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Township of Harrison v. Combs

November 19, 2010

TOWNSHIP OF HARRISON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KIRBY COMBS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1654-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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