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366-68 S. 11th St. v. Department of Community Affairs

OAL Docket No. CAF 3629-96 (Department of Community Affairs 1998)

MULTIPLE DWELLINGS—Two adjacent, commonly owned, two-family homes constitute a multiple dwelling of four units despite separate tax, utility, and insurance bills and separate entrances.

This case arose out of a Notice of Violation and order to pay a penalty. The reason for the penalty was the failure of the property owner to contact a housing inspector to arrange an appointment to re-inspect its property. On a number of occasions, the building inspector attempted to inspect the premises, including visits where he was denied access to the property. The property owner was fined $500 for refusing to contact the house inspector. In this action, the property owner challenged the designation of its property as a multiple dwelling, claiming that it actually was two distinct properties. The owner testified he had been living at one property (a two-family home) since 1973 and had purchased the adjacent property (also a two-family home) later in the same year, using a different mortgage company. The owner also testified that there was a fire wall separating the two properties, and that each location had a separate insurance policy, and each had separate heat. He also produced documents showing the two properties as being separate tax lots.

Despite the property owner’s testimony and submissions, the Administrative Law Judge upheld the fine. He pointed out that questions regarding the classification of the dwelling should have been raised fifteen days after the receipt of the order of inspection. This is because the “Inspection Report and Orders of the Commissioner” given to the property owner lists fifteen days as the appropriate time to file an appeal. As a result, the property owner’s request to challenge the classification was untimely and dismissal was required on procedural grounds. The judge also found the dwelling to be one unit, primarily based on the fact that the buildings had common ownership and had a total of four apartments. In the judge’s view, other factors such as separate heat, separate entrances, separate tax bills, and separate utilities are irrelevant to the determination of whether or not separate dwellings exist.


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