MARGARETCHUDZIAK v. BERGEN COUNTY CONSTRUCTION BOARD OF APPEALS

NOT FOR PUBLICATION WITHOUT THE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-1260-16T4

MARGARET CHUDZIAK and
DARIUS MICHALSKI,

        Plaintiffs-Appellants,

v.

BERGEN COUNTY CONSTRUCTION
BOARD OF APPEALS and BOROUGH
OF UPPER SADDLE RIVER,

     Defendants-Respondents.
_______________________________

              Submitted January 17, 2018 – Decided February 1, 2018

              Before Judges Fuentes and Manahan.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-3240-13.

              Garth A. Molander, attorney for appellants.

              Robert T. Regan, attorney for               respondent
              Borough of Upper Saddle River.

PER CURIAM

        This case returns to us after a remand.            Plaintiffs Margaret

Chudziak and Darius Michalski appeal from an October 27, 2016
amended final judgment order awarding civil penalties to the

Borough of Upper Saddle River.         We affirm.

     In Chudziak v. Bergen Cnty. Const. Bd. of Appeals, A-2998-14

(App.   Div.   June   30,   2016),   we    affirmed     the   Bergen    County

Construction Board of Appeals' decision to dismiss their appeal

of a construction violation, and the entry of an award in civil

penalties to the Borough of Upper Saddle River for plaintiffs'

continuous     non-compliance   with      the   State   construction     code.

However, as we concluded, the judge failed to provide an adequate

statement of reasons for the damages awarded per Rule 1:7-4,

therefore, we were constrained to vacate the award and remand for

further fact finding.

     The procedural and factual histories were set forth in detail

in our prior opinion and need not be repeated herein.             Chudziak,

slip op. at 2-9.

     On appeal, plaintiffs, who did not attend or participate in

the remand proceedings, raise the following points:

           POINT I

           THE TRIAL COURT ABUSED ITS DISCRETION IN
           AWARDING CIVIL PENALTIES TO DEFENDANT BOROUGH
           BECAUSE THE REMAND DECISION IS NOT SUPPORTED
           BY SUBTANTIAL CREDIBLE EVIDENCE IN THE TRIAL
           RECORD.

                 a. There was no credible evidence
                 to the contrary, and there was no
                 evidence to refute the plaintiffs'

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     expert's testimony that an unsafe
     condition did not exist to warrant
     civil penalties with respect to
     violation 2008-0037 (no permit,
     unsafe   condition  and   imminent
     hazard).

     b.   The penalties awarded to the
     Borough   were   unreasonable  as
     applied to the specific facts
     involved.

     c.     The medical and personal
     circumstances    faced    by    the
     plaintiffs in 2008 were not given
     due consideration and were actually
     disregarded in assessing whether
     continuing   penalties  should   be
     awarded to the Borough.

     d. The Uniform Construction Code is
     not a fee shifting statute, and
     civil penalties cannot be awarded on
     such basis or rationale.

POINT II

THE TRIAL COURT DECISION TO REINSTATE CIVIL
PENALITES SHOULD BE REVESED BECAUSE THE REMAND
RECORD CANNOT ESTABLISH[] THAT THE REOCCURRING
PENALIES WERE RATIONALLY RELATED TO AN UNSAFE
STRUCTURAL CONDITION OR IMMINENT HAZARD.

     a.   The December 3, 2014 hearing
     testimony clearly supports a fact-
     specific determination that the
     civil penalties granted to the
     Borough were not fair and reasonable
     and    actually     irrational    or
     excessive.

     b.   The remand decision did not
     provide a factual and legal basis to
     award attorney fees and costs of
     litigation.

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     Having considered the record in light of the arguments, we

conclude that they lack sufficient merit to warrant discussion in

a written opinion.   R. 2:11-3(e)(1)(E).   We affirm for the reasons

set forth in Judge William C. Meehan's written opinion dated

October 13, 2016.

     Affirmed.




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