November 19, 2010
TOWNSHIP OF HARRISON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KIRBY COMBS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1654-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 4, 2010
Before Judges Lisa and Alvarez.
Defendant Kirby Combs appeals from a December 31, 2009 Law Division judgment requiring he vacate certain premises in Harrison Township and pay penalties totaling $10,800 levied as a result of his continuous residence in the property over eighty-eight weeks without first obtaining a certificate of occupancy (CO). Combs has represented himself throughout these proceedings, including this appeal. We affirm.
The judgment granted defendant twenty days in which to file a motion to vacate pursuant to Rule 4:50-1. Combs instead filed this appeal.
To briefly iterate the relevant procedural history, Harrison Township issued a notice and order of penalty to Combs on March 20, 2008, as a result of the discovery that he and his family were living in the property. The Township had issued building permits prior to the start of construction, but no final inspections had been made, or even requested.
Combs appealed the March 20, 2008, notice and penalty to the Construction Board of Appeals (the Board), which denied his application on May 20, 2008. Combs did not appeal the decision issued by the Board.
The Township next filed a verified complaint and order to show cause in the Law Division in order to collect the penalties granted by the Board and to remove Combs and his family from the home. Combs is under the misapprehension that in order to proceed to the Law Division the Township needed to file an appeal. This is not correct.
The order to show cause issued September 22, 2009, and trial commenced October 30, 2009. On that date, Combs cross- examined the Township's sole witness, Jeffrey Kier, a construction official for Harrison Township. By the end of the court day, Combs was still in the midst of cross-examining Kier. Because of scheduling conflicts, the judge continued the matter without being able to fix a date. When the trial resumed on December 23, 2009, the court reviewed, for the benefit of the record, counsel's mailing of the notice of the hearing to Combs by ordinary and certified mail, return receipt requested. Although the green card had not been received, counsel produced the receipt and indicated the ordinary mail notice did not come back. The hearing was completed despite Combs's absence. Combs's appeal is from the December 31, 2009 judgment issued as a result of that proceeding.
It is undisputed that KDC Custom Builders, LLC, owned the relevant lot when zoning approvals and building permits were granted on July 28, 2006. KDC subsequently transferred ownership to Combs on April 24, 2007, for consideration of $1.
On an unspecified date, Kier received complaints that the property, although unfinished as far as the Township knew, was occupied. When Kier investigated, he witnessed children leaving the home and boarding a school bus, lights on at night and early in the morning, cars parked in front, as well as, on at least one occasion, Combs personally driving a vehicle into the garage adjoining the residence. Hence the Township issued the March 20, 2008 notice and order of penalty, citing Combs for "fail[ing] to request required inspections" and for "allow[ing] occupancy prior to receiving a certificate of occupancy." The Township imposed an initial $2000 penalty and informed Combs that an additional weekly penalty of $100 would be levied for occupancy of the premises after April 4, 2008.
In Combs's appeal notification to the Board, he acknowledged staying in the residence "from time to time," but claimed he did so to prevent thefts of construction materials, including "copper pipes, electrical wiring[,] electrical boxes[,] and lumber material." Combs indicated in the appeal notification that he would "call for all final inspections once the home is complete."
Prior to that hearing Combs called the Board office and requested a postponement. He was advised to send his request in writing, through email, by fax, postal mail, or personal delivery. Because Combs did none of those things, the Board entertained the matter despite the fact he was not present. Combs never appealed the Board's decision.
The Township has been refused access to the property. As a result, no final inspections have been made, most significantly, of electrical or sewer systems. Combs has continued to reside in the property, did not pay the fines and penalties, or obtain a CO.
Combs raises the following point:
CLAIMANT (KIRBY COMBS) [WAS] DENIED A TEMPORARY CERTIFICATE OF OCCUPANCY BASED ON ALLEGED OUTSTANDING FEES IMPOSED UPON  KDC CUSTOM BUILDERS LLC A LIMITED LIABILITY COMPANY, THEREFORE, HE SHOULD NOT HAVE BEEN FINE[D] A PENALTY OR AN EVICTION OF PROPERTY.
In his reply brief, Combs asserts this additional point:
CLAIMANT (KIRBY COMBS) [WAS] DENIED A TEMPORARY AND OR CERTIFICATE OF OCCUPANCY BASED ON OUTSTANDING PENALTY FEES IMPOSED BY THE STATE UNIFORM CONSTRUCTION CODE OF NEW JERSEY UPON KDC CUSTOM BUILDERS, LLC. IN [ACCORDANCE] WITH THE NEW JERSEY [STATUTE] AND ADMINISTRATIVE CODE A CERTIFICATE OF OCCUPANCY COULD BE ISSUED IF THE STRUCTURE DOES NOT SHOW TO BE AN UNSAFE STRUCTURE OR HAZARD TO THE PUBLIC. THE NOTICE AND ORDER OF PENALTY DID NOT DEEM THE STRUCTURE AS UNSAFE NOR IMMINENT HAZARD. THEREFORE, HE SHOULD NOT HAVE BEEN FINE[D] A PENALTY OR AN EVICTION OF PROPERTY.
We first address Combs's contention that only KDC, the prior owner, should have been fined. This argument lacks merit because the April 24, 2007 date of transfer preceded the March 20, 2008 violation by eleven months. It does not warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
We review the trial court's factual findings deferentially. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974) (holding that the findings of a trial judge sitting without a jury are "considered binding on appeal when supported by adequate, substantial and credible evidence").
As the Supreme Court recently noted: "[a] reviewing court is required to affirm the findings of the trial court if they could reasonably have been reached on sufficient credible evidence in the record." State v. Nunez-Valdez, 200 N.J. 129, 141 (2009). The Court added, "'[a]n appellate court "should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy."'" Ibid. (quoting State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964))).
The Court further emphasized that:
[a]n appellate court should not disturb the trial court's findings merely because "it might have reached a different conclusion were it the trial tribunal" or because "the trial court decided all evidence or inference conflicts in favor of one side" in a close case. A trial court's findings should be disturbed only if they are so clearly mistaken "that the interests of justice demand intervention and correction." In those circumstances solely should an appellate court "appraise the record as if it were deciding the matter at inception and make its own findings and conclusions." [Ibid. (quoting Johnson, supra, 42 N.J. at 162).]
The trial court's factual finding that the home was occupied by Combs and his family is amply supported by the credible evidence in the record. The court reasonably relied upon Kier's essentially unchallenged testimony.
Combs also argues that the municipality did not have the authority to deny him a temporary CO or to assess penalties. Neither proposition is correct.
The New Jersey Uniform Construction Code Act (NJUCCA) requires that a structure remain vacant "until a certificate of occupancy shall have been issued by the enforcing agency." N.J.S.A. 52:27D-133; see also N.J.A.C. 5:23-2.23(a); Dep't of Cmty. Affairs v. Atrium Palace Syndicate, 259 N.J. Super. 578, 581 (App. Div. 1992) ("N.J.A.C. 5:23-2.23 bars use or occupancy without certificates of occupancy."). COs must be issued when all requirements of the applicable regulations are met. N.J.A.C. 5:23-2.23(a)(1). But "all required utilities, including but not limited to water, sewer, electric and gas [must be] installed and in service." N.J.A.C. 5:23-2.23(k). This requirement clearly applies prior to occupation of a residence. See State v. C.I.B. Int'l, 83 N.J. 262, 270-71 (1980). Kier testified unequivocally that the Township has no information regarding these systems at Combs's property because they have been denied access to the home.
Combs also contends that the Township's imposition of fines and penalties was "malicious." The NJUCCA authorizes enforcing agencies to impose monetary sanctions on persons who violate the Act, N.J.S.A. 52:27D-138, including any person who "[v]iolates any of the provisions of this act or rules promulgated hereunder" or who "[f]ails to comply with any order issued by an enforcing agency or the department." N.J.S.A. 52:27D-138(a)(1), (3); see also N.J.A.C. 5:23-2.31(b)(1)(i),
(iii); DKM Residential Props. Corp. v. Twp. of Montgomery, 182 N.J. 296, 305--06 (2005) (noting that the code does not expressly limit the authority of municipal enforcing agencies to impose penalties). A person may be charged with a separate offense "for each week that he fails to comply with [an]  order validly issued by an enforcing agency or the department...." N.J.A.C. 5:23-2.31(b)(3). "[I]n the case of... [an] allowance of occupancy prior to receipt of a certificate of occupancy, an order to pay a penalty shall be issued immediately upon the discovery of the violation." N.J.A.C. 5:23-2.31(b)(4). The administrative code authorizes a fine of "[u]p to $2,000 per violation for... allowing a building to be occupied without a certificate of occupancy...." N.J.A.C. 5:23-2.31(e)(2).
Thus, the Township's decision to impose fines falls well within the regulatory guidelines. The initial penalty and subsequent weekly fines are expressly authorized. N.J.A.C. 5:23-2.31(b)(3), (e)(2). In fact, the Administrative Code authorizes the Township to assess up to $2000 for every week of unlawful occupancy. N.J.A.C. 5:23-2.31(b)3, (e)2. The amount imposed is well below the maximum. Nothing in the record leads us to conclude the fines and penalties were an arbitrary abuse of power.
Our role as an appellate court reviewing administrative action 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. [George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]
On the whole, "[o]ur function is to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)); see also Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 16 (2006).
"The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the [party] challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-44 (App. Div.), certif. denied, 188 N.J. 219 (2006); McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002); Barone v. Dep't of Human Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355, 356 (1987).
"It is settled that '[a]n administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference.'" Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (quoting In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997)). "Absent arbitrary, unreasonable or capricious action, the agency's determination must be affirmed." Ibid. (citing R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999)). Nonetheless, we are not bound by the agency's opinions on matters of regulatory law. Levine v. State, Dep't of Transp., 338 N.J. Super. 28, 32 (App. Div. 2001) (citing G.S. v. Dep't of Human Servs., 157 N.J. 161, 170 (1999)); see also Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
The heart of Combs's appeal is his mistaken notion that the Township is compelled to issue him a temporary CO upon request. This is simply not the case because no temporary CO can be issued without certain threshold requirements being met, including the submission of a written application. See N.J.A.C. 5:23-2.23(a)(1) and (i). No such application has been made. Therefore, there is nothing arbitrary, capricious, or unreasonable about the Township's failure to issue a temporary CO.
As a separate consideration, "[a]n applicant may be denied a temporary CO if there are outstanding fees or penalties due to a municipality." N.J.A.C. 5:23-2.23(g)(2). At this juncture, Combs owes the municipality $10,800, and until that sum is paid, the Township is not required to issue a temporary CO. This administrative exercise of discretion is also entitled to our deference.
Furthermore, and most significantly, a property must have all utilities in place such that the "health and safety of the building occupants" are not endangered. N.J.A.C. 5:23-2.23(g)(2). The Township has been unable to conduct a final inspection of electric or septic systems. No lawful temporary CO could be issued in any event.
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