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N.J. Superior Court, Appellate Division A-1091-02T1; Appellate Division; opinion by Wefing, J.A.D.; partial dissent by Fuentes, J.A.D.; decided and approved for publication July 27, 2004. Before Judges Wefing, Collester and Fuentes. On appeal from the Law Division, Middlesex County, L-10853-98. [Sat below: Judge Epstein.] DDS No. 30-2-7474 I. Plaintiff Alliance for Disabled in Action Inc. (ADA) is a private, nonprofit membership organization. In its complaint in this matter, it describes itself as seeking “to advance the rights and well[-]being of persons with disabilities generally, including those who require that buildings be accessible to persons with physical disabilities.” Defendants Renaissance Enterprises Inc. and Renaissance Terrace, Inc. are the developer of a large residential condominium project in North Brunswick known as Renaissance Village. Defendant Renaissance Village I, a Condominium, is the condominium association that owns and controls the project’s common elements. Defendant Renaissance at North Brunswick Master Association owns and controls the pool, recreation building and associated recreational facilities in the village. Defendant Salkin Group Inc. was the architect for this project. It has never been served and has not participated in this litigation. The remaining defendant is North Brunswick’s construction official. The project is a large one. There are 15 separate buildings in the village, each of which contains 22 units. The majority of these units are multilevel units and the buildings within the village are not serviced by elevators. In addition to these multilevel units, however, there are 135 ground-floor units without basements. Each of these units, referred to as “Sussex” units, has its own separate ground-level entrance. In this litigation, plaintiff contended that these Sussex units, as well as portions of the village’s common elements and recreational facilities, did not comply with New Jersey’s Barrier Free Subcode, N.J.A.C. 5:23-7.1 to -7.31. The trial court ruled by way of a series of summary judgment motions that plaintiff’s claims were barred by the statute of limitations, that the project was exempt from the standards of the subcode, and that the construction code official was entitled to summary judgment in any event. Held: The trial court erred in holding that plaintiff’s claims are barred by the statute of limitations and in holding that the project was exempt from the requirements of the subcode and those rulings are reversed. The trial court, however, properly granted summary judgment to the construction code official and that determination is affirmed. Plaintiff alleged that the doors to the bedrooms, bathrooms and walk-in closets in the Sussex units were not sufficiently wide to accommodate wheelchair access, that cabinetry beneath the bathroom sink was not designed to be removable, that grab bars could not be installed alongside the toilets and that the kitchen tops were not mounted at the proper fixed height or designed to be adjustable. Plaintiff alleged that Renaissance’s involvement in the design and construction of these units and the actions of the construction official in issuing the construction permits were acts of discrimination under the Law Against Discrimination (LAD). N.J.S.A. 10:5-12.4 declares that a “failure to design and construct any multi-family dwelling of four or more units in accordance with barrier free standards . . . [is] unlawful discrimination.” Plaintiff subsequently amended its complaint to allege related violations in connection with the design and construction of certain of the common elements and the swimming pool and recreation building. Plaintiff voluntarily dismissed its claims against the association and master association. The trial court entered final judgment in October 2002, in which it awarded plaintiff a counsel fee of $26,342.39. II. The trial court made no explicit determination whether plaintiff’s claims are subject to a six-year period of limitations or a two-year period of limitations because it was satisfied that plaintiff’s claims were untimely no matter which period was used. A. Defendant Renaissance, however, received approval on October 9, 1992, for the prototype plans for the Sussex units. Because these were prototype plans, Renaissance did not have to resubmit new plans each time a Sussex unit was constructed. Based on that approval, Renaissance received construction permits for these Sussex units over a four-year period, from January 1993 through January 1997. A model Sussex unit was open for inspection in 1993 and sales commenced that same year. As of December 2000, only one Sussex unit remained unsold. According to the trial court, plaintiff’s LAD-based claims accrued, and the period of limitations began to run, when plaintiff knew or should have known about the alleged violations of the standards for handicapped accessibility in the village. The trial court, relying on the fact that plaintiff is an advocacy organization for the rights of the handicapped, concluded that it knew or should have known of these alleged violations on October 19, 1992, when the construction code official approved the prototype plans and no later than September or October 1993 when the model Sussex unit was open for inspection by the public. The trial court erred in this regard. The trial court cited no authority at all for the proposition that plaintiff should be charged with notice of this project. Nor is there any basis in either policy or logic to adopt such an approach. Plaintiff is a private organization that advocates on behalf of the rights of the disabled. It has no responsibility to monitor design and construction activities in the hundreds of municipalities throughout New Jersey. Further, the selection of the date of approval of the prototype plans or the date the model unit was open for inspection conflicts with the language of N.J.S.A. 10:5-12.4, which declares it to be unlawful discrimination “to design and construct” a nonexempt building that does not comply with the subcode. Approval of the prototype plans should not mark the start of the period of limitations for nothing had yet been constructed at that point and it is the actual construction