CHESTNUT SQUARE APARTMENTS, LLC VS. CITY OFÂ VINELAND(L-0121-14, CUMBERLAND COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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
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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
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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.
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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
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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
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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
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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
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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."
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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
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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.
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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
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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
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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
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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
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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.
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