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Department of Community Affairs v. Fox Hills at Rockaway Condominium Association, Inc.

A-3371-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

CONDOMINIUMS; VOTING — A challenge to the manner by which a vote of condominium unit owners has been taken can be dismissed if the challenge is made much too long after the vote and the actions approved by the vote have already taken place.

A condominium developer and the current leaders of a condominium association disputed the legal foundation for approving the construction of additional residential units. The association challenged the validity of a vote taken to approve an amendment to the Condominium’s Master Deed to allow the proposed construction. The association contended that there were irregularities in the voting process, and that the votes counted in favor of the plan amendment were insufficient. The association challenged the voting to the Department of Community Affairs (DCA), and before the Office of Administrative Law. There were six days of hearings on the dispute. The crucial issue was whether the vote on the amendment that would permit the construction was conducted by hand or ballot. The developer’s witness submitted into evidence a full sized sample ballot that contained the proposed amendment. The administrative court held that the amendment vote was conducted by ballot, and gave it legal validity. It found the association’s witnesses not credible in their contention that a hand ballot had been conducted. The DCA commissioner ratified the administrative court’s determinations.

The association appealed the DCA’s final agency decision, insofar as claiming that the votes cast, if done by ballot, were insufficient to carry the proposition. The Appellate Division barred relief based upon the untimeliness of the association’s challenge to the propriety and sufficiency of the vote, as the challenge had occurred three years later. The Court stated that one of the two project units authorized by the election had already been built by the time the vote was contested, and site work on the second building had already been performed. It also agreed with the administrative court that the developer’s registration filing was not deceptive, but instead was based upon a reasonable interpretation of the Master Deed.

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