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Alliance for Disabled in Action, Inc. v. Continental Properties

371 N.J. Super. 398, 853 A.2d 328 (App. Div. 2004)

BARRIERS; LAW AGAINST DISCRIMINATION; ARCHITECTS—An architect may be liable under New Jersey’s Law Against Discrimination for failure to design a property to comply with New Jersey’s Barrier Free Subcode and it is not necessary to use another architect as an expert witness against the designing architect.

A nonprofit advocacy organization sued a developer and an architect alleging they constructed and designed a multi-family housing complex that did not comply with New Jersey’s Barrier Free Subcode. The organization hired a handicapped-accessibility expert to inspect the complex and he noted several architectural design deficiencies that violated the subcode. He also opined that the project violated the Law Against Discrimination (LAD). The LAD provides that failing to meet the barrier free standards for a multi-family dwelling of four or more units constituted unlawful discrimination. Construction began on the complex in February 1996 and ended in the spring of 1998. The advocacy organization filed its initial complaint on April 7, 1999.

Because of the two year statute of limitations, the lower court dismissed the complaints as to all buildings that had received certificates of occupancy before April 7, 1997. The lower court also granted the architect’s motion for summary judgment and concluded that the organization’s claim was essentially one for architectural malpractice and thus could not proceed without the opinion by a licensed architect.

On appeal, the Appellate Division noted that the complex had been constructed pursuant to prototype plans and, essentially, construction was an ongoing activity. Thus, the uniformity of the project’s design, which simplified the construction process, also simplified the process of retrofitting and repair. For that reason, the Appellate Division held that the continuing violation doctrine applied and reversed the lower court’s decision to bar certain claims because of the statute of limitations. The Appellate Division also disagreed with the lower court’s decision regarding the advocacy organization’s expert. The Court stated that not all experts must possess a professional license. The organization did not contend that the architect deviated from the standard of care governing architects charged with the responsibility for designing such a project. Rather, its claim was restricted to its allegation that the design of the project did not comply with the subcode. The expert had extensive experience with the subcode and was therefore qualified to determine whether the complex was in compliance. For that reason, the Court reversed the lower court’s decision which had barred the organization’s claims based on the statute of limitations, and which had rejected the organization’s expert because he was not a licensed architect.


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