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Botton v. Construction Board of Appeals of the County of Cape May, City of Wildwood

A-4378-02T2 (N.J. Super. App. Div. 2004) (Unpublished)

VIOLATIONS; PENALTY ENFORCEMENT LAW—The bar to litigating the amount of a civil penalty which is triggered after a violator has had a previous hearing pursuant to the Administrative Procedures Act is not triggered by a hearing before a county board of construction appeals because such a board is not an administrative agency of the State.

An individual brought a prerogative writ action challenging an order of a local construction board of appeals. The order required him to obtain a “continuing certificate of occupancy” for property he owned. Based on that order, the municipality had ordered the owner’s tenants to close their businesses. In response to the writ action, the municipality filed a counterclaim demanding a money judgment because of the owner’s failure to correct two fire code violations. Its claim was supported by an affidavit from a local fire department captain. In opposition to the motion, the owner filed affidavits from a tenant and an employee of a tenant, attesting that the problems were in fact corrected, and that they had heard a fire official say that the problems had been corrected. After hearing arguments, the lower court held in favor of the municipality. The lower court held that the fire official clearly stated that violations still existed after inspection, and that the affidavits offered by the owner were inadmissible hearsay.
The owner filed a motion for reconsideration, arguing that the lower court had erred in concluding that the factual allegations in the affidavits were inadmissible hearsay. After reconsideration, the lower court agreed that the affidavits did not contain inadmissible hearsay and should have been considered, but still maintained its decision that summary judgment was warranted.

On appeal, the owner argued that the allegations in the affidavits were sufficient to create a material issue of fact requiring a denial of the municipality’s motion. Specifically, both witnesses had certified that they participated in repairing the areas that the fire department had found fire code violations, and that a fire official had approved the work done. The Appellate Division held that these affidavits did in fact create a material issue of fact as to whether the violations existed. If a trier of fact could credit these allegations, then the trier could discredit the findings of the fire official.

The Court also rejected the municipality’s argument that even if the affidavits showed the existence of a material issue of fact, the owner was precluded from litigating this under the Penalty Enforcement Law, N.J.S.A. 2A:58-10(a), which states: “[i]f an administrative agency of the State has assessed a fixed amount of money as a civil penalty or award after the person against whom the penalty or award was ordered was afforded an opportunity for a hearing pursuant to the ‘Administrative Procedure Act,’ ... at the request of the agency ... the Clerk of the Superior Court, Law Division, Special Civil Part shall record the final order assessing the penalty or award on the judgment docket of the court.”

The Court disagreed with the municipality, holding that this statute did not apply because the only administrative hearing regarding the fire code violations was conducted before the board, which is not “an administrative agency of the state,” and does not conduct hearings in conformity with the Administrative Procedure Act. As a result, the Court reversed the summary judgment.

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