and zoning officer, then as the Acting Construction Official, and since 1999, as the Construction Official. Sanfillippo had accompanied Creran on the September 26, 2006 inspection of the outside of the carriage house, and confirmed Creran's testimony that the Township's file disclosed that the building had not been constructed in conformance with the original building plans. Sanfillippo stated that to have installed the central air conditioning compressor, plaintiff was required to have obtained an electrical permit, but none was issued. Based on his review of the Township's files, he issued the NOV and NOP.

After the Township rested, plaintiff called Witwick as his witness. Witwick was employed by the Township as a plumbing and electrical sub-code official from December 30, 1999, through October 16, 2000. He was also licensed by the State as a construction official and authorized to perform building and fire inspections. Pursuant to an understanding with ...


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