CHESTNUT SQUARE APARTMENTS, LLC VS. CITY OF VINELAND(L-0121-14, CUMBERLAND COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 19, 2017
• Docket: A-1474-15T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1474-15T4

CHESTNUT SQUARE APARTMENTS, LLC, and DR. JAMIL AKHTAR,

Plaintiffs-Appellants/ Cross-Respondents,

v.

CITY OF VINELAND and CITY OF VINELAND FIRE PREVENTION BUREAU,

Defendant-Respondent/ Cross-Appellant,

and

CUMBERLAND COUNTY CONSTRUCTION BOARD OF APPEALS,

Defendant-Respondent.

_______________________________

Submitted June 1, 2017 – Decided September 19, 2017

Before Judges Carroll and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-121-14.

Stephen Altamuro, attorney for appellants Chestnut Square Apartments, LLC, and Dr. Jamil Akhtar. Buonadonna & Benson, PC, attorneys for respondents/cross appellants City of Vineland and City of Vineland Fire Prevention Bureau (Michael E. Benson and Alan G. Giebner, on the brief).

Edward F. Duffy, attorney for respondent Cumberland County Construction Board of Appeals.

PER CURIAM

Chestnut Square Apartments, LLC (Chestnut Square), and Dr.

Jamil Akhtar (collectively plaintiffs) appeal from the July 10,

2015 order of the Law Division affirming in part the decision of

the Cumberland County Construction Board of Appeals (Board). The

Board determined that Chestnut Square and Dr. Akhtar violated

Ordinance No. 2003-70 and Uniform Fire Code Section 503 by removing

the fire lane signage, and imposed a $5000 fine on each of them.

The trial court upheld the violation against Chestnut Square but

reduced the fine to $2500. As to Dr. Akhtar, the court vacated

and dismissed the violation and the fine. The Board also

determined that Chestnut Square and Dr. Akhtar violated N.J.S.A.

52:27D-210 by interfering with the duties of the Fire Bureau, and

imposed a $2500 fine on each of them. The court affirmed the

violation and the fine against Chestnut Square but vacated and

dismissed both as to Dr. Akhtar. The City of Vineland cross-

appeals the provisions of the July 10, 2015 order that relieved

Dr. Akhtar of all personal liability and reduced the fine imposed

2 A-1474-15T4 on Chestnut Square. We conclude that the arguments raised in both

the appeal and cross-appeal are without merit and, accordingly,

we affirm.

The express purpose of the Uniform Fire Safety Act (UFSA),

N.J.S.A. 52:27D-192 to -213, enacted in 1983, is to create a

"uniform, minimum, fire safety code" to "protect the lives and

property of the State's citizens[,]" ensure "uniform" and

"thorough . . . fire safety inspections[,]" and provide "swift and

commensurate" penalties for violations. N.J.S.A. 52:27D-195.

UFSA "is remedial legislation . . . and shall be liberally

construed to effectuate these purposes." N.J.S.A. 52:27D-193.

Pursuant to N.J.S.A. 52:27D-210a(1), "[n]o person shall . . .

[o]bstruct, hinder, delay or interfere by force or otherwise with

the . . . local enforcing agency in the exercise of any power or

the discharge of any function or duty under the provisions of

[UFSA.]" Under N.J.S.A. 52:27D-210b(1), "[a] person who violates

or causes to be violated a provision of [N.J.S.A. 52:27D-210a]

shall be liable to a penalty of not more than $5,000 for each

violation."

To implement UFSA, the Legislature specifically instructed

the Department of Community Affairs (DCA) to "promulgate . . .

regulations to [e]nsure the maintenance and operation of buildings

and equipment in such a manner as will provide a reasonable degree

3 A-1474-15T4 of safety from fire and explosion." N.J.S.A. 52:27D-198(a).

Pursuant to those legislative instructions, the DCA adopted the

model code of the International Code Council as the State Fire

Prevention Code for New Jersey (Uniform Fire Code), subject to the

modifications set forth in N.J.A.C. 5:70-3.2. See N.J.A.C. 5:70-

1.1 to -4.20. N.J.A.C. 5:70-1.3(a) provides that the Uniform Fire

Code is designed "for the safeguarding to a reasonable degree of

life and property from . . . conditions hazardous to life or

property in the use or occupancy of buildings or premises."

