The 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NOT FOR PUBLICATION WITHOUT THE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-0071-24
CITY OF LAMBERTVILLE,
Plaintiff-Respondent,
v.
MERRICK WILSON,
Defendant-Appellant.
MERRICK WILSON,
Plaintiff-Appellant,
v.
CITY OF LAMBERTVILLE
and KENNETH ROGERS,
Defendants-Respondents.
Submitted June 4, 2025 – Decided July 29, 2025
Before Judges Currier and Marczyk.
On appeal from the Superior Court of New Jersey,
Chancery and Law Divisions, Hunterdon County,
Docket Nos. C-014016-23 and L-0147-23.
Michael T. Hollister (Rothberg, Federman, & Hollister,
PC), attorney for appellant.
McManimon, Scotland & Baumann, LLC, attorneys for
respondents (William P. Opel and Joshua H. Raymond,
on the brief).
PER CURIAM
The controversy between the parties in these cases arose when the City of
Lambertville (City)1 fined Merrick Wilson for structural deficiencies regarding
his property. The parties filed dueling complaints in the Law and Chancery
Division which were consolidated. Thereafter, the Chancery Division judge
granted the City's motions for summary judgment and to dismiss Wilson's
complaint. We affirm.
I.
Wilson's property in the City has a single-family residence and two
outbuildings on it, referred to as a garage and chicken coop. In October 2018,
City officials inspected the property and deemed the outbuildings were unsafe
structures under N.J.S.A. 52:27D-132 and N.J.A.C. 5:23-2.32.
1
Defendant/respondent Kenneth Rogers was the Construction Official for the
City at the time of these events.
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2
At the time, Wilson had tenants living in the garage. There was no toilet
in the garage and Wilson had begun installing a bathroom on the enclosed porch
of the family residence. Wilson was ordered to vacate the garage, and a Stop
Construction Order was also issued.
On October 26 and November 1, 2018, the City issued Wilson Notices and
Order of Penalty for "allow[ing] occupancy [of the garage] prior to receiving a
Certificate of Occupancy [(CO)]," and for failing to obtain a construction permit
for the work being done on the main residence. He was fined $2,000 and an
additional $2,000 under each Notice for each week that the violations remained
outstanding.
Wilson filed an appeal with the Construction Board of Appeals (Board).
After two days of hearings, the Board issued a written decision in September
2019 in favor of the City, upholding the Notice of Unsafe Structure, and Notice
and Order of Penalty for the garage with the $2,000 fine. The Board also upheld
"[t]he Stop Construction Order and Notice of Penalty for the performance of
construction on the primary residence" reducing the fine from $4,000 to $2,000.
Wilson did not pay any of the assessed penalties or secure a CO. The City
again inspected the property in February 2023, and issued a Notice of Unsafe
Structure, after observing tenants in both outbuildings without a CO. Wilson
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3
was ordered to vacate the Property by February 9, 2023, and notified that failure
to comply with the order could result in penalties up to $2,000 per week. A
Notice and Order of Penalty was also issued for failing to obtain a construction
permit and allowing occupancy prior to receiving a CO. Wilson was fined
$2,000 for each violation for a total of $6,000 per week.
Wilson again appealed to the Board. At the ensuing hearing, Rogers
produced a lease between Wilson and a tenant for the garage, which specifically
referenced it did not have a toilet. In May 2023, the Board reaffirmed its earlier
decision and upheld the Notices of Unsafe Structure and Order of Penalty for
both outbuildings for performing work without construction permits, changing
the use of the building without acquiring approvals, and allowing occupancy as
dwelling units.
However, before the Board issued its decision, Wilson filed a complaint
in April 2023 against the City and Rogers in the Law Division, alleging the
Board did not issue a written decision. In September 2023, the City filed a
verified complaint and Order to Show Cause against Wilson in the Chancery
Division. The City sought (1) to declare the property unsafe and to permit the
demolition of the structure pursuant to N.J.S.A. 52:27D-131.1 and City Code
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Chapter 10-2.5; (2) $492,000 in accrued fines and penalties in addition to the
continuing accrual rate of $4,000 per week; and (3) attorney's fees and costs.
Wilson answered the complaint and served a certification opposing the
Order to Show Cause. Wilson stated that both outbuildings contain plumbing
but not toilets. He further certified that "the tenants of both [outbuildings are]
. . . explicitly advised . . . that toilet and shower facilities are accessible in the
principal structure and the rent charged reflected that condition." He also
certified that he "stopped construction of the exterior toilet on the principal
structure in October 2018, when the City issued the original Notice."
