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Gamba v. Township of Brick

A-2313-01T3 (N.J. Super. App. Div. 2003) (Unpublished)

CONDEMNATION—Where there is doubt that a property owner got proper notice, and where there should have been no rush for a municipality to demolish a violation plagued structure, the municipality may not be entitled to recover its demolition costs.

A property owner sued a municipality for damages resulting from the municipality’s demolition of a house he owned. The municipality moved for summary judgment. It claimed that the owner received proper notice of an order that required him to either repair the house or it would be demolished. It also claimed that the owner received notice that he was in default of the order, thereby permitting the municipality to knock the house down. The lower court agreed and dismissed the complaint. The Appellate Division reversed, finding several material issues of fact in dispute. First, it was not clear if the municipality provided the owner with proper notice of the order requiring him to fix the house or face demolition. A statute requires the notice to be given personally or by certified mail. In the event the owner could not be served after reasonable efforts, the municipality could publish notice of the order in a newspaper and file a copy of the order with the county clerk’s office. Here, the municipality attempted to serve the owner by certified mail, and when it came back unclaimed, the municipality published the notice in the newspaper. Nonetheless, it failed to file the order. The Court also was disturbed by the fact that the municipality did not demonstrate that it made reasonable efforts to serve the owner personally before publishing the notice. It noted that the owner was a teacher in the area, owned the property for many years, and met with municipal officials several weeks earlier. It was not clear that the municipality, with diligent efforts, could not have served him personally. The Court also questioned whether the municipality satisfied the notice requirement because the affidavit submitted in support of publication was filed after the fact.

The Appellate Division was unclear whether the lack of recording of the order rendered the notice invalid. As to the order itself, the Court found that there was a substantial issue of material fact as to “when” the municipality was entitled to demolish the house. The municipality’s order required work to be completed in stages: removal of the weeds within two weeks, removal of debris within thirty days, replacement of the windows and doors within sixty days, and completion of the balance of the repairs within ninety days. The order also stated that if the owner failed to adhere to the schedule and the default continued for thirty days, the municipality could demolish the house at the owner’s expense. The municipality elected to demolish the property thirty days after the owner failed to complete the first stage by removing the weeds. The owner claimed that he had one hundred twenty days from the date of the order (thirty days after the expiration of the ninety day completion deadline) before it could be demolished. Further, the Court noted that, in a letter from the municipality to the owner, the municipality’s attorney spoke in terms of remediation and not in terms of demolition. This left the owner believing that the building would not be demolished. Lastly, the Court was disturbed by the municipality’s rush to demolish the house. The house had been dilapidated for ten years. It was a chronic problem, but there was no health or safety emergency requiring immediate demolition. Consequently, the owner could reasonably have believed that there was no rush for the municipality to tear down the house.

66 Park Street • Montclair, New Jersey 07042
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