Township appeals lower court ruling that builder is not responsible for problems at Cherry Valley Country Club.
By: Jill Matthews
MONTGOMERY Lawyers for the township appeared before the state Supreme Court on Wednesday to argue an appeal of an Appellate Division ruling against the township on its lawsuit with DKM Residential Properties, the developer of the Cherry Valley Country Club community.
The case concerns the authority of a construction code official to issue a notice of violation to the builder of a home once a certificate of occupancy has been issued, said Trishka Waterbury, the attorney representing the township.
Ms. Waterbury said the township argued there is no indication the Legislature intended to restrict a construction code official from issuing a notice of violation to a builder, even if the builder no longer owns the property, if the builder was the owner of the property at the time the violation occurred and was responsible for committing the violations.
She said it is impossible for a construction code official to make sure everything is done correctly unless the official is on site during the entire construction process. Instead, the official relies in part on the builder’s certification to the township that all of the work had been properly completed.
Ms. Waterbury said it was unknown when the court would rule on the case and that it could be months before a decision is handed down.
Christine Petruzzell, an attorney from Wilentz, Goldman and Spitzer who represented the New Jersey Builders Association, which appeared as a friend of the court, could not be reached for comment Thursday. But in a brief submitted to the court, she wrote that it was not logical for a builder who no longer has legal or equitable interest in a property to be issued a notice of violation for that property. Instead, she wrote, the homeowner should be issued the notice.
The legal battle began more than two-and-a-half years ago when DKM sued the township, claiming it did not have the right to file notices of construction violations after certificates of occupancy had been issued.
The township notices claimed that a synthetic stucco product called Exterior Insulating and Finish System had not been applied to the houses in the Cherry Valley development according to the manufacturer’s instructions.
Over time, the township issued over 40 notices of violation on behalf of residents who complained of stucco problems.
The company brought a lawsuit against the township to the law division of the state Superior Court, which sided with the township in July 2001.
DKM appealed the decision to the Appellate Division, which overturned the law division’s decision and ruled that the township can only issue a notice of violation to a homeowner, not the developer, once a certificate of occupancy has been issued.