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Alliance for Disabled In Action, Inc. v. Renaissance Enterprises, Inc.

2010 WL 2990846 (N.J. Super. App. Div. 2010) (Unpublished)

HANDICAPPED ACCESSIBILITY — When a court orders a developer to remediate newly built units so as to comply with the New Jersey’s Barrier Free Subcode, it cannot, without explanation, order the developer to hire outside contractors to perform the work.

A non-profit advocate for disabled persons became aware that a developer of a large residential condominium project had constructed residential buildings in violation of New Jersey’s Barrier Free Subcode. The advocate sued the developer, alleging violation of New Jersey’s Law Against Discrimination. It contended that the design and construction of 135 ground floor units, in 15 buildings, did not accommodate wheelchair use, and otherwise disadvantaged the handicapped.

At trial, the developer did not dispute that there were violations in the first 10 buildings and that the advocate was entitled to remedial relief. It disputed, however, the extent of work required and challenged some of the estimates proposed by the advocate. There were pre-litigation meetings between the parties attempting to address the non-conformities in the complex’s ten fully constructed buildings. The developer claimed that an agreement was reached with the advocate in which the developer would make 45 units, in the other five buildings then under construction, as accessible as possible. The lower court found the advocate proved its entitlement to have up to 135 units retrofit to bring them into compliance with the subcode. It ordered the developer to comply. Specifically, it directed that the developer hire contractors to perform interior work with an additional markup of 35% for overhead, profit, contingency, and insurance. It ordered the contractor to deposit those costs into a trust fund to be used for other purposes should any unit owner decline the retrofit work. The developer appealed.

The Appellate Division reviewed the lower court’s record, and concluded the developer had acted in good faith in complying with the construction plans, as the plans had been approved by the municipality’s construction official. Further, the developer had testified at trial that, at the outset, it informed the advocate that it had been unaware that compliance the subcode was required and that it would try to do what it could to retrofit units going forward to make them as adaptable as possible. The Court was mindful of the testimony that a deal had been reached between the parties in which the developer would do all it could to make units compliant. The Court upheld the lower court’s finding that there had been an agreement to put all units in the five additional buildings in substantial compliance. It excused the developer from having to comply with some recommended work suggested by the advocacy group at trial.

In short, the Court said the lower court articulated a detailed and reasonable explanation for its findings respecting the developer’s obligations to remediate units and the costs attributable to such work, based upon an oral understanding that the developer and the advocate had to make those units in the five buildings as accessible as possible, and that some of the advocates recommendations were not feasible.

The Court, however, reversed the lower court’s finding that the developer had to hire outside contractors to perform the interior work at a calculated 35% premium, holding that there was no explanation as to why the developer could not perform all of the renovations itself and why this division of labor was necessary. In fact, the developer acted in good faith in substantially complying with most of the advocate’s recommendations. The Court permitted the developer to perform all of the retrofitting, and directed that any money deposited by the developer in the trust fund be based upon the costs determined by the lower court, less the 35% premium.

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