In Re 925 Broadway, Bayonne

OAL Docket No. CAF 3464-98 (Department of Community Affairs 1998)
  • Opinion Date: December 15, 1998

MULTIPLE DWELLINGS—The nature of a building’s physical structure is critical in determining whether it is a multiple dwelling subject to the Hotel and Multiple Dwelling Law.

A property owner used the first floor of its building as a professional office. The second floor contained two apartments. Four garages served the building, separated by a breeze way. When the garages were destroyed by fire, a new two story structure was built. It had garages on the first floor and two apartments on the second floor. The first floor of the new structure abutted the original building. The second floor of the new structure did not touch the new building but was separated by what had originally been the width of the breeze way. The first floor of the two buildings was separated by a concrete block firewall. The two structures did not share a common roof, nor did they share common entrances and they did not share any support walls. Although the structures were on the same tax lot, the taxing authority required that each of the buildings have a separate address. The owner asserted that the premises did not constitute a multiple dwelling and therefore were not subject to the requirements of the Hotel and Multiple Dwelling Law while the Bureau of Housing Inspection, Department of Community Affairs argued to the contrary. By statute, a “multiple dwelling” means “any building or structure of one or more stories and any land appurtenant thereto, and any portion thereof, in which three or more units of dwelling are occupied, or are intended to be occupied by three or more persons who live independently of each other.” The administrative law judge reviewed a number of cases where two or more buildings with separate street addresses were separated only by fire walls. In each of the cases reviewed, the judge found that the form of ownership was not critical in determining whether the structure in question constituted a building with three or more dwellings. The judge also found that factors such as tax lot, mortgage, or utilities were not indicative of whether premises constituted a multiple dwelling. Instead, the Court found that the nature of the physical structure is critical and it, alone, seems to indicate whether or not a structure is a multiple dwelling. According to the Administrative Code, a “building” means “a structure built, erected and framed of component structural parts ... which is enclosed within exterior walls on all sides.” Here, there were two rectangular structures adjacent only on the first floor. The structures did not share a common roof, nor did they share any entrances. Consequently, the judge opined that the physical composition of the structure in question was distinguishable from other structures in cases where other structures were found to be multiple dwellings. Particularly important was the fact that there were no shared support walls in the old and new structures. Rather, the structures were adjacent on the first floor only because the owner requested construction of oversize garages where the old garage structure had previously existed. As a result, the premises were not construed as a single building of three or more dwelling units and therefore did not constitute a multiple dwelling.