Opinion
DOCKET NO. A-0499-13T3
01-06-2015
MNR CLAT, LLC, Plaintiff-Appellant, v. TOWNSHIP OF MONTCLAIR, Defendant-Respondent.
Greenberg Traurig, LLP, attorneys for appellant (Robert C. Epstein, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-301-10. Greenberg Traurig, LLP, attorneys for appellant (Robert C. Epstein, on the brief). Respondent has not filed a brief. PER CURIAM
MNR Clat, LLC (MNR) owns the Wellmont Theater in Montclair. After a recent renovation, the Township of Montclair (Montclair) issued a violation notice to MNR, stating that the new seating layout violated the minimum aisle width provision of the International Building Code (IBC), section 1025.9.1.
The Construction Board of Appeals (Board) upheld the violation, finding that the seating arrangement blocked access to the side aisles of the theater. MNR then filed a complaint in lieu of prerogative writs in the Law Division, which was dismissed. For the reasons that follow, we reverse.
I.
On the main level of the Wellmont Theater, there are three tiers of seating, known as the "reserved seating" layout (RSL). In the RSL, there are access lanes between each row of seats. There are also four aisles that run perpendicular to the rows. Two of the aisles run from the stage along the sides of the seats to the back of the theater. The other two aisles run from the stage through the middle of the seats to the back of the theater.
On August 6, 2009, Montclair issued a violation notice to MNR, stating that the RSL "has chairs blocking the egress aisle to the east and west stairs on the first and second tiers [in] violation of IBC NJ 1025.9.1." The chairs in question are on opposite ends of the building, in sections with no more than five rows of seats in each tier. MNR removed the seats to cure the alleged defect, but appealed to the Board on August 12, 2009, maintaining that the RSL complied with the requirements of IBC NJ 1025.9.1. The applicable provision of IBC NJ 1025.9.1 states, in part, that twenty-three inches of space is needed between an aisle stair handrail and seating in a section containing no more than five rows of seats.
At the hearing, MNR argued that the RSL had twenty-three inches of space between the aisle stair handrail and the seating, which complied with IBC NJ 1025.9.1. MNR's evidence that the theater design contained ample egress avenues and exits went unrebutted. The Board acknowledged that egress was not an issue and that the building contained a sufficient number of exits.
Montclair, however, claimed that the seating blocked access to the side aisles:
[T]he chairs block access to [those] two steps to a ramp to [a] number of exits. There are more than enough exits in the building for the occupancy load. The issue really is . . . those chairs that you see . . . block the aisles.
. . . .
[MNR] wouldn't be over the square footage with how many chairs they have in there. That's not the issue. It's when they put those chairs in there a certain way they block some of those exits.
During the hearing, the Board expressed concern that the seating arrangement would require some people to "loop all the way around" to access an exit, thus increasing travel distance. As one Board member explained, "[T]hose chairs are definitely in an aisle going to that [exit], if somebody was sitting in those chairs you only have [twelve] inches. There's no way you can get by there."
By resolution adopted on November 24, 2009, the Board upheld the violation issued by Montclair, finding that the seating blocked access to "the egress aisle to the east and west stairs on the first and second tiers in violation of International Building Code Section 1025.9.1."
After the Board's decision, MNR filed a complaint in the Law Division. The motion judge heard oral argument on MNR's motion for summary judgment on March 18, 2011. During oral argument, MNR contended that IBC NJ 1025.9.1 does not give Montclair discretion to deviate from the objective measurements present in the code. Thus, because MNR complied with all of the requirements under IBC NJ 1025.9.1, and because there was no dispute as to this fact, MNR argued that it was entitled to summary judgment.
Montclair argued that the building code permits discretion, because the overriding consideration is about safety. According to Montclair, a construction code official is entitled to interpret the code and use his or her experience and discretion in determining whether there is a safety issue.
After hearing the positions of the parties, the judge denied MNR's summary judgment motion, stating:
Apparently, Montclair was convinced there was a fire safety problem. It's almost inconceivable to me that people whose job is it to make sure that people don't get hurt because a building collapses or there's a fire, it's inconceivable to me that they can't make that decision within the balance of their professional judgment.
On September 3, 2013, the judge dismissed all claims with prejudice. MNR appeals, claiming that we should exercise de novo review of the motion judge's decision and reverse it as erroneous.
II.
MNR's first argument is that the controlling standard of review is de novo, because the only issue is the Board's interpretation of IBC NJ 1025.9.1. We agree.
We afford great deference to the specialized expertise of an agency charged with the administration of a regulatory system. In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008). However, if the issue is the agency's "reading of an ordinance and its application to an undisputed state of facts . . . we are guided by the traditional rule that the interpretation of legislative enactments is a judicial function, and not a matter of administrative expertise." Cherney v. Matawan Borough Zoning Bd. of Adjustment, 221 N.J. Super. 141, 144-45 (App. Div. 1987). We are not bound by the agency's interpretation of a statute, Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973), and owe no deference to the trial court's interpretation of law. Raspa v. Office of Sheriff of Gloucester, 191 N.J. 323, 334-35 (2007).
Here, the primary issue is whether the Uniform Construction Code (UCC), in adopting the IBC, intended to grant construction officials discretion to deviate from subcodes to impose additional safety requirements. This is a question of statutory interpretation. As such, we review the matter de novo.
Montclair argues that the building code, when viewed as a whole, permits a construction official to exercise his or her "professional judgment" in determining whether a safety violation exists. Montclair's position, however, is overbroad.
IBC NJ 1025.9.1 addresses minimum aisle width as follows:
1025.9.1 Minimum aisle width. The minimum clear width for aisles shall be as shown:
1. Forty-eight inches (1219 mm) for aisle stairs having seating on each side.
Exception: Thirty-six inches (914 mm) where the aisle serves less than [fifty] seats.
