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DKM Residential Properties Corporation v. Township of Montgomery9/15/2003
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 4, 2002
This appeal presents a question of first impression concerning the power of a municipal construction official to issue a notice of violation to a residential builder years after a certificate of occupancy was issued and title transferred to the new homeowner. Both plaintiff, DKM Residential Properties Corporation ("DKM"), and defendants, Township of Montgomery ("Montgomery") and the Montgomery Construction Board of Appeals ("the Board"), agree that the scope of the municipal officer's jurisdiction is solely a legal issue. Both parties agree that the Law Division judge did not decide that issue, except insofar as her decisions on cross-motions for summary judgment constituted a de facto decision in favor of jurisdiction. Both parties now seek a ruling by this court rather than a remand to the Law Division. We accede to that request and now reverse.
Because the issue of jurisdiction is determinative, and because the Board's findings of fact were not challenged on the merits in this appeal, we do not review those findings. Our decision today does not reflect any view of the merits of pending or future claims against DKM by any homeowner or group.
I.
This action arose when the municipal construction official issued a Notice of Violation and Order to Terminate ("NOV") to DKM, invoking his authority pursuant to the State Uniform Construction Code Act, N.J.S.A. 52:27D-119 to -141 ("the Act"), and the regulations promulgated thereunder by the Department of Community Affairs ("the DCA"), N.J.A.C. 5:23-1.1 to -12A.6 ("the regulations"). The regulations adopt the State Uniform Construction Code ("the UCC"), as mandated by N.J.S.A. 52:27D-123(section a). The Act empowers municipal construction officials"to administer and enforce the ." N.J.S.A. 52:27D-126(section a). Both parties also agree that compliance with the UCC is the main goal of the regulations.
The core of DKM's argument in the Law Division, and now before us, is that the municipal construction official lacks authority to issue an NOV to a builder/developer after its work on the property has been completed and a certificate of occupancy issued, and after the developer has transferred title to the property, because the developer no longer has control over the property and therefore has no power to correct the alleged violation. Rather, DKM contends that there is no legal basis for implying enforcement authority against the developer, and code compliance can be met by enforcement against the current property owner, as expressly authorized by the Act.
DKM further contends that if the Act and the regulations are construed to grant such authority to the construction official, those enactments violate both the United States and the New Jersey constitutions. In light of our conclusion that the municipal construction official does not have the authority to issue an NOV to DKM, we need not address the constitutional challenge. We also need not address DKM's additional arguments: that the official is equitably estopped from issuing the NOV to DKM based on having previously issued certificates of occupancy; that the municipality illegally delegated its governmental function to the homeowners or their privately retained engineer; that the Board's action constituted an interference with existing contracts; and that the Board violated a stay order issued by the Law Division.
II.
These are the circumstances in which the issue of the jurisdiction of the construction official arose. Several homeowners in the Cherry Valley Country Club ("Cherry Valley") residential develop
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