Opinion
DOCKET NO. A-3964-12T1
12-05-2014
NEW JERSEY DIVISION OF FIRE SAFETY, Petitioner-Respondent, v. MESIVTA KESER TORAH OF CENTRAL JERSEY, Respondent, and BELMAR PROPERTY HOLDING COMPANY, Respondent-Appellant.
Cadwalader, Wickersham & Taft LLP, attorneys for appellant (Israel Dahan and Brian Capitummino, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Fire Safety (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Debra A. Allen, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Rothstadt. On appeal from the Division of Fire Safety, Department of Community Affairs, Docket Nos. DFS-633-06, 633-06A, 633-06B, 263-08, 633-08, 633-08A, BHI-360-08, 358-08 and 359-08. Cadwalader, Wickersham & Taft LLP, attorneys for appellant (Israel Dahan and Brian Capitummino, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division of Fire Safety (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Debra A. Allen, Deputy Attorney General, on the brief). PER CURIAM
This appeal requires us to consider the scope of the Dormitory Safety Trust Fund Act (Act), L. 2000, c. 56, which mandates installation of automatic fire suppression systems in certain student housing. The Act was passed in the wake of a fatal dormitory fire at Seton Hall University in January 2000. We must determine whether the requirement applies to residential housing for students of a private Hebrew school. In particular, we must consider whether the law applies to a separate business entity that took title to the housing after the school, as prior owner, was cited for violating the Act.
The Act's provisions relevant to this appeal are codified at N.J.S.A. 52:27D-198.7 to -198.12, although other provisions are codified elsewhere. See N.J.S.A. 18A:72A-12.6 to -12.8.
Belmar Property Holding Company, LLC (BPHC) appeals from the February 2013 final order of the Commissioner of the Department of Community Affairs (DCA), adopting the initial decision of Administrative Law Judge Donald J. Stein, which imposed a penalty upon BPHC after finding, on cross-motions for summary decision, N.J.A.C. 1:1-12.5(b), that BPHC failed to install required automatic fire suppression systems in its housing for students of Mesivta Keser Torah of Central Jersey, Inc. (MKT), a private Hebrew School, in Belmar. Having considered BPHC's arguments in light of the facts and applicable legal principles, we affirm.
I.
Most of the facts are undisputed. MKT educates about 100 Orthodox Jewish males between the ages of thirteen and twenty-two. Its school building is located at 503 Eleventh Avenue in Belmar. MKT is not accredited by the State, does not issue high school diplomas, and receives little if any public support.
Until December 5, 2007, MKT or its dean, Rabbi Dovid Heinemann (Rabbi Heinemann), owned three residential properties that housed roughly fifty MKT students during the school year. MKT owned 1402 C Street, a three-story structure that housed about thirty students. Rabbi Heinemann held title to 319 Twelfth Avenue, consisting of two two-story buildings, with a total of seven bedrooms, housing at least fourteen students; and 411 Twelfth Avenue, another two-story building, with four bedrooms, housing at least eight students. Rabbi Heinemann maintained that he owned the two properties as designee for MKT.
Although we refer below to Rabbi Dovid Heinemann's son, Rabbi Joseph Heinemann, Rabbi Dovid Heinemann figures most prominently in the case, and we refer to him as "Rabbi Heinemann."
The three residences were all within a few blocks or less of MKT's educational building. During the school year, the residences were occupied only by MKT students; Rabbi Heinemann also stayed at 411 Twelfth Avenue on some weekends. Although each building had a common kitchen, MKT offered three meals a day to all its students. The parties disputed whether the bedrooms were each secured by keyed deadbolt locks.
Photographs depicted doors with some form of locking mechanism. However, Rabbi Heinemann declared that the doors did not have key-entry deadbolt locks.
MKT apparently referred to these buildings as dormitories. Undated promotional literature stated, "Mesivta Keser Torah of Belmar, New Jersey is pleased to announce the opening of its new High School dormitory." It is unclear from the brochure when MKT began utilizing its "dormitory." Its brochure referred to the school's founding in 1988, and stated that, with the addition of the dormitory, the education that had been available to Lakewood area students "for almost 20 years" would now be available to others.
Belmar Fire and Police Department reports indicated that 1402 C Street had been known as the "Farro-Geiger Guest House," apparently before MKT acquired it.
During 2006, local police and fire personnel responded to each of the three houses. On January 18, 2006, after 8:00 p.m., the Belmar Fire Department responded to a fire at 319 Twelfth Avenue. At that point, eight MKT students lived at the house, although only two were home at the time. Records of the fire department's response stated that the fire, located near the front entrance, was caused by a discarded cigarette butt. The fire marshal found several disabled smoke alarms, but one or two were operational and sounding. Local officials temporarily closed the home. Rabbi Heinemann, who arrived at the scene from his home in Lakewood, told fire officials that he would make arrangements for alternative housing of the students.
On August 28, 2006, the fire department responded to the sounding of smoke alarms at 411 Twelfth Street. No one was in the home at the time. The fire department found several cigarette butts and burn marks, but did not smell smoke. The fire department determined that there was no fire and reset the alarm.
The fire alarm at 1402 C Street sounded on September 21, 2006. It was determined that shower steam set off the alarm, which fire department personnel reset. The police report stated that the borough's fire marshal was to be "advised of the incident and the condition of the residence to be checked for any possible violations."
Personnel from the New Jersey Division of Fire Safety (NJDFS), within DCA, inspected the three houses on September 28, 2006. NJDFS determined that all three buildings were dormitories under the Act. According to a memorandum by the field representative, Rabbi Heinemann assured him that if the buildings were classified as dormitories, "he will upgrade whatever is needed to comply with the Uniform Fire Code." NJDFS later contacted the borough's construction code official and learned that 1402 C Street was classified as a R-1 use and the other residences were classified as single family residences.
The Rabbi noted that this would remove the buildings from the tax rolls. Chief Allen's memorandum attached borough tax records for the properties, but they were not included in the record.
On November 22, 2006, the Division issued initial notices of violations to MKT, which was deemed the owner of the three structures. The three notices found that the buildings were dormitories as defined in N.J.A.C. 5:70-1.5, and automatic fire sprinkler systems were required by N.J.A.C. 5:70-4.7(j). The notices required abatement in sixty days. The notices stated that 1402 C Street was classified as a R-1 use and the other residences as R-3, for single family residences. MKT and Rabbi Heinemann filed timely appeals.
Almost a year later, in October 2007, an inspection by DCA's Bureau of Housing Inspection, citing N.J.A.C. 5:10-1.12(e), found that MKT or Rabbi Heinemann had failed to post a fire code compliance certificate. Posting a fire code compliance certificate would reflect compliance with the Act. The inspection report found numerous other housing-related violations, including unremoved garbage on the premises; various housing elements in need of paint; the absence of viewing devices in the doors; and other violations of standards pertaining to doors. In an order issued November 29, 2007, the Commissioner mandated correction by January 28, 2008.
The orders described the three residences as dormitories. NJDFS argues before us that the documents are evidence that Rabbi Heinemann registered the buildings as dormitories. However, NJDFS has not provided actual registration documents signed by Rabbi Heinemann. The orders on their face do not reflect that Rabbi Heinemann was the source of the characterization of the properties.
On December 5, 2007, MKT and Rabbi Heinemann transferred title to the three properties. The grantee on each deed was listed as "BPHC/Or Meir, Inc." It is undisputed that Or Meir, Inc. (OMI) is the sole managing member of BPHC. BPHC was formed on December 3, 2007, just two days before it purchased the three properties. The three deeds stated that the consideration for the transfer was "$1.00 (with unpaid mortgage balance)." However, the State tax form, RTF-1, listed the consideration as only $1.00, without reference to the unpaid mortgage balance. The RTF-1 form for 1402 C Street was signed by Judith Heinemann, MKT's vice-president; Rabbi Heinemann signed the RTF-1 forms for the two properties that were titled in his name. Ms. Heinemann and Rabbi Heinemann also signed GIT/REP3 forms, entitled "Seller's Residency Certification/Exemption," which set forth the consideration as $1.00 and stated that the sale was eligible for tax exemption because the consideration paid was less than $1000.
The Realty Transfer Fee (RTF) is based on the consideration paid for real property, N.J.S.A. 46:15-7, which includes the amount of an assumed mortgage, N.J.S.A. 46:15-5(c). No fee is required if consideration is less than $100. N.J.S.A. 46:15-10(a). The fee is payable by the grantor unless it is a tax exempt entity. See Mesivta Ohr Torah Lakewood v. Twp. of Lakewood, 24 N.J. Tax 314, 327 n.1 (Tax 2008); see also N.J.S.A. 54:4-3.6. We do not address the issue of the grantors' liability for RTF in this case.