2. Thirty-six inches (914 mm) for aisle stairs having seating on only one side.
3. Twenty-three inches (584 mm) between an aisle stair handrail or guard and seating where the aisle is subdivided by a handrail.
4. Forty-two inches (1067 mm) for level or ramped aisles having seating on both sides.
Exceptions:
1. Thirty-six inches (914 mm) where the aisle serves less [than fifty] seats.
2. Thirty inches (762 mm) where the aisle does not serve more than [fourteen] seats.
5. Thirty-six inches (914 mm) for level or ramped aisles having seating on only one side.
Exceptions:
1. Thirty inches (762 mm) where the aisle does not serve more than [fourteen] seats.
2. Twenty-three inches (584 mm) between an aisle stair handrail and seating where an aisle does not serve more than five rows on one side.
New Jersey adopted the IBC as subcode within the UCC. N.J.A.C. 5:23-3.14. Under the UCC, a construction official is responsible for "administer[ing] and enforc[ing] the code." N.J.S.A. 52:27D-126. The UCC does include language permitting a construction official to exercise discretion in determining whether a safety issue exists, but the discretion applies to narrow situations:
The most recent, adopted version of the building code is from 2009. The parties cite to the 2006 version. In the 2009 version, the code provision at issue is located at section 1028.9.1. The language is identical in both versions.
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Any requirement essential for structural, fire or sanitary safety of a building or structure, or essential for the safety of the occupants thereof, and which is not specifically covered by the regulations, shall be determined by the construction official, and appropriate subcode official.
[N.J.A.C. 5:23-2.2(c).]
Construction officials may deviate from the requirements specified in a subcode if the premises are being used in a way that differs significantly from what was anticipated in the subcode. See In re Walsh Trucking Occupancy & Sprinkler Sys., 215 N.J. Super. 222, 227-28 (App. Div. 1987) (holding that construction official was permitted to exercise discretion because appellant's unusual building use was not covered by the subcode). N.J.A.C. 5:23-2.2(c) applies only to situations where the building use is "unusual or unique" such that it requires deviation from the standards set forth in a subcode. See Venuti v. Cape May Cnty. Constr. Bd. of Appeals, 231 N.J. Super. 546, 554 (App. Div. 1989) (citing Walsh, supra, 215 N.J. Super. at 228).
If there is a specific regulation applicable, and the construction official determines that additional safety precautions are warranted, he or she would not be permitted to use discretion to impose the additional requirements. Instead, the proper course of action would be to "adopt an appropriate amendment to [the subcode] rather than suggesting that N.J.A.C. 5:23-2.2(c) provides broad authorization for ad hoc local decision making." Ibid.
There is no dispute that MNR complied with the egress requirements listed in IBC NJ 1025.9.1. Despite this compliance, Montclair issued a violation notice and required MNR to comply with additional safety requirements. Montclair, however, failed to demonstrate how MNR's property differed significantly from what was anticipated in the subcode. Indeed, Montclair failed to show that the Wellmont Theater is "unusual or unique" such that deviation from the subcode is necessary.
Absent a contrary showing, compliance with the detailed measurements present in IBC NJ 1025.9.1 is sufficient for safety purposes. Thus, a construction official would not be permitted to exercise the broad discretion that Montclair argues is appropriate. If Montclair does believe that there is a safety issue, the proper course of action would be to adopt an amendment to the regulations, rather than argue for broad discretion.
The facts here are distinguishable from those in Walsh. There, the appellant's building contained a garment handling and conveyance rack system (rack system) used for commercial purposes. Walsh, supra, 215 N.J. Super. at 224. The building contained only ceiling sprinklers and lacked any in-rack sprinklers. Id. at 225. The construction official concluded that the sprinkler system was inadequate and required appellant to install an in-rack system. Ibid.
There was no dispute in Walsh that the appellant's rack system differed significantly from any of the categories of building uses found in the subcode. Id. at 227. As a result, the construction official was permitted to exercise discretion in deviating from the subcode standard. Id. at 228.
Unlike Walsh, the record here does not suggest that MNR's theater has a seating arrangement that differs significantly from what was anticipated in the subcode. Because there is no reason to conclude that the subcode's provisions would be inapplicable to MNR's theater, Montclair should not be permitted to deviate from the objective standards.
The facts here are more analogous to those in Venuti. There, the plaintiff owned a motel with sixteen "efficiency units," which contained kitchen facilities. Venuti, supra, 231 N.J. Super. at 549. The fire subcode official cited the plaintiff for not having portable fire extinguishers in each efficiency unit. Ibid.
The applicable provision in the subcode required all cooking operations and food preparation centers to have a sufficient number of portable fire extinguishers. Id. at 551. "Individual dwelling units," however, were not subject to the regulation. Ibid. We concluded that "efficiency units" were indistinguishable from "individual dwelling units," thus the rule was inapplicable to plaintiff's motel. Id. at 551-52. We also rejected defendant's argument that the UCC gave the subcode official discretionary power to impose additional safety regulations. Id. at 553-54. We explained that the defendant failed to establish that there was something "unique" or "unusual" about efficiency units that required deviation from the subcode. Id. at 554.
Similarly, Montclair failed to establish that MNR's theater is "unique" or "unusual" such that application of the IBC's objective requirements is not feasible. Therefore, Montclair's position, that a construction official has broad discretion under the UCC to impose additional safety requirements, finds no support under the case law. Because the narrow circumstances that would permit discretion are not present, it was error to dismiss MNR's complaint.
Reversed. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION