Opinion
DOCKET NO. A-2998-14T4
06-30-2016
MARGARET CHUDZIAK and DARIUS MICHALSKI, Plaintiffs-Appellants, v. BERGEN COUNTY CONSTRUCTION BOARD OF APPEALS and BOROUGH OF UPPER SADDLE RIVER, Defendants-Respondents.
Garth A. Molander, attorney for appellants. Julien X. Neals, Bergen County Counsel, attorney for Bergen County Construction Board of Appeals (Frank P. Kapusinski, Assistant Bergen County Counsel, of counsel and on the brief). Robert T. Regan, attorney for respondent Borough of Upper Saddle River.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer, Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3240-13. Garth A. Molander, attorney for appellants. Julien X. Neals, Bergen County Counsel, attorney for Bergen County Construction Board of Appeals (Frank P. Kapusinski, Assistant Bergen County Counsel, of counsel and on the brief). Robert T. Regan, attorney for respondent Borough of Upper Saddle River. PER CURIAM
Plaintiffs Margaret Chudziak and Darius Michalski appeal from a February 4, 2015 trial court order affirming the Bergen County Construction Board of Appeals' (Board) decision to dismiss their appeal of a construction violation, and enter an award of $20,000 in civil penalties to the Borough of Upper Saddle River (Borough) for plaintiffs' continuous non-compliance with the State construction code. After our review of the record, we affirm in part, reverse in part, and remand for further fact-finding regarding the assessment of penalties.
Plaintiffs are residents and co-owners of a single-family dwelling in the Borough. In 2008, plaintiffs performed unauthorized construction on their home. In October of that year, James Dougherty, a construction official for the Borough, observed the construction while in the home due to an unrelated matter. Dougherty determined that plaintiffs had removed walls, including weight-bearing walls, without obtaining the requisite permits. Plaintiffs also removed stair railings in connection with the ongoing work, and had exposed electrical work. As a result, Dougherty issued plaintiffs Violation No. 2008-0037 (violation one) for an unsafe and imminent hazard. The notice and order advised plaintiffs they would incur a $2000 per week fine until the structure was either vacated or brought into compliance. The order also informed plaintiffs of their right to appeal the violation to the Board. Plaintiffs did not file an appeal. Rather, they obtained a permit to rectify the issues noted in the violation.
In December 2011, the Borough's zoning office apprised Dougherty that more unauthorized work had been completed at plaintiffs' home. By way of letter to plaintiffs, Dougherty issued three more violations: Violation No. 2011-0056 (violation two); Violation No. 2011-0057 (violation three); and Violation No. 2011-0058 (violation four). Violation two cited plaintiffs for failure to request the required inspections in connection with the acquired permit. The violation imposed a penalty of $500, plus a recurring weekly penalty of $150, until compliance was attained. Similar to the initial violation, plaintiffs were advised of their right to appeal to the Board. They did not file an appeal.
In violation three, plaintiffs were cited for construction of a new staircase without inspection by the Borough. The notice and order informed plaintiffs that they would incur a $2000 per week fine until the structure was brought into compliance. Plaintiffs were advised of their right to appeal, but did not do so.
Violation four cited plaintiffs for installing skylights without a permit. The violation assessed a penalty of $2000, and an additional recurring weekly penalty of $250, until compliance was achieved. Plaintiffs were informed of their right to appeal, but as with prior violations, no appeal was filed.
On January 16, 2012, plaintiffs were issued their fifth violation, Violation No. 2012-0001 (violation five). The violation was for plaintiffs' failure to permit entry to Dougherty for an inspection of the property. Plaintiffs were fined $250. Unlike their responses to the prior violations, plaintiffs filed an appeal to the Board.
The hearing to address plaintiffs' appeal was originally scheduled for February 14, 2013, but adjourned to March 14, 2013. Following the hearing, the Board issued a written decision in favor of the Borough and upheld the $250 penalty assessed in connection with violation five. The Board cited to N.J.A.C. 5:23-2.29, and stated that the provision "expressly authorize[d] entry by construction officials into dwellings where construction [was] ongoing." Moreover, the Board noted that under the same provision, home owners are deemed to consent to such inspections during normal business hours. Further, the Board found the testimony of Dougherty credible as to his several attempts to inspect the property since 2008. In contrast, the Board found Michalski's testimony to be "incredible, and worse, misleading and obstructionist."
During the hearing, the Board denied a request for an adjournment by Michalski. Following the direct and cross-examination of Dougherty by the Board and Michalski, the Board asked Michalski to present his evidence. Michalski requested an adjournment, citing as the basis that his recently hired counsel was unable to attend the proceeding. Michalski presented a written adjournment request from his counsel to the Board wherein counsel stated that he had a time conflict concerning a civil case on the same date.
After review of the letter, the Board denied Michalski's request. In its written decision, the Board found that the adjournment request was made in the midst of the proceeding, following the examination of Dougherty. Moreover, the Board noted that the request did not specify when counsel for plaintiffs was retained, which the Board found pertinent to its adjournment request analysis. The Board also reasoned that since the hearing was scheduled for 6:15 p.m., there could be no time conflict for plaintiffs' counsel.
Following the Board's decision upholding violation five, plaintiffs filed a complaint in lieu of prerogative writs in the Law Division on April 30, 2013. The complaint challenged the Board's decision as to violation five, and also alleged that it erred in not considering violations two and four at the hearing and in its decision.
On July 31, 2013, the Board moved to dismiss plaintiffs' complaint finding plaintiffs were only seeking monetary damages and not reversal of the decision. A hearing was held on the motion. At the hearing, it was determined the Borough was not served with plaintiffs' complaint, and additional briefing was required as to plaintiffs' demands for monetary damages. The judge ordered that the Borough be served "forthwith," and that plaintiffs were to submit a memorandum to the court and defendants concerning their claim for monetary damages.
The Borough filed its answer to plaintiffs' complaint on December 12, 2013. That same day, the Borough filed a counterclaim seeking recovery of the monetary penalties related to all five violations issued to plaintiffs from 2008 to 2012 by Dougherty and the Borough.
A second hearing was held on the Board's motion for dismissal on January 7, 2014. Following the hearing, the judge entered an order granting the Board's motion and dismissing plaintiffs' claims for monetary damages.
The Borough moved for summary judgment on its counterclaim. The Borough alleged that as of January 15, 2014, plaintiffs owed a sum total of $560,235.29 for outstanding civil penalties in connection with the five construction violations.
Plaintiffs filed an amended complaint in May 2014. The complaint alleged the Board's decision was arbitrary and capricious (count one); the decision was unsupported by substantial credible evidence (count two); they were denied due process by not having meaningful opportunity to be heard (count three); the Board denied their right to counsel, as permitted under N.J.A.C. 5:23A-2.2(a) (count four); and the Board's treatment amounted to an equal protection violation (count five).
Pursuant to a May 13, 2014 order, plaintiffs were to serve the amended complaint on the Borough and Board within five days. The order also permitted plaintiffs to seek sanctions against the Borough, and established the date for oral argument on the Borough's motion for summary judgment and plaintiffs' motion for sanctions, if their motion was filed promptly. As plaintiffs moved for sanctions in accord with the order, the judge heard argument on May 29, 2014, on both motions.
Following the hearing, the judge issued separate orders for plaintiffs' motion for sanctions and the Borough's motion for summary judgment. An order memorializing the judge's denial of plaintiffs' sanctions motion was entered on June 18, 2014.