Notwithstanding these three signed documents, Rabbi Heinemann, and OMI's president, Zeev Rothschild, both declared in affidavits that BPHC purchased the three houses for $1.1 million, payable in monthly installments of $10,000. They said nothing about satisfying the prior mortgage debt referenced in the deeds. Rabbi Heinemann stated in December 2008 that MKT had received eleven payments. Rothschild stated that MKT was unaffiliated with BPHC or OMI.
Rothschild stated that after the transfer, the MKT students paid rent directly to BPHC. Apparently sometime after the title transfer, MKT distributed a memorandum addressed to "All M.K.T. Students," which provided a "list of available rooms and houses for rent in . . . proximity to the school." The three houses were included among nine properties in a list of "Past Residences." They were not included among eighteen properties in a list of "Recommended Residences." Although the memorandum was not dated, we infer the memorandum was distributed after MKT and Rabbi Heinemann transferred title to the houses, because Rabbi Heinemann declared that none of the properties on the list were owned by MKT, and the three residences were listed as "past residences."
Nonetheless, there is no evidence that the nature of the occupancy immediately changed as a result of the title transfer. In January 2008, State inspectors photographed signs posted in the houses stating, "Smoking Illegal in Dormitories." Signs were also posted in the buildings listing various school offices and their phone numbers.
Although not relevant to this appeal, Rothschild declared in January 2013 that as of May 2011, MKT students ceased living at 411 Twelfth Avenue, which BPHC had leased to a single family unassociated with MKT. He also stated that 319 Twelfth Avenue had been vacant since 2012, and was for sale.
After the sale, NJDFS, along with various code and municipal officials, conducted a reinspection of the buildings on January 24, 2008. Rabbi Joseph Heinemann, son of Rabbi Dovid Heinemann, provided entry to the three buildings. The inspection report noted the prior order to install automatic fire suppression systems. Several rooms were found to provide "sleeping accommodations for three and in some cases five individuals." Bedrooms "had dead bolt entry locks for privacy and security." "Coin operated laundry facilities were provided in all buildings." According to the inspection report, various other Uniform Fire Code violations were noticed.
On January 31, 2008, NJDFS issued notices of violation on BPHC for failure to install the automatic fire suppression system. The notices of violation and orders to correct cited N.J.A.C. 5:70-1.5 and N.J.A.C. 5:70-4.7. The notices required compliance within thirty days and warned that penalties of up to $5000 per day could be imposed. BPHC filed a timely appeal.
In April 2008, the Bureau of Housing Inspection conducted a reinspection to determine whether the violations it noticed in its November 2007 orders had been corrected. The various housing-related violations for 1402 C Street and 319 Twelfth Avenue were marked as "abated," but the failure to post a certification of fire inspection was marked "open." Our record does not include the reinspection report for 411 Twelfth Avenue.
For the alleged failure to comply with the November 29, 2007 order, the Bureau of Housing in May 2008 issued three notices of statutory violations and orders to pay penalties of $500 for each property. The notices were addressed to BPHC "c/o Joseph Heinemann." BPHC filed timely appeals.
The various appeals were consolidated before the Office of Administrative Law, and the parties filed cross-motions for summary decision. In an August 21, 2009 partial initial decision, Judge Stein found that fire suppression systems were required, because the three buildings were dormitories or similar accommodations, subject to N.J.S.A. 52:27D-198.9(a), which states:
Notwithstanding any law, rule or regulation to the contrary, all buildings used as dormitories, in whole or in part, or similar accommodations to house students at a public or private school or at a public or private institution of higher education, shall be equipped throughout with an automatic fire suppression system in accordance with the provisions of this section.
[(Emphasis added).]
Judge Stein held that, although MKT did not issue high school diplomas or receive significant public aid, it nonetheless qualified as a "private school," specifically, a "secondary school," under N.J.S.A. 52:27D-198.9(a)(4), which defines a school as "a secondary school, military school, or a boarding school." He also held that the dormitories were "at" the school, N.J.S.A. 52:27D-198.9(a), notwithstanding that they were a short distance away from the educational building. He found no basis in the plain language of the Act or its purpose to require dormitories to be located on school property.
In reaching his conclusion, Judge Stein noted that MKT touted its establishment of dormitories; MKT students were the exclusive residents of the buildings during the school year; signs in the buildings described them as dormitories; and bedroom doors had privacy locks. He also reasoned that the Act should be liberally construed to achieve its goal of promoting public safety. See N.J.S.A. 52:27D-193 (stating that the Uniform Fire Safety Act, N.J.S.A. 52:27D-192 to -213, is "remedial legislation necessary to protect life and property within this State from the danger of destruction by fire and explosion and shall be liberally construed to effectuate these purposes").
Judge Stein also found that although MKT transferred the properties to BPHC in December 2007, it still recognized the properties as dormitories. He noted that MKT included the properties in its memorandum of available housing. BPHC continued to rent exclusively to MKT students during the school year, and the buildings retained all the other indicia of dormitories. Consequently, the buildings were not subject to the Act's exclusion under N.J.S.A. 52:27D-198.9(a)(1), of dormitories that were neither owned nor recognized by the covered educational entity.
In a November 20, 2012 decision, Judge Stein denied BPHC's and MKT's motion for reconsideration of his determination that the properties were dormitories. Judge Stein also addressed the question of whether BPHC could be held liable for the penalties imposed by the Bureau of Housing Inspection in 2008 for the violations noted in the November 2007 orders served on Rabbi Heinemann. The Bureau's penalties were imposed for violations of the Hotel and Multiple Dwelling Law (HMDL), which requires a property owner to secure a certificate of fire code compliance in order to obtain a certificate of inspection. N.J.S.A. 55:13A-13(b). The owners could not obtain a certificate of fire code compliance because of the failure to install automatic fire suppression systems.
The record does not reflect the reason for the more than three-year delay between the August 2009 partial initial decision and the November 2012 initial decision.
Judge Stein noted that N.J.S.A. 52:27D-210(f) of the Uniform Fire Code and N.J.A.C. 5:70-2.2(e), provide that a subsequent purchaser of property who does not obtain a certificate stating that there are no unabated fire code violations, shall be deemed to be on notice of violations of record, and liable for payment of unpaid fees or penalties. Judge Stein recognized that no comparable express provision is found in the HMDL. Nonetheless, he reasoned that consistent with the provisions of the Uniform Fire Code, succeeding owners are responsible for correcting unabated violations and for unpaid fees and/or penalties under the HMDL arising out of an underlying violation of the Uniform Fire Code. The judge stated:
N.J.S.A. 52:27D-210(f) states:
A person who purchases a property without having obtained a certificate stating that there are no unabated violations of record and no unpaid fees or penalties shall be deemed to have notice of all violations of record and shall be liable for the payment of all unpaid fees or penalties.
Under N.J.A.C. 5:10-1.12(e), an owner cannot obtain a certificate of inspection until the Bureau receives or sees posted a certificate of compliance with the Uniform Fire Code. All buildings and all parts thereof shall be maintained as required by N.J.A.C. 5:10 and by the Uniform Fire Code, N.J.A.C. 5:70, and all buildings in compliance with the Uniform Fire Code "shall be deemed in compliance with the [HMDL] insofar as fire safety issues are concerned." N.J.A.C. 5:10-1.6(a) and (e). Under the Uniform Fire Code, like the [HMDL] and its regulations, the owner shall be responsible for the safe and proper maintenance of the premises at all times. N.J.A.C. 5:70-2.2; N.J.A.C. 5:10-1.6.
However, the Code, unlike the [HMDL] and regulations, specifically states that subsequent owners or those succeeding to control over the premises shall be responsible for correcting unabated violations and for the payment of outstanding fees and/or penalties whether or not they have requested a certificate of fire code status. N.J.A.C. 5:70-2.2(e). Importantly, under the Uniform Fire Safety Act, a person who purchases a property without having obtained a certificate stating that there are no unabated violations of record and no unpaid fees or penalties shall be deemed to have notice of all violations of record and shall be liable for the payment of all unpaid fees or penalties. N.J.S.A. 52:27D-210(f).
If, under the regulations, an owner cannot obtain a certificate of inspection unless the enforcing agency issues a certificate of fire code compliance, and a building that is in compliance with the Uniform Fire Code is deemed in compliance with the [HMDL], then it follows that a subsequent owner can only comply with the [HMDL] if he corrects violations left by the previous owner under the Code. In other words, an owner could not obtain a certificate of inspection under the [HMDL] unless he receives a certificate of fire code compliance, and he could not possibly receive a certificate of fire code compliance unless he corrects unabated violations, whether created by him or the previous owner. Therefore, under the [HMDL] and regulations, a subsequent owner is responsible for correcting unabated violations and unpaid fees and/or penalties related to fire safety concerns.
Because the subsequent owner either has actual knowledge of fire code violations through receipt of a certificate of fire code status or implied knowledge if he fails
to obtain a certificate of fire code status upon purchasing the building, and because the subsequent owner is responsible for unabated violations and for the payment of all unpaid fees or penalties, the subsequent owner would not need actual notice of a failure to comply with the fire code under the [HMDL] and regulations to be held liable for unabated violations and payment of unpaid fees and penalties.
In a third and final decision of January 24, 2013, Judge Stein reduced the penalties imposed to $250 for 319 and 411 Twelfth Avenue, because the properties were no longer used to house MKT students. The $500 penalty for the violation at 1402 C Street was approved.
On appeal, BPHC argues that the houses are not subject to the Act, and BPHC was deprived of proper notice of the alleged violations.
II.
A.
The standard for granting a motion for summary decision under N.J.A.C. 1:1-12.5(b) is "substantially the same" as that governing a motion for summary judgment under Rule 4:46-2. Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 121 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996). Consequently, the Commissioner must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party . . . are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). No genuine issue of material fact exists if there is "'a single, unavoidable resolution of the alleged disputed issue of fact[.]'" Contini, supra, 286 N.J. Super. at 122 (quoting Brill, supra, 142 N.J. at 540).
Although the applicable test for granting the two motions is essentially the same, our review of an agency's summary decision differs from our review of a trial court's grant of summary judgment. We review an order granting summary judgment de novo, using the same legal standard employed by the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Likewise, we owe no deference to the trial court's legal interpretations. See ibid.
While we likewise review de novo the Commissioner's determination that no genuine issue of material fact existed, we "strive to give substantial deference to the interpretation [the] agency gives to a statute that the agency is charged with enforcing." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 423 (2008) (internal quotation marks and citation omitted). We defer to an agency's interpretation of its own regulations unless plainly unreasonable. In re Election Law Enforcement Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 260 (2010). We defer as well to "an agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). We will affirm an agency's final quasi-judicial decision unless it is "arbitrary, capricious, or unreasonable." Russo v. Bd. of Trustees, Police and Firemen's Ret. Sys., 206 N.J. 14, 27 (2011) (internal quotation marks and citation omitted). Nonetheless, we are "in no way bound by the agency's interpretation of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
B.
Repeating points presented to the ALJ, BPHC asserts that it is not subject to the Act's requirement to install automatic fire suppression systems. BPHC's arguments that the houses were not used as dormitories; MKT is not a "school"; and the dormitories are not "at" the school, lack sufficient merit to warrant extended discussion in a written opinion. See R. 2:11-3(e)(1)(E). As to those arguments, we affirm substantially for the reasons set forth in Judge Stein's opinions. We add that MKT provides a full-time education to students between the ages of thirteen and twenty-two. It need not conform strictly to the format of a public secondary school, N.J.A.C. 6A:32-2.1, in order to qualify as a "secondary school" under the Act. N.J.S.A. 52:2 7D-198.9(a)(4). Nor must a dormitory be located on a school's property or campus to be considered "at" the school. The Act expressly contemplates the inclusion of residences off-campus, including but not limited to fraternities and sororities. See N.J.S.A. 52:27D-198.9(a)(1).
BPHC also argues that even if the three buildings are deemed dormitories, BPHC is exempt from the Act because MKT neither owned nor recognized the dwellings. BPHC relies on the definition of "dormitories":
"Dormitories" means buildings, or portions thereof, containing rooms which are provided as residences or for overnight sleeping for individuals or groups, and includes those residences utilized by fraternities or sororities which are recognized by or owned by a school or institution of higher education, but does not include those residences or multiple dwellings which are not recognized by or owned by a school or institution of higher education.The statutory definition is largely incorporated in regulations. N.J.A.C. 5:70-1.5.
[N. J.S.A. 52:27D-198.9(a)(1).]
It is undisputed that MKT and Rabbi Heinemann transferred ownership to BPHC in December 2007. BPHC argues that "recognition" of student residences is limited to an educational institution's recognition of fraternities or sororities. BPHC cites a treatise on higher education law, William A. Kaplan and Barbara Lee, The Law of Higher Education, § 10.2.2 (4th ed. 2006) (noting that a college or university's recognition of a fraternal organization is often a pre-condition to a local chapter's affiliation with a national fraternity). BPHC argues that MKT's post-sale actions — such as listing the three houses in a memo — does not constitute recognition; if it did, then virtually any off-campus housing provided by independent owners would be subjected to the Act if an educational institution included it on a list.
We are unpersuaded that the recognition of residences, not directly owned by an otherwise covered institution, is limited to housing owned by fraternal organizations. The plain language of the statute does not so restrict recognition, nor would such a narrow reading comport with the statutory mandate to liberally construe the Act to achieve the goal of fire safety. See N.J.S.A. 52:27D-193. Schools, colleges, or universities may opt for a variety of arrangements with other entities or groups, other than fraternal organizations, to provide student housing in buildings it does not own.
We need not chart the boundaries of what constitutes recognition for the purposes of our decision. Nor do we agree that if BPHC falls within the reach of the Act, then virtually any off-campus rooming house would be included as well. Applying a fact-sensitive analysis to the case before us, we conclude that BPHC's three buildings were recognized as residences for MKT students even after the title transfer.
First, the evidence is one-sided that the transaction between MKT and BPHC was not arm's length. We view as absurd BPHC's argument in its brief it just "happened to lease space to attendees" at MKT. The inference is inescapable that BPHC was formed with the intention of shifting ownership of MKT to avoid liability under the Act and the HMDL, in the wake of the November 2007 orders.
According to the sworn filings of Judith Heinemann and Rabbi Heinemann, the transfer of title was accomplished with nominal consideration of $1.00. We discount the declarations of Rabbi Heinemann and Rothschild that the consideration was $1.1 million. A party "cannot create an issue of fact simply by raising arguments contradicting his own prior statements and representations." Mosior v. Ins. Co. of N. Am., 193 N.J. Super. 190, 195 (App. Div. 1984). We must view the contradictory declarations in light of the record evidence, and according to the standards governing summary judgment. Shelcusky v. Garjulio, 172 N.J. 185, 201-02 (2002). While there is some lack of clarity as to the consideration set forth in the deed and filings — it was either $1.00 or $1.00 plus the assumption of the mortgage balance — the Heinemann and Rothschild declarations do nothing to explain the contradiction; rather, they "patently and sharply" contradict the deed and earlier filings. Cf. ibid. (stating a court should not reject an alleged sham affidavit if it "reasonably clarifies the affiant's earlier statement" or it does not "patently and sharply" contradict prior statements).
When inspectors arrived at the houses in January 2008, more than a month after BPHC acquired title, it was Rabbi Heinemann's son who arrived at the premises and allowed entry. Rabbi Heinemann continued to reside at one of the houses on various weekends. The houses continued to post phone numbers for the school, and signs stating that smoking was illegal in dormitories. BPHC's claim that its properties were indistinguishable from the several others listed on the MKT memo is belied by the facts. There is no evidence that MKT withdrew its publication that it maintained a dormitory for out-of-town students. Notwithstanding the title transfer, the MKT students' place of residence apparently remained the same.
We recognize the Division's alternative argument that the houses should be deemed "similar accommodations." The Act covers "buildings used as dormitories . . . or similar accommodations," N.J.S.A. 52:27D-198.9(a), but the Act only defines "dormitories," and the exclusion of properties not owned or recognized is found only in the definition of dormitories. N.J.S.A. 52:27D-198.9(a)(1). Based on our analysis that MKT recognized the BPHC properties, we need not reach the Division's argument, or address the extent to which "similar accommodations" may be covered by the Act, even if not owned or recognized by the school or higher education institution.
Finally, we reject BPHC's argument that it lacked sufficient notice of the violations. We affirm for the reasons set forth in Judge Stein's November 20, 2012 opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.A.C. 5:70-2.2(e) states that a "[s]ubsequent owner . . . shall be responsible for correcting unabated violations and for the payment of outstanding fee and/or penalties whether or not they have requested a certificate of fire code status."