that triggers liability under the statute. Similarly, the opening of the model unit would not start the period of limitations for those Sussex units not yet built. The appropriate date to start the period of limitations is the date construction was completed on these units, that is, the date on which a certificate of occupancy was issued. The record does not indicate when certificates of occupancy were issued for each of the Sussex units but it does indicate that certificates of occupancy were issued for at least some of the Sussex units within two years of the filing of plaintiff’s complaint. B. The more difficult question is whether defendants were entitled to summary judgment for those Sussex units for which certificates of occupancy were issued more than two years prior to the filing of this complaint or whether the continuation of construction activity deprives defendants of the protection of the limitations period. “For causes of action arising under anti-discrimination laws . . . a judicially created doctrine known as the continuing violation theory has developed as an equitable exception to the statute of limitations.” Bolinger v. Bell Atl., 330 N.J. Super. 300, 306 (App. Div.), certif. denied, 165 N.J. 491 (2000). Bolinger set forth the elements of the continuing-violation doctrine: (1) at least one allegedly discriminatory act occurred within the filing period and (2) the discrimination is “more than the occurrence of isolated or sporadic acts of intentional discrimination” and is instead a continuing pattern of discrimination. On satisfying these criteria, a plaintiff may recover for damages incurred as a result of the entire continuing violation. In evaluating whether alleged incidents of discrimination constitute a continuing violation, a court should consider three factors: (i) subject matter � whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence � whether the nature of the violations should trigger an employee’s awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate. Id. at 307 (citations omitted). The underpinnings of the continuing-violation theory in LAD-based claims were recently explained: An actionable claim under LAD based upon a hostile work environment frequently arises out of repeated incidents that take place over time and by their cumulative effect make it unreasonable and unhealthy for the plaintiff to remain in that work environment. Caggiano v. Fontoura, 354 N.J. Super. 111, 126 (App. Div. 2002). While there is no reported New Jersey opinion that has considered the continuing-violation theory in the context of alleged discrimination in terms of accessibility for the handicapped, there is no reason in logic or policy why the continuing-violation doctrine could not be applicable to a case involving such claimed discrimination. Several courts in other jurisdictions have employed the doctrine when analyzing a limitations defense. They have done so, however, using different approaches and with different results. Plaintiff points to four federal courts that have analyzed the matter. Moseke v. Miller and Smith, Inc., 202 F.Supp.2d 492 (E.D. Va. 2002); Eastern Paralyzed Veterans Ass’n, Inc. v. Lazarus-Burman Assocs., 133 F.Supp.2d 203 (E.D.N.Y. 2001); Montana Fair Housing, Inc. v. American Capital Dev., Inc., 81 F.Supp.2d 1057 (D. Mont. 1999); Baltimore Neighborhoods v. Rommel Builders, 40 F.Supp.2d 700 (D. Md. 1999). In the two cases that had rejected the continuing-violation theory in the context of a failure to meet handicapped accessibility requirements, Moseke and United States v. Taigen & Sons, Inc., 303 F.Supp.2d 1129 (D. Idaho 2003), there was no discriminatory conduct, i.e., no construction, within the period of limitations. Here, however, such construction activity did take place within two years of the filing of the complaint. Thus, the Court is, in fact, dealing with a continuing violation, not a continuing effect of a “prior violation.” Although New Jersey’s LAD does not contain language comparable to that relied on by the courts in Montana, Fair Housing and Baltimore Neighborhoods, the approach of those courts, relying on a determinable event to start the period of limitations, is sounder than that adopted in Eastern Veterans, which treated the existence of a noncompliant unit as a continuing violation. The court concurs with the views expressed in Moseke and Taigen that there is a distinction between a continuing effect and a continuing violation and to treat them as synonymous is to disregard any period of limitations. Under the facts here, there is no unfairness in invoking the continuous-violation theory and computing the period of limitations from the issuance of the last certificate of occupancy. This project was built on a continuous basis, with no significant interruption in construction activity. The use of these prototype plans by defendant Renaissance was one of the factors that permitted this construction to proceed on that continuous basis. If Renaissance achieved a benefit by being able to complete this project in a relatively short time frame by using these prototype plans, it does not strike this court as unfair to make it assume a corresponding burden. In addition, there is no contention that plaintiff was aware of subcode violations and yet purposely withheld filing suit until near completion of the project. Use of such a tactic might well call for a different analysis. III. Plaintiff contends that it is entitled to a six-year statute of limitations because, in its view, certain of the operative facts occurred prior to the date of decision in Montells v. Haynes, 133 N.J. 282 (1993). The New Jersey LAD does not contain a specific period of limitations within which actions seeking relief under the statute must be commenced. Montells v. Haynes, 133 N.J. 282, 291-92 (1993), held that a two-year period of limitations should be applied to LAD-based litigation. It also ruled that its holding in that regard should be apply prospectively. Ali v. Rutgers, 166 N.J. 280 (2000), distinguished between the accrual of a cause of action and the occurrence of “operative facts.” It is the latter that is of significance in determining whether a LAD litigant is subject to a two-year limitations period or entitled to the benefit of the six-year period. The date the certificate of occupancy was issued is the triggering date for limitations purposes. For the same reasons, the certificate of occupancy should be deemed the “operative fact” for limitations purposes. If design without construction would not trigger liability under the statute, such design and planning should not be deemed an operative fact. Plaintiff has not established that certificates of occupancy were issued for any of these buildings prior to the Montell decision. At most, such certificates could only have been issued for two of the 15 buildings for only two building permits were issued prior to Montells. It would not advance any substantive interests in the context of this matter to hold that defendant Renaissance was subject to a six-year statute of limitations in connection with those two buildings and plaintiff subject to a two-year period of limitations for the remaining 13 buildings. The complex was developed essentially on a continuous basis. To apply a different limitations period to two buildings would not further any legitimate objectives. IV. The trial court erred in concluding that the manner in which Renaissance was constructed exempted it from the handicapped accessibility requirements. The court reached this conclusion based on the decision in D.I.A.L. v. Clifton Const. App. Bd., 218 N.J. Super. 74 (App. Div. 1987). In that case, relying on the then-existing N.J.A.C. 17:19A-1.2(a)(1), it was concluded that a condominium project under development was exempt from the subcode requirements. The trial court here concluded that the circumstance that the Sussex units were separated from other units by restricted access vertical walls resulted in these 15 buildings being divided into smaller, individual residences, and thus exempt from the subcode. The trial court did not take into account, however, that the regulations have been modified since D.I.A.L. The revised regulation N.J.A.C. 5:23-7.3(a)(1) omits any reference to vertical separation walls as a factor to consider in determining whether a structure is subject to the subcode or exempt from it. V. The trial court was correct when it granted summary judgment to North Brunswick’s construction code official. It is impossible to infer from the record here that the construction official willfully and knowingly approved these plans, intending to further the construction of housing that did not comply with the subcode. The construction official may have been less than diligent in the manner in which he fulfilled his job responsibilities. Lack of diligence, however, is not enough to transform him into an aider and abettor and subject to liability under the LAD. VI. Even under the principles articulated in Failla v. City of Passaic, 146 F.3d 149 (3d Cir. 1999), and Hurley v. Atlantic City Police Dep’t., 174 F.3d 95 (3d Cir 1999), the record presented here is simply insufficient to support a judgment of liability against the construction official for aiding and abetting Renaissance in discriminating against the handicapped. Although plaintiff makes general arguments concerning the construction official’s knowledge of the subcode and his involvement in the construction process through the approval of plans and the granting of building permits and certificates of occupancy and the partial dissent draws certain conclusions, the fact remains that plaintiff presented no proof that the construction official knowingly assisted or encouraged Renaissance in building structures that did not comply with the subcode. Failure to perform job responsibilities is not the equivalent of aiding and abetting, absent proof of knowledge or intent. Affirmed in part, reversed in part, and remanded to the trial court. Fuentes, J.A.D., concurring in part and dissenting in part, finds that the evidence presented here, when viewed in the light most favorable to plaintiff, provides a rational basis from which a trier of fact can conclude that the construction official aided and abetted defendant in violating the barrier-free design standards for residential buildings found in N.J.A.C. 5:23-7.1 to -7.31. By so doing, the construction official is liable to plaintiff under N.J.S.A. 10:5-12e and N.J.S.A. 10:5-12.4. He would adopt the aiding and abetting standards articulated by the Third U.S. Circuit Court of Appeals in Failla v. City of Passaic, 146 F.3d 149 (3d Cir. 1998), and Hurley v. Atlantic City Police Dep’t, 174 F.3d 95 (3d Cir. 1999), as contained in the Restatement (Second) of Torts, � 876(b) (1977). Under the Failla/ Hurley test, a party incurs liability if he or she knows that defendant’s conduct constitutes a violation of the LAD and gives substantial assistance or encouragement in bringing about a violation. Here, the construction official is charged, as a matter of law, with knowing the legal requirements of the subcode. Indeed, the office of the construction official is charged with enforcement of the Barrier Free Subcode. See N.J.A.C. 5:23-7.14. This massive residential complex was designed and constructed in total defiance of the architectural accessibility standards mandated by the Barrier Free Subcode. Such wholesale violation of the law could not have taken place without the construction official’s direct complicity, tacit approval or utter disregard for his legal responsibilities. No matter what the evidence ultimately establishes, a rational jury, applying the Failla/ Hurley test, can find that the construction official aided and abetted the developer in constructing a residential community where the state’s handicapped citizens need not apply. Those entrusted with the enforcement of the Barrier Free Subcode are expected to do so not just diligently, but scrupulously, with the knowledge that the devil is indeed in the details. Here, the construction official’s complete abdication of this responsibility warrants carefully scrutiny by a jury of his peers. � Digested by Steven P. Bann [The slip opinion, including the partial dissent, is 34 pages long.] For appellant � David J. Popiel (Community Health Law Project). For respondents: North Brunswick construction official � John F. Gillick (Lynch Martin); Renaissance Enterprises Inc. � Carol Matula (Haber & Silver; Sherry L. Silver on the brief).

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