On September 23, 2014, the judge issued his amended written decision regarding the Borough's summary judgment motion. The judge found in favor of the Borough on its counterclaim in the sum of $2000 as to violation three; $2000 as to violation four; and upheld the $500 fine for violation two. It was determined that the matter would proceed to trial "on all issues" of violation five, and that hearings would be held on violations one and two "as to whether the weekly occurring fines [were] fair and reasonable and not irrational or excessive." The judge further granted the Borough's motion for summary judgment as to liability in connection with violations one and four. An order was entered on October 7, 2014, memorializing the judge's written decision.
Plaintiffs did not appeal the June 18, 2014 order denying their motion for sanctions, or the October 7, 2014 order granting summary judgment in favor of the Borough.
On September 19, 2014, the Borough served plaintiffs with an offer of judgment in the amount of $20,000. Plaintiffs did not accept the Borough's offer, and the matter proceeded to trial.
The matter was tried on December 3, 2014. The judge issued a written decision on January 20, 2015, affirming the Board's decision to deny Michalski's request for an adjournment. The judge found that $20,000 was a "fair and reasonable amount for the penalties" under violations one, two and five. Judgments were entered in favor of the Borough in the amount of $14,750 for violation one; $5000 for violation two; and $250 for violation five. An order memorializing all judgments, and affirming the Board's March 26, 2013 decision, was entered on February 4, 2015.
Plaintiffs' filed a notice of appeal on March 3, 2015. An amended case information statement was filed by plaintiffs on March 17, 2015.
Plaintiffs raise the following points on appeal:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING CIVIL PENALTIES TO DEFENDANT [THE BOROUGH] BECAUSE THE TRIAL DECISION IS NOT SUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE TRIAL RECORD.
A. There was no credible evidence to the contrary, and there was no evidence to refute the plaintiff[s'] expert's testimony that an unsafe condition did not exist to warrant civil penalties with respect to [violation one] (no permit, unsafe condition and imminent hazard).
B. The penalties awarded to [the Borough] were unreasonable as applied to the specific facts involved.
C. The medical and personal circumstances faced by the plaintiffs in 2008 were not given
due consideration and were actually disregarded in assessing whether continuing penalties should be awarded to [the Borough].
D. The Uniform Construction Code is not a fee shifting statute, and civil penalties cannot be awarded on such basis or rationale.
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT FAILED TO FOLLOW THE [N.J.A.C. 5:23A-2.2.]
In their reply brief, plaintiffs further contend:
[POINT III]
THE JUDGMENT SHOULD BE REVERSED BECAUSE THE FACT[-]FINDING HEARING ESTABLISHED THAT THE REOCCURRING PENALTIES WERE NOT RATIONALLY RELATED TO AN UNSAFE STRUCTURAL CONDITION OR IMMINENT HAZARD.
A. The December 3, 2014 hearing was a proper fact-finding hearing to determine whether the reoccurring penalties were fair and reasonable and not irrational or excessive.
B. [The Borough's] reliance on [State of New Jersey, Dep't of Cmty. Affairs v. Wertheimer, 177 N.J. Super. 595, 600 (App. Div. 1980),] is misplaced.
[POINT IV]
THE BOARD HEARING CONDUCTED ON MARCH 14, 2013[,] VIOLATED PROVISIONS OF THE ADMINISTRATION PROCEDURES ACT AS MANDATED BY THE ENABLING STATUTE N.J.S.A. []52:27D-124G,
THUS DEPRIVING THE PLAINTIFFS OF DUE PROCESS.
A. N.J.S.A. []52:27D-119 et seq. is administered and implemented by the provisions of N.J.A.C. []5:23A-1.1 et seq.
B. [The Board's] cited authority is distinguishable on the facts and law with respect to plaintiffs' argument that they were deprived of the right to appear with counsel at the [Board] hearing.
C. Appearing with counsel at a construction board of appeals is a property interest conferred by N.J.S.A. []52:27D-119 et seq., because the State Uniform Construction Code Act requires the administration and implementation of its provisions pursuant to N.J.A.C. []5:23A-1.1 et seq.
