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Department of Community Affairs, Bureau of Housing Inspection v. Dougherty

A-0643-07T1 (N.J. Super. App. Div. 2009) (Unpublished)

HISTORIC STRUCTURES — Even though a residential building may be of an historic nature, regulations intended to protect the health, safety or welfare of the building’s occupants are not to be waived even if those regulations require physical changes to the historic structure.

An historic single-family house was converted into a three-family dwelling. Consequently, the residence became subject to regulations enforced by the Department of Community Affairs’ Bureau of Housing and Inspection (DCA). The DCA inspected the house and issued a violation because the owner had not installed viewers at the individual entry doors of the apartments even though it had never issued a violation previous to that time for such an infraction. The owners sued the DCA, challenging its determination.

The Office of Administrative Law conducted a hearing on the matter. Initially, the Administrative Law Judge (ALJ) held that the house was exempt from the viewer requirement because of the building’s historic nature. This decision was remanded back to the ALJ because the decision relied on an incorrect section of the regulations. The ALJ then ruled that although the regulation called for the viewers to be installed, she would not enforce the requirement because the installation would negatively affect the value of the historic property and have no positive impact on the building occupants’ health and safety. She upheld part of the penalties previously imposed on the owners. The acting Commissioner of the DCA rejected the ALJ’s recommendations and held that the building was not exempt from the regulations because the device served to protect tenant’s security. The owners appealed.

The Appellate Division upheld DCA’s interpretation of the regulation, finding that DCA’s ruling was not arbitrary, capricious or unreasonable. The Court noted that the DCA relied upon the correct regulation and correctly interpreted the regulation when it reached its determination. Further, the Court agreed with the Acting DCA Commissioner that the owner was not entitled to an exemption from the viewer requirement because the statute stated that no exception would be granted if the absence of viewers could unreasonably jeopardize the health, safety or welfare of the building’s occupants. Thus, although the ALJ found that it would be a significant hardship for the owner to install the viewers, the Court held that it was within the Acting Commissioner’s discretion to determine whether the hardship overrode the obligation to protect the public’s health, safety or welfare. Finally, the Court held that the owner was unable to cite a statute or other law providing that the historical nature of a house “trumps” the regulation.


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