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Juan Valdes v. City of Bayonne

July 12, 2012


On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2921-10.

Per curiam.


Submitted June 20, 2012

Before Judges A. A. Rodriguez and Reisner.

In this action in lieu of prerogative writs, plaintiff, Juan Valdes, appeals from the May 6, 2011, Law Division Order upholding the decision of the Construction Board of Appeals of the City of Bayonne (Construction Board), imposing fines pursuant to the Uniform Construction Code Act, N.J.S.A. 52:27D-119 to -141, and its regulations, N.J.A.C. 5:23-2.31, for unauthorized demolition and construction work. We affirm substantially for the reasons expressed by Judge Barry P. Sarkisian in his May 6, 2011, written opinion.

The facts are fully set forth in the Law Division's opinion. We provide a summary of the relevant facts to provide a context for our analysis.

On July 23, 2011, the Bayonne Building Department received an anonymous complaint regarding construction at Valdes' premises, a two-family house on 48th Street in Bayonne. After the Building Department verified that no permits had been obtained for construction at that address, Inspector Mike Porter visited the house that day at 10:00 a.m. He unsuccessfully attempted to gain access to the house's interior. He rang the bell and knocked on the door. Although no one answered, he could hear noises indicative of ongoing construction. Porter left a bright orangey-red "Stop Construction Order" posted on the front door of the home. The same sequence of events occurred on three other visits that day at 1:15 p.m., 3:00 p.m., and 4:00 p.m. Each time Porter returned to the house, the orders had been removed from the front door. After the last attempted inspection, Porter had issued two Stop Construction orders and two Refused to Provide Entry violations.

The next day, Valdes applied for a permit to replace sheetrock, however, such permit did not cover the scope of the work that was being performed at the house. That same day, Porter returned to Valdes' house. Valdes permitted Porter to enter, but restricted inspection to the first floor. Valdes refused Porter access to the second floor, which was rented to a tenant. Porter issued Valdes a third Refused Entry violation.

Porter, along with two other inspectors, finally gained access to the remainder of the house later that day. The inspectors saw the following: a bearing wall, which appeared to separate the living room and the bathroom, was removed; the ceiling was framed out and new sheetrock was being installed; wires were hanging down from the ceiling; the bathroom toilet and sink were removed; and an illegal unit was found in the basement.

The inspectors issued Valdes three additional violations for change of use, failure to comply with Stop Construction orders, and failure to obtain requisite building, plumbing and electrical permits. The inspectors explained the violations to Valdes during a meeting at the Building Department. During the meeting, Valdes became irate and the inspectors were able to obtain his signature on only two of the violations. The remaining violations were sent certified and regular mail to Valdes.

All notices of violation reference N.J.A.C. 5:23A-31 and advise that the violator has fifteen days from receipt of the order to request a hearing before the Construction Board. Valdes did not follow the prescribed procedure to request a hearing. Rather, he filed two complaints in the Special Civil Part of the Law Division seeking damages. These actions were dismissed for lack of jurisdiction.

Nearly two years later, Valdes decided to appeal the violations to the Construction Board. The Construction Board denied a hearing because Valdes had not filed the appeal within fifteen days of being issued the violations.

Valdes filed this action in the Special Civil Part. The action was then transferred to the Law Division. Following a hearing at which Judge Sarkisian heard the testimony of several witnesses and reviewed documentary evidence, the judge determined that the action was procedurally barred and lacking in merit. The judge first determined that the action was time-barred by virtue of Rule 4:69-6(a), which provides a forty-five day period of limitation to review a governmental decision or action, such as the violations issued here. Next, the judge rejected on the merits the allegation that Valdes was never served with the violations.

On appeal, Valdes raises: (1) "the City failed to follow Due Process; (2) Sufficiency of Notices; (3) the 'One Construction Permit' issue; and (4) the 'Penalty's ...

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