Section 503 of the Uniform Fire Code, governing fire apparatus

access roads, provides:

503.1. Where required. Fire apparatus access roads shall be provided and maintained in accordance with Section 503.1.1.

503.1.1. The fire official may require and designate public or private fire lanes as deemed necessary for the efficient and effective operation of fire apparatus, access to building openings by fire fighters or egress of occupants.

503.1.1.1. Proposed fire lanes shall not conflict with prior approvals issued by the planning and/or zoning boards unless the administrative authority for the planning and/or zoning board grants approval of the creation of the fire lane in writing.

503.2. Specifications. Fire apparatus access roads shall be installed and arranged in accordance with Section 503.2.1 through 503.2.7.

4 A-1474-15T4 503.2.2. Authority. The fire code official shall have the authority to require an increase in the minimum access widths where they are inadequate for fire or rescue operations.

503.3. Marking. Where required by the fire code official, approved signs or other approved notices shall be provided for the fire apparatus access roads to identify such roads or prohibit the obstruction thereof. Signs or notices shall be maintained in a clean and legible condition at all times and be replaced or repaired when necessary to provide adequate visibility.

503.4. Obstruction of fire apparatus access roads. Fire apparatus access roads shall not be obstructed in any manner, including the parking of vehicles. The minimum widths and clearances established in Section 503.2.1 shall be maintained at all times.

Similarly, N.J.S.A. 40A:14-53 provides that a "municipality, by

ordinance, may authorize the officials in charge of the paid or

part-paid fire department and force to establish fire areas to

regulate traffic and parking therein and provide penalties for

violations."

Pursuant to UFSA, Vineland Ordinance No. 2003-70 was adopted

on December 24, 2003, to update all existing fire lanes and ensure

compliance with the Uniform Fire Code. The ordinance amended

prior Ordinance No. 973, and includes comprehensive requirements

concerning fire lanes, such as curb markings and signage. The

Ordinance further delineates various locations in the City of

5 A-1474-15T4 Vineland where fire lanes were to be established or maintained as

follows:

§253-1. Prohibited parking. No person shall park or stop a motor vehicle in or in any other manner obstruct a properly designated fire lane, fire hydrant or fire department connection. This shall apply to any public street, private street or access lane.

§253-2. Enforcement. Violations of this chapter or any provision of the Uniform Fire Safety Act . . . or the New Jersey Uniform Fire Code . . . which pertains to this chapter shall be enforced by the Fire Prevention Bureau.

. . . .

§253-3. Fire lane locations. All fire lane locations shall be recorded in a file maintained by the Fire Prevention Bureau and shall be made available for public inspection. Copies of said file shall also be located in the City Clerk's Office, the Police Department, and the Fire Department.

§253-4. Curb markings. All curbs in a fire lane shall be painted exclusively with yellow traffic paint that meets the specifications for Type 1 Pure Drying Yellow Traffic Paint for road and bridge construction of the New Jersey Department of Transportation. . . .

§253-5. Posting and signs. Whenever a fire lane is established on any property, the property owner shall erect, replace, repair and maintain all fire lane signs and markings on said property as specified in this section and by the Fire Prevention Bureau. The property owner shall have fifteen (15) days to comply with this

6 A-1474-15T4 section upon proper notice by the Fire Prevention Bureau. . . .

§253-6. Violations and penalties. The Fire Prevention Bureau shall have the authority to issue any fine, penalty or enforcement action as provided for in the Uniform Fire Safety Act or the New Jersey Uniform Fire Code.

§253.7. Appeals. Any person may appeal a fine, penalty or enforcement action issued under this chapter by submitting a written hearing request to the City of Vineland Construction Board of Appeals. . . .

[Vineland, N.J., Ordinance No. 2003-70 (2003).]

Chestnut Square is a large apartment complex in the City of

Vineland constructed in 1968. It consists of 232 units

encompassing thirteen different buildings with wood-frame

construction and a common attic space across the top of each

building. Chestnut Square is one of the designated locations in

Vineland where fire lanes were to be established and maintained

under Ordinance No. 2003-70. In 2005, Chestnut Square and Dr.

Akhtar, the managing member of the LLC, were cited for violations

relating to the curbing and signage of its fire lanes. Among

other things, they were ordered to repaint the "[e]xisting [y]ellow

[c]urbing" and repaint the "No Parking Fire Lane" sign. The

7 A-1474-15T4 violations were abated and a certificate of compliance was issued

in 2006. In 2012, Chestnut Square and Dr. Akhtar were again cited

for violations relating to the color of the curbing of its fire

lanes. The violations were abated with the proper colored curbs

and certificates of compliance were issued in September 2013.

Subsequently, an inspection revealed that the "Fire Lane-No

Parking" signs had been removed and replaced with "No Parking-Tow

Away Zone" signs. As a result, Chestnut Square and Dr. Akhtar

were cited by the Fire Marshal and issued two violations, resulting

in the issuance of a September 25, 2013 Order to Pay Penalty and

Abate Violations as follows:

#1. Entire Complex: Fire lanes shall be installed in accordance with Vineland City Ordinance #2003-70, Uniform Fire Code, Section 503, Fire Apparatus Access Roads. Fine imposed: $5,000.00.

# 2. Removal of Fire Lanes Post Inspection: No person shall hinder or interfere with the duties of the local enforcement agency, N.J.S.A. 52:27d-210. Fine imposed: $5,000.00.

Plaintiffs appealed the issuance of the violations to the

Board. A testimonial hearing was conducted on January 7, 2014,

during which Dr. Akhtar and Fire Marshal, Michael Cifaloglio,

testified. Cifaloglio testified that after the 2012 violations

were abated, his officers began enforcing the parking

restrictions. However, Chestnut Square residents informed his

8 A-1474-15T4 office that Chestnut Square's head of maintenance, Cafael Torres,

had instructed them that "they did not have to pay their tickets

because it was not a fire lane, it was a tow away zone and the

signs say tow away zone." When Cifaloglio investigated on

September 25, 2013, he discovered "that the signs had, in fact,

been changed." Cifaloglio confronted Torres who informed him that

Dr. Akhtar had told him "they're not fire lanes. They're tow away

zones." Cifaloglio acknowledged that "[t]hings got a little

heated" until Dr. Akhtar intervened. However, Cifaloglio admitted

that he never heard Dr. Akhtar tell anyone not to pay their ticket.

Dr. Akhtar testified that he directed staff to replace the

fire lane signs with the tow-away zone signs, explaining that

"it's . . . absolutely counterproductive to make that a fire lane"

because it was "not a through lane." However, according to Dr.

Akhtar, he did not instruct staff to tell residents they did not

have to pay the tickets, and he denied being aware of the 2005 or

2012 violations and resulting abatements.

Regarding Ordinance No. 2003-70, Cifaloglio testified that

the ordinance was purposely vague to give him enforcement

flexibility and to avoid having to amend the ordinance every time

the Uniform Fire Code was revised. According to Cifaloglio, the

ordinance "doesn't need to be specific because Section 503 of the

Uniform Fire Code is quite specific."

9 A-1474-15T4 The Board sustained the violations but reduced the fine on

the hindering violation from $5000 to $2500. In rejecting

plaintiffs' challenges to the violations, the Board determined

that

(1) the language of the Uniform Fire Code, Section 503 is clear and unambiguous; (2) fire lanes were previously established at the subject apartment complex prior to November 11, 2005 and the owner, in fact, abated violations regarding same at said time[;] (3) the owner subsequently abated violations regarding the fire lanes in or about July 2013; (4) [t]he owner thereafter unilaterally modified the signage to "Tow Away" Zone; (6) the owner LLC, by and through its building manager, instructed tenants that the areas were not fire lanes but were "tow away" zones and they did not have to pay any violations.

To challenge the Board's decision, plaintiffs filed a

complaint in lieu of prerogative writs seeking to overturn the

violations and fines, alleging that the Board and the Fire Bureau's

actions were "arbitrary, capricious and unreasonable and in

violation of State and Federal Law." Specifically, plaintiffs

alleged that Ordinance No. 2003-70 was "vague and overbroad and

therefore unenforceable against [p]laintiffs[.]" Plaintiffs

alleged the Board sustained the violations without any "valid

proof" establishing "either violation[.]" Plaintiffs also alleged

that their "property, improvements, and building predate any

ordinance regarding fire lanes and therefore they are not subject

10 A-1474-15T4 to same." Further, plaintiffs contend that because "[n]o specific

proof was provided" indicating that "he individually hindered or

obstructed the Fire Marshal[][,]" Dr. Akhtar was "not individually

responsible for decisions made by the entity."1

In a July 10, 2015 written decision, Judge Richard J. Geiger

upheld the violations against Chestnut Square, determining the

Board's findings and conclusions were supported by "substantial

credible evidence in the record[,]" and were neither arbitrary,

capricious, nor unreasonable. However, the judge vacated and

dismissed the violations against Dr. Akhtar, finding insufficient

evidence of personal involvement or any wrongdoing on his part.

Further, Judge Geiger determined that as a member, rather than an

owner of the LLC, Dr. Akhtar was "not liable for the acts of the

LLC or its employees that he did not personally undertake or

direct."

Judge Geiger also reduced the fine against Chestnut Square

imposed for the ordinance violation to $2500. The judge found the

$5000 fine "to be unreasonable and excessive under the

circumstances[,]" given the fact that "plaintiffs did not remove

the fire lane signs for purposes of creating additional illegal

1 Plaintiffs' complaint consisted of three counts. However, with the agreement of the parties, counts two and three were subsequently dismissed.

11 A-1474-15T4 parking[,]" and "removing the fire lane signs did not result in

any actual harm." The judge acknowledged, however, that "this was

not the first time that Chestnut Square had been cited for fire

lane violations and that this was an intentional violation, not a

careless mistake." Nonetheless, Judge Geiger noted that the $5000

fine "was the maximum allowable under the law" and "five times

higher than the fine permitted for committing a disorderly persons

offense."

In rendering his decision, Judge Geiger rejected plaintiffs'

arguments after thoroughly canvassing the record, giving due

deference to the Board's credibility findings, and accurately

applying the legal principles governing the action in lieu of

prerogative writs. In analyzing plaintiffs' contention that

Ordinance No. 2003-70 was "void for vagueness" and failed "to put

property owners on notice of its requirements[,]" Judge Geiger

acknowledged that the prior ordinances included a schedule or

listing of the specific location and dimensions of the fire lanes

at each affected commercial property, while Ordinance No. 2003-70

does not. "Instead, it merely lists the mailing addresses of the

affected properties and provides: 'All fire lane locations shall

be recorded in the file maintained by the Fire Prevention

Bureau[.]'" Judge Geiger further noted that the ordinance, "does

not contain any specific reference to Section 503" of the Uniform

12 A-1474-15T4 Fire Code, nor "any details with regard to the width, length or

location of the fire lanes."

Nonetheless, Judge Geiger found that:

The record in this matter clearly demonstrates that since at least 2005, Chestnut Square and Dr. Akhtar had actual notice of the location, length and width of the fire lanes required at Chestnut Square. Indeed the curbs for the fire lanes were painted and signs posted at each required fire lane. Enforcement action occurred when the color of the curbs was changed by Chestnut Square from yellow to red. After being cited, Chestnut Square changed the color back to yellow. In addition, the fire lanes were at one point properly posted with Fire Lane-No Parking signs, which were subsequently changed by Chestnut Square to No Parking-Tow [Away] Zone signs, and have now been changed back. It is thus clear that both Chestnut Square and Dr. Akhtar have known the precise location and dimensions of the fire lanes since 2005. Accordingly,[] [t]hey had actual knowledge of the requirements. This is not a case in which they have been penalized for not complying with fire lane requirements that they did not know about. Nor is this a case in which the reasonableness of the size and dimensions of the fire lanes is under any legitimate substantive attack.

In rejecting plaintiffs' contention that the City Council

"impermissibly gave unbridled, complete and unlimited power to the

Fire Marshal[] to decide where and what fire lanes would be

established[,]" Judge Geiger explained:

While the City delegated the authority to determine and enforce the location and dimensions of the fire lanes at the designated

13 A-1474-15T4 commercial locations to the Fire Marshal[], the list of locations would naturally change over time as new commercial entities were created. More importantly, Section 503.1.1 of the Uniform Fire Code expressly authorizes fire officials to require and designate public or private fire lanes as deemed necessary for the efficient and effective operation of fire apparatus, access to building openings by fire fighters or egress of occupants. Determining the location and dimensions of fire lanes is a function that requires the particularized knowledge and expertise of fire officials, who have necessary ability to determine the specific areas that fire apparatus need unfettered access to for ingress, egress and positioning fire engines and ladder trucks during fires. This includes the size of the trucks and outriggers, locations of fire hydrants, building size and configuration in relation to curb lines and other pertinent information within their knowledge base.

In rejecting plaintiffs' contention that Chestnut Square was

not subject to the Uniform Fire Code because it was built before

the Uniform Fire Code was adopted, Judge Geiger considered

plaintiffs' reliance on "Bulletin 2010-4 issued by the Department

of Community Affairs," reiterating the language of N.J.A.C. 5:70-

3.1(d), which states:

This subchapter establishes fire prevention requirements governing the safe maintenance of all buildings and premises subject to the code. It is not the intent of the new Uniform Fire Code Subchapter 3 to require the installation or upgrading of any system, equipment or building component not already required by [N.J.A.C.] 5:70–4 or by the Uniform Construction Code in effect at the time of construction of the building or at the

14 A-1474-15T4 time of installation of any existing system, equipment or building components. This subchapter shall not be cited as the basis for any retrofit requirement.

Judge Geiger found plaintiffs' reliance on the Bulletin misplaced

because "imposing fire lanes does not involve 'the installation

or upgrading of any system, equipment or building component.' It

only involves creating, demarcating and signing no parking zones."

Likewise, Judge Geiger rejected plaintiffs' contention that

Chestnut Square "should be grandfathered in as to the later adopted

Uniform Fire Code requirements" because of its compliance with

"all applicable Uniform Construction Code [N.J.S.A. 52:27D-119 to

-141] and Planning Board requirements when it was built[.]" The

judge explained that "the Uniform Construction Code does not

regulate exterior fire lanes. In addition, the Uniform

Construction Code did not become effective in New Jersey until

1976, some eight years after Chestnut Square was constructed."

Similarly, Judge Geiger rejected plaintiffs' contention "that the

creation of the fire lanes is in conflict with the Site Plan

approved by the Planning Board." The judge noted:

There is no evidence in the record that the fire lanes eliminate any designated parking spaces approved or required by the Site Plan. The fire lanes did not change any curb lines, the width of any driveways, or location of any entrance or exit within the apartment complex. Therefore, imposing the fire lanes did not violate Section 503.1.1.1 of the Uniform Fire

15 A-1474-15T4 Code by conflicting with prior approvals issued by the planning or zoning boards.

This appeal and cross-appeal followed. On appeal, Chestnut

Square renews the arguments that were rejected by Judge Geiger.

The City of Vineland cross-appeals the reduction of the fine

imposed on Chestnut Square and the judge's finding that Dr. Akhtar

was not personally liable. We affirm substantially for the reasons

stated by Judge Geiger in his comprehensive and well-reasoned

written decision. We add only the following brief comments.

We review the Board's action using the same standard of review

as the trial court. Fallone Props., L.L.C. v. Bethlehem Twp.

Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). We must

determine whether the "board'[s] decision 'is supported by the

record and is not so arbitrary, capricious, or unreasonable as to

amount to an abuse of discretion.'" New Brunswick Cellular Tel.

Co. v. S. Plainfield Bd. of Adjustment, 160 N.J. 1, 14 (1999)

(quoting Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment,

152 N.J. 309, 327 (1998)). The Board's decision must be supported

by substantial evidence in the record, Ten Stary Dom P'ship v.

Mauro, 216 N.J. 16, 33 (2013), not by unsupported allegations or

conjecture, Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of

W. Windsor Twp., 172 N.J. 75, 88 (2002). Having reviewed the

record and the parties' arguments in light of the controlling

16 A-1474-15T4 legal principles, we find no basis to disturb Jude Geiger's

insightful analysis of the issues presented. R. 2:11-3(e)(1)(A).

Affirmed.

17 A-1474-15T4