Dept. of Community Affairs, Bureau of Housing Inspection v. 159 Chestnut Street, Jersey City

OAL Docket No. CAF 3738-98 (Department of Community Affairs 1998)
  • Opinion Date: November 19, 1999

MULTIPLE DWELLINGS—A building that physically could contain three dwelling units, but is not so used and would be illegal if it were, is not a three-dwelling unit building.

This matter involved whether or not a particular building was to be treated as a three-family dwelling or as a two-family dwelling. The Bureau of Housing Inspection viewed the building which consisted of a basement, a first floor and a second floor, as one with two apartments and one sleeping area. If that position were correct, the building would meet the definition of a three-dwelling unit property under the Administrative Code. In particular, a multiple dwelling is defined as “any building or structure and land pertinent hereto ... in which three or more dwelling units are occupied or intended to be occupied by three or more persons living independently of each other.” As such, a dwelling unit is a room or rooms, or suite or apartment, that is occupied or intended to be occupied for sleeping or dwelling purposes by one or more persons. The property was occupied by two families and was located within a zone limiting buildings to two dwelling units. The property owner obtained testimony that a three-family residential unit would violate the municipal zoning ordinance. The municipal tax assessor treated the building as two-family, as did the municipality’s housing code and the municipal water company. The Bureau of Housing Inspection said that there would be no question that the building would be a two-family property if an exterior staircase had been provided to the top floor and had a common hallway been sealed. In addition, the Bureau agreed that a kitchen would have to be installed in the middle floor of the building to make it a separate unit. However, if a kitchen had been installed, the property would become a three-family unit and would violate the municipality’s ordinance. Although the building had three electric meters, one meter controlled electricity in the common hallway. In addition, the building had only two gas meters. Lastly, the owner pointed out that neighboring properties were of similar construction and were considered two-family dwellings. Based upon documents entered into the record and the demeanor and credibility of the witnesses, the Administrative Law judge concluded that the property owner had shown by a preponderance of the evidence that its property was a two-family dwelling and not subject to the requirements of the Hotel and Multiple Dwelling Act.