The City moved to dismiss the Law Division complaint, or in the
alternative, for consolidation of the cases. The Chancery Division judge denied
the order to show cause and consolidated the cases in the Chancery Division.
After discovery, the City moved for summary judgment on both
complaints. In a well-reasoned written opinion issued with an accompanying
order on August 2, 2024, the court granted the City's motions.
In considering the Law Division action, the court noted Wilson did not
oppose the dismissal of that complaint and the complaint did not set forth any
viable cause of action because it was filed before the Board even issued its
decision.
A-0071-24
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In addressing the Chancery Division action, the court considered the
applicable statutes and determined that after the outbuildings were deemed
unsafe, Wilson did not comply with the issued notices to remove and therefore
the City had the statutory authority to remove or demolish the structures. The
court noted the outstanding penalties totaled $588,000 but reduced them to
$172,000. Judgment was entered for the City in that amount and both
complaints were dismissed.
II.
On appeal, Wilson contends the court erred in calculating the penalty
amount, and its decision ordering the demolition of the outbuildings is not
supported by the applicable law.
We review the trial court's grant or denial of a motion for summary
judgment de novo, applying the same standard used by the trial court. Samolyk
v. Berthe, 251 N.J. 73, 78 (2022). We consider "whether the competent
evidential materials presented, when viewed in the light most favorable to the
non-moving party, are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).
A-0071-24
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Wilson contends "[t]he trial court's calculation of damages contravenes
public policy and N.J.S.A. 40:49-5," and that weekly penalties are not an
authorized sanction. The City responds that, as before the Chancery Division,
Wilson relies on the wrong statute. The City imposed the fines under N.J.A.C.
5:23-2.31(a).
In its decision, the court noted the parties' arguments and the City's
reliance on N.J.A.C. 5:23-2.31(a) that permits continuing penalties and stated:
[E]ven if the weekly penalties are permitted
under the Uniform Construction Code, the court finds
the penalty assessments to be unnecessarily punitive
and inequitable under the circumstances.
The chief aim of imposing penalties is to prevent
continued non-compliance. Here, the City sought to
prevent . . . Wilson from allowing the continued
occupation of the [o]utbuildings without necessary
approvals. . . . That goal was achieved through both the
[Board's] 2023 Decision and this court's grant of
preliminary restraints. . . . The [Board's] 2023 Decision
clearly states "[o]ccupancy in the structures at the
Property shall not be permitted until such time as the
Owner applies for and acquires [COs] from the City
. . . ." . . . . Likewise, the November 2, 2023 Order
clearly stated ". . . Wilson, shall not permit tenants or
any other persons to occupy the outbuildings on the
Property until a [CO] applied for and granted by the
City . . . ."
Despite achieving its goal in preventing
occupation of the [o]utbuildings, the City continued to
impose weekly penalties totaling $8,000 each week.
These noncompliance penalties were unwarranted in
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light of the relief achieved. The [Board's] 2023
Decision was executed on June 21, 2023. No penalties
for noncompliance should have been assessed
subsequent to the City receiving full relief. Therefore,
the court reduces the period of imposed penalties to
twenty weeks ([February 1, 2023–June 21, 2023]). The
total amount of penalties are accordingly reduced to
$172,000. The penalties reflect the initial fines of
$12,000, plus $8,000 fines assessed for twenty weeks.
($12,000 (initial fines) + (20 x $8,000)) = $172,000.
[(Fifth alteration in original).]
Wilson's reliance on N.J.S.A. 40:49-5 to void continuing penalties is
misplaced. The fines imposed on Wilson were issued pursuant to N.J.A.C. 5:23-
2.31, as stated in the notices and orders, not N.J.S.A. 40:49-5.
N.J.A.C. 5:23-2.31 provides:
(a) If the notice of violation and orders to terminate
have not been complied with, the construction official
in addition to any other available remedies likely to
bring about compliance, may request the legal counsel
of the municipality, or of the joint enforcement agency,
or the Attorney General in the case of the State, to
institute the appropriate proceeding at law or in equity
to restrain, correct, or abate such violation or to require
the removal or termination of the unlawful use of the
building or structure in violation of the provisions of
the regulations or of the order or direction made
pursuant thereto.
(b) Penalties:
1. Any person . . . shall be subject to a
penalty if that person:
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i. Violates any of the provisions of
the act or the regulations;
ii. Constructs a structure or building
in violation of a condition of a
building permit;
iii. Fails to comply with any order
issued by an enforcing agency or the
department;
....
3. With respect to (b)1iii above, a person
shall be guilty of a separate offense for
each day that he fails to comply with a stop
construction order validly issued by an
enforcing agency or the department and for
each week that he fails to comply with any
other order validly issued by an enforcing
agency or the department. With respect to
(b)1i . . . a person shall be guilty of a
separate offense for each violation of any
provision of the act or the regulations . . . .
With respect to (b)1ii above, a person shall
be guilty of a separate offense for each
violation of conditions of a construction
permit.
....
(e) Penalties may be levied by an enforcing agency as
follows:
1. Up to $1,000 per violation for failure or
refusal to comply with any lawful order,
unless the failure or refusal to comply is
done with the knowledge that it will
endanger the life or safety of any person, in
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which case the penalty shall be up to
$2,000 per violation;
2. Up to $2,000 per violation for failure to
obtain a required permit prior to
commencing construction or for allowing a
building to be occupied without a
certificate of occupancy;
3. Up to $2,000 per violation for failure to
comply with a stop construction order. . . .
Because the City imposed the penalties under N.J.A.C. 5:23-2.31, and the
regulation authorizes weekly penalties for non-compliance, the trial court did
not err in upholding the penalties, after a substantial adjustment of the amount
assessed.
Wilson also asserts "[the City] did not ask [for n]or present any evidence
that demolition of the principal structure 2 and either [outbuilding] was an
appropriate remedy. There are no removal orders. There are no demolition
orders."
In considering this argument, the court reasoned:
Through the Chancery Division Action, the City seeks
to enforce the State Uniform Construction Code Act,
N.J.S.A. 52:27D-119[ to -141] . . . (the "Act") and the
regulations promulgated thereunder.
2
The City did not seek the demolition of the principal structure.
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The City argues it is authorized, pursuant to [the
Act] and N.J.S.A. 40:48-2.5, to remove or demolish the
[o]utbuildings because . . . Wilson has failed to comply
with the Notices issued.
N.J.S.A. 52:27D-131.1 states, in relevant part:
a. If the owner of a building or structure
fails to comply with a removal or
demolition order issued by an enforcing
agency . . . the enforcing agency may cause
such building or structure to be removed or
demolished or may notify the governing
body of the need to contract for the
removal or demolition thereof . . . . Such
removal or demolition shall include the
clearance, and any necessary leveling, of
the site.
....
Similarly, N.J.S.A. 40:48-2.5(e) provides "if the
owner fails to comply with an order to remove or
demolish the building, the public officer may cause
such building to be removed or demolished or may
contract for the removal or demolition thereof . . . . See
21-23 Seidler Associates, L.L.C. v. City of Jersey City,
391 N.J. Super. 201, 208 (App. Div. 2007). . . .
Here, the Property was designated as unsafe in
both October 2018 and in February 2023. . . . The City's
Construction Officer issued multiple notices and
assessed multiple penalties for the unabated violations.
. . . The penalties assessed in 2018 have not been
satisfied. . . . Wilson has further failed to apply for
[COs] for either of the [o]utbuildings, or otherwise
comply with the Notices issued. . . . Additionally, . . .
Wilson has failed to challenge the City's right to
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demolish or remove the [o]utbuildings as requested
through the City's instant motion. No issue of fact or
asserted legal right prevents summary judgment in
favor of the City as to their right to remove or demolish
the [o]utbuildings.
[(emphasis omitted).]
Wilson received notice of the Chancery Division complaint in which the
City requested permission "to proceed with demolition of the structures on the
Property." As cited by the Chancery Division judge, N.J.S.A. 52:27D-131.1(a)
and N.J.S.A. 40:48-2.5(e) permit the City to request permission to demolish a
structure deemed unsafe, upon notice to the owner of the property.
In October 2018, Wilson was ordered to vacate the property by October
26. The Notice stated that the "[s]econdary buildings are not fit for habitation,
nor are they approved for habitation." On February 7, 2023, Wilson was again
ordered to vacate the property, specifically the outbuildings by February 9,
2023. The notice stated Wilson's occupancy of the outbuildings was in violation
of N.J.A.C. 5:23-2.23. He did not vacate the outbuildings, thus failing to comply
with the removal order. As a result, the City, in its September 8, 2023
Complaint, requested permission to demolish the structure pursuant to N.J.S.A.
52:27D-131.1.
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The trial court properly granted "summary judgment in favor of the City
as to their right to remove or demolish the [o]utbuildings" pursuant to the cited
statutes as a result of Wilson's noncompliance.
Affirmed.
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