D. The [Board] controlled the manner the hearing was conducted, including the sequence of the party appearances and presentment of their respective case.
We first address plaintiffs' contention that the trial court erred in affirming the Board's March 26, 2013 decision dismissing their appeal as to violation five and upholding its determination to deny the request for an adjournment. Plaintiffs argue that the judge's decisions lacked sufficient credible evidence denying them due process during the hearing due to the Board's failure to adjourn the proceeding and to allow their counsel to be present. Plaintiffs also argue that their right to cross-examine Dougherty during the appeals hearing was violated based upon Dougherty's provision of a "briefing package" to the Board at the beginning of the hearing without provision of the package to Michalski.
In dismissing plaintiffs' appeal of violation five, the Board reasoned that N.J.A.C. 5:23-2.29 "expressly authorize[d] entry by construction officials into dwellings where construction [was] ongoing." The Board noted that the provision "expressly provides that homeowners are deemed to consent to such inspection" by a construction official.
In further support of its decision, the Board determined that Dougherty's testimony concerning his efforts to inspect the property over the prior four-and-a-half years was credible, while Michalski's testimony in defense was "incredible, and worse, misleading and obstructionist." Upon review of the testimony and evidence provided, which included the email correspondence submitted by Dougherty between himself and plaintiffs as to the final inspection date, the Board concluded "that [plaintiffs] did in fact deny access to the [p]roperty." Accordingly, the Board dismissed plaintiffs' appeal of violation five as being without merit.
Any party to an action before a construction board of appeals may appeal the board's decision to the Law Division via complaint in lieu of prerogative writs because the board, although a State agency established and organized under the Department of Community Affairs, only possesses county-wide jurisdiction. N.J.A.C. 5:23A-2.1; see also Bell v. Twp. of Bass River, 196 N.J. Super. 304, 310 (Law Div. 1984). In our review, we apply the same limited standard as the trial court to a local administrative agency's decision. Bressman v. Gash, 131 N.J. 517, 529 (1993). D. Lobi Enters., Inc. v. Planning/Zoning Bd. of Sea Bright, 408 N.J. Super. 345, 360 (App. Div. 2009). Both the Law Division and the Appellate Division review a construction board's decision under the substantial evidence standard, affording deference to the local administrative agency's broad discretion. Ibid. The construction board's determination "will be set aside only when it is arbitrary, capricious or unreasonable." Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). We are not, however, in any way "bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co., Inc. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
In support of its decision to uphold violation five, the Board cited to N.J.A.C. 5:23-2.29, which provides in pertinent part:
(a) The owner of any premises upon which a building or structure is to be constructed shall be deemed to have consented to inspection, by the enforcing agency, of the entire premises and of any and all construction being performed on it until a certificate of occupancy has been issued.
(b) An inspector, or team of inspectors, on presentation of proper credentials, shall have the right to enter and inspect such premises, and any and all construction thereon, for purposes of insuring compliance with the provisions of the applicable construction permit, and the regulations. All inspection pursuant to the act and the regulations shall be between the hours of 9:00 [a.m.] and 5:00 [p.m.] on business days, or when construction is actually being undertaken[.]
Although not cited therein, we note that N.J.A.C. 5:23-2.31(b)(2) also provides support for the Board's decision.
Anyone who knowingly refuses entry or access to an inspector lawfully authorized to inspect any premises, building or structure pursuant to the act or the regulations, or who unreasonably interferes with such an inspection, shall be subject to a fine of not more than $250.
Dougherty, in his capacity of construction official, was entitled to inspect plaintiffs' property during normal business hours due to plaintiffs' home undergoing on-going construction from October 2008. At the hearing before the Board, Dougherty testified that he and plaintiffs agreed that a final inspection of plaintiffs' home would be conducted on January 13, 2012. This deadline was previously extended from December 2011 by Dougherty due to plaintiffs' vacation plans. The final inspection was scheduled in response to plaintiffs' construction of a new staircase and skylights in 2011. Dougherty testified that he informed plaintiffs prior to the inspection that if he was not permitted to inspect the property on the agreed upon date, a violation would be issued.
One day prior to the inspection, plaintiffs emailed Dougherty seeking additional time before a final inspection. Plaintiffs noted that construction on the new staircase and skylights had yet to be completed, and advised Dougherty that they would contact him "within the next few days" to reschedule. A few days following receipt of plaintiffs' January 12, 2012 email, Dougherty responded and informed plaintiffs that the deadline for a final inspection had passed, and as a result, a violation was issued.
We conclude there was sufficient credible evidence in the record, in the form of testimony from Dougherty and emails exchanged between the parties, establishing January 13, 2012, as the date for the final inspection. Dougherty was to inspect plaintiffs' home to determine whether the new staircase and skylights were in compliance with the applicable code. Dougherty informed plaintiffs prior to the inspection that a violation would be issued if he was not permitted to enter the home on the agreed upon date. We are satisfied that when plaintiffs emailed Dougherty one day before the final inspection to request an extension, this was tantamount to a refusal of entry for purpose of a violation of N.J.A.C. 5:23-2.31(b)(2).
Although the Board's bases for finding a violation lacked reference to these emails and Dougherty's attempt to inspect on January 12, we conclude that the Board's finding of a violation due to the passage of time from the original request and the lack of credibility by Michalski was not arbitrary or capricious.
In upholding its decision to deny Michalski's request for an adjournment, the Board stated:
The Board typically requires that adjournment requests be made [forty-eight] hours prior to the hearing. Additionally, the March 14, 2013 hearing date was the second time the matter was listed for a hearing. Mr. Michalski testified that he hired a lawyer only at [3 p.m.] on March 14, 2013. The Board does not find this
testimony credible, and even if it true[,] does not present basis to adjourn the hearing.
As the Board explained to Mr. Michalski at the hearing, there is no absolute right to counsel in a proceeding before the Board. This is particularly true where, as here, the hearing has actually commenced, and sworn testimony been taken, before the adjournment request is even articulated.
At the hearing, Mr. Michalski proffered a written adjournment request, phrased as an "[Affirmation] of Engagement," from his purported attorney, Garth Molander. The Board denied this request, for several reasons. Mr. Molander's statement, which Mr. Michalski proffered, did not say when Mr. Molander was purportedly retained or consulted; this would be relevant to an adjournment request. Mr. Molander merely stated that he had a conflict, involving a civil matter in which Applicant Margaret Chudziak was a party. . . . Moreover, even if Mr. Molander was engaged during the day of March 14, 2013 in a civil litigation matter in the Bergen County Courthouse, as his written statement contends, the Board also notes that Mr. Molander would apparently have no known conflict at the actual time of the hearing of the instant appeal, which commenced at approximately 6:15 [p.m.] the evening of March 14, 2013. If anything, any appearance by counsel on [Chudziak's matter] would have placed Mr. Molander in [c]ourt — right next door to the appeal hearing location — just prior to the appeal hearing actually proceeding. Under these circumstances, the Board believes [that] an adjournment is inappropriate if the request is even bona fide at all.
We have held that "'[t]he granting of trial adjournments rests within the sound discretion of the trial court.'" State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.) (quoting State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)), certif. denied, 58 N.J. 335 (1971). An abuse of discretion only occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (citation and internal quotation marks omitted). And pursuant to N.J.A.C. 1:1-9.6(d), adjournments "will be granted only for good cause."
Applying these principles to the Board's decision to deny Michalski's adjournment request, we are satisfied that the Board did not abuse its discretion. Michalski appeared on his own behalf at the hearing. He made no request for an adjournment until after the direct and cross-examination of Dougherty concluded. Notably, the hearing was adjourned with the knowledge of the parties from February 24, 2013 to March 14, 2013. During that interim, Michalski did not seek a further adjournment but chose to wait until the hearing had commenced to make his request.
