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Alliance for Disabled in Action, Inc. (ADA) v. Renaissance Enterprises, Inc.

185 N.J. 339, 886 A.2d 629 (2005)

BARRIER FREE SUBCODE; DISCRIMINATION; STATUTE OF LIMITATIONS—Where a developer get governmental approval for its plans to build residences based upon a prototype design and doesn’t need to submit new plans each time it builds, the statute of limitations to seek to enforce New Jersey’s Barrier Free Subcode doesn’t begin to run until the last certificate of occupancy is issued.

An organization established to “advance the rights and well being of persons with disabilities” sued a condominium developer, the association, and the municipality. The suit alleged that the individual homes built as part of the project were not in compliance with New Jersey’s Barrier Free Subcode. Specifically, the advocacy organization believed “that the doors to the bedrooms, bathrooms, and walk-in closets in the [particular] units were not sufficiently wide to accommodate wheelchair access, that cabinetry beneath the bathroom sink was not designed to be removable, that grab bars could not be installed alongside the toilets, and that the kitchen tops were not mounted at the proper fixed height or designed to be adjustable.” The developer had submitted prototype plans for approval. Based on those plans, it did not have to “resubmit new plans each time [this particular] unit was constructed.” Based on the approval, over a four year period, the developer received construction permits for the units it was constructing. It opened a model for inspection in 1993 and subsequently built 135 units until December 2000 when only one such unit remained unsold.

The lower court barred the action based on its understanding of the statute of limitations. It believed that the advocacy organization “knew or should have known of [the] alleged violations” in late 1992 “when the prototype plans were approved or, at the very latest [late 1993] when the first [model of this particular home] was open for inspection.” The Appellate Division thought otherwise. It reversed the lower court decision, finding “that the appropriate date to start the period of limitations [was] the date construction was completed on the [particular style] units, i.e., the date on which the certificate of occupancy [was] issued.” It thought that it was “not unfair to invoke the continuous violation theory and compute the limitations period from the issuance of the last certificate of occupancy.” Further, the Appellate Division “concluded that because the project was built on a continuous basis, with no significant interruption in construction activity and there was no evidence that [the advocacy organization] knew of the alleged subcode violations and purposely withheld filing suit until the completion of the project, the two-year limitations period applie[d] to this cause of action.”

The developer argued that regulations that deleted “references to fire separation walls” and included “broader language concerning entrances to dwelling units” indicated an intention on the part of the governing authority to allow the individual units to be subject to an exemption from the New Jersey Barrier Free Subcode. In all, 15 buildings were built with each building containing 21 of these particular units. The Appellate Division disagreed with the developer, finding that the change in the law did “not provide a basis in this case to artificially divide the twenty-one dwelling units” into smaller “residences” that would fit within the exemption.

On further appeal to the New Jersey Supreme Court, that Court upheld the Appellate Division’s decision, finding no need to issue a separate opinion. Instead, it affirmed the Appellate Division’s decision for the reasons stated therein.


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