We are unpersuaded by plaintiffs' argument that Michalski had a right to counsel at the Board hearing, and, by the denial of his adjournment request, he was denied due process. N.J.A.C. 5:23A-2.2(a), which governs the procedure for the Board, states that "[p]arties shall be allowed to appear through legal counsel or public or corporate officers." We construe the plain language of this provision of the Administrative Code to authorize the "appearance" of counsel for the party before the Board, but not to guaranty counsel to parties who have not timely retained an attorney.
Accordingly, we discern no basis to disturb the February 4, 2015 order affirming the Board's decision to uphold violation five and the imposition of a $250 fine. Defendant's remaining arguments concerning the March 14, 2013 appeals hearing lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E).
We next address whether the judge erred in entering a $20,000 judgment in favor of the Borough for civil penalties associated with violations one, two and five. Plaintiffs contend that this award constituted an abuse of discretion by the judge, as the $20,000 amount had little to no connection to the civil penalties assessed against them by the Borough for the various violations. Plaintiffs argue that they were in compliance with violation one, and that any non-compliance with the existing violations should be excused for reasons of good faith.
In the judge's January 20, 2015 written decision, which provided the basis for the February 4, 2015 order, he opined regarding the award of civil penalties:
The plaintiffs had the burden of showing that the fines were unreasonable and unfair. At trial, Chudziak testified as to the merits of the appeal. Her testimony was
further supported by the testimony of Michalski, Chudziak's mother and Chudziak's pastor. Each of their testimony failed to give weight as to the fairness of the fines. At trial[,] the plaintiffs presented testimony that only addressed the merits of the appeal, and made no mention of the fairness or reasonableness of the penalties.
The Borough spent ample time and effort dealing with this matter. It even lowered its demands from approximately $540,000 to $20,000. The plaintiffs failed to show that this amount was unfair or unreasonable. The [c]ourt finds that they were.
Therefore, the [c]ourt finds that $20,000 is a fair and reasonable amount for the penalties under [violations one, two and five]. The [c]ourt enters a judgment in favor of the Borough on the [c]ounter-claim] as follows: (a) $14,750 on the penalties for [violation one], (b) $5000 on the penalties for [violation two], and (c) $250 for [violation five].
Our review of the factual findings made by the trial judge in a non-jury trial is limited. Estate of Ostlund v. Ostlund, 391 N.J. Super. 390, 400 (App. Div. 2007). "[W]e do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence." Mountain Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App. Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)). In general, the judge's factual "findings . . . should not be disturbed unless . . . they are so wholly insupportable as to result in a denial of justice[.]" Rova Farms Resort, Inc., v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974) (citation and internal quotation marks omitted). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
Pursuant to Rule 1:7-4, a court must "find the facts and state its conclusions of law thereon in all actions tried without a jury[.]" Our Supreme Court has expounded on this essential obligation and held that the "[f]ailure to perform that duty constitutes a disservice to the litigants, the attorneys and the appellate court. Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions." Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (citation and internal quotation marks omitted).
Here, the judge provided no factual or legal basis to support the award of $20,000 in civil penalties to the Borough; an award in marked contrast to the Borough's counterclaim which sought approximately $540,000 in civil penalties for the violations. While the judge attributed penalties for each violation, he failed to correlate his findings with these amounts. As well, the judge provided no rationale for the decision to award differing amounts for violations one, two and five. Aside from holding that the $20,000 judgment to the Borough was "fair and reasonable[,]" the judge provided no other bases for awarding this amount.
We note this amount is the settlement amount offered by the Borough prior to trial; an offer rejected by plaintiffs. --------
As the judge failed to provide an adequate statement of reasons for the damages awarded per Rule 1:7-4, we are constrained to vacate the judgment and remand for further fact-finding as to damages.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION