SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1131-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENISE WILLIAMS,

Defendant-Appellant.

________________________

Argued May 11, 2021 – Decided June 1, 2021

Before Judges Mawla and Natali.

On appeal from the Superior Court of New Jersey, Law 

Division, Camden County, Municipal Appeal No. 19-

0002.

Michael Confusione argued the cause for appellant 

(Hegge & Confusione, LLC, attorneys; Michael 

Confusione, of counsel and on the briefs).

Brandon Hawkins, Deputy Cherry Hill Township 

Solicitor, argued the cause for respondent (Brandon 

Hawkins, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
2 A-1131-19

Defendant Denise Williams appeals from an October 25, 2019 order 

adjudicating her motion for reconsideration of an order finding her guilty of 

violating N.J.A.C. 5:23-2.16(f), a regulation of the Uniform Construction Code 

(the Code).

1

 We affirm.

I.

We take the facts from the record of the trial in the municipal court and 

the proceedings before the Law Division judge. In March 2009, defendant 

obtained a building permit to construct a home in Cherry Hill Township. The 

permit was supposed to expire in 2012, but was extended until December 31, 

2015, pursuant to the Permit Extension Act (PEA) N.J.S.A. 2A:58-10 to -12. 

Defendant did not renew the permit or seek an extension, and on April 25, 2017, 

the township issued a Notice of Violation and Order to Terminate for violation 

of N.J.A.C. 5:23-2.16(f)(1)(ii). The notice ordered defendant to "terminate the 

said violations on or before" May 24, 2017, or face an "assessment of penalties 

of up to $1,000[] per week per violation, and a certificate of occupancy will not 

be issued until such penalty has been paid." 

1 The statutory provisions of the Code are found at N.J.S.A. 52:27D-119 to -141, 

and the regulatory provisions for administration, enforcement, and process 

under the Code are found at N.J.A.C. 5:23-2.1 to -2.39.
3 A-1131-19

Township Code Enforcement Officer William Cattell testified the 

township served the notice on defendant via regular and certified mail at the 

addresses she provided, namely, a P.O. Box and the property where the structure

was being built. The notices sent by regular mail were not returned and the 

notice sent to the structure by certified mail was returned undeliverable. 

After reinspection of the structure on June 22, 2017, the township found 

defendant "failed to comply with [the] notice . . . in violation of [N.J.A.C.] 5:23-

2.31(e)[.]" It therefore assessed penalties of $2,000 "for each violation for a 

total penalty of $2,000[]" and "for each . . . week . . . that any of the said 

violations remain outstanding after [July 24, 2017,] an additional penalty of 

$2,000[] per . . . week . . . shall result[.]" The township sent this notice to both 

the P.O. Box and the property address. The certified mail notices sent to the 

P.O. Box and the property address were returned undeliverable, but the notices 

sent by regular mail were not. Cattell testified he also posted the violation notice 

along with a Notice and Order of Penalty for having an unsafe structure on the 

structure itself because the structure was left open to public trespass. 

Cattell described the nature of the violations and the township's 

enforcement efforts. He explained plaintiff corrected the unsafe structure 

violation by fixing a fence in order to prevent public trespass on the property 
4 A-1131-19

and he sent her a Notice of Abatement indicating this violation was satisfied. 

However, he testified that as of the date of trial, July 20, 2018, the township had 

"one active permit on this property for an exterior stucco only" and "there has 

been [no] compliance with [the construction permit] violation to date[.]" 

Explaining the steps taken by the township before assessing fines, Cattell 

stated:

It's a two-step process. I issue a Notice of Violation 

and Order to Terminate [for violations under N.J.A.C. 

5:23-2.16(f)(l)(ii)]. I give the person a reasonable 

amount of time to correct the violation. If they do not 

do that then I have to go to [N.J.A.C. 5:23-2.31(e)] and 

issue the penalty. That's the penalty section of the . . . 

Code.

. . . .

[The Court]: And that would be whether it [is] . . . 

failing to extend construction permits or failing to 

secure the property. . . . [T]he penalty section would 

be the same?

[Cattell]: Yes. 

. . . .

. . . There[ are] only four conditions where I can 

just immediately issue a penalty. And none of the 

things that [defendant] had . . . met that requirement. 

So I'm obligated to give them a Notice of Violation and 

Order to Terminate, and give them a reasonable amount 

of time to correct it. If they don't then I issue a penalty.
5 A-1131-19

Regarding service of the violation notices, Cattell explained the first 

notice was sent to the P.O. Box on April 25, 2017, and the township "did not 

receive anything back from the post office telling us that it was either delivered 

or it was undelivered." The township received back the first notice sent to the 

property on the same date as undeliverable. He explained the violation notice 

he posted on the structure was stapled and read "Notice and Order of Penalty" 

and had a "big orange sticker" on it that said, "unsafe structure notice," and 

included the lot and block numbers, the address, and the date posted. 

Cattell testified that typically, construction applicants submit one 

application for the entire building permit. However, because defendant only 

partially completed construction of the structure's exterior and left it exposed to 

the elements for over seven years, Cattell suggested she "apply for a separate 

permit to start the exterior work to get the exterior of the building . . . 

weatherproofed. Meanwhile, [the township] would do a plan review. [Then, 

s]he would submit a separate application for the interior work." 

The township granted defendant the exterior permit on November 30, 

2017. However, defendant submitted a "flawed" but "completed" application 

for the interior work, including "building, plumbing, electrical, and fire." The 

application for the interior work was subjected to a plan review. Cattell 
6 A-1131-19

explained the plan review process identifies "any items that do not comply with 

code" and produced a "correction list" for the permit applicant to address in 

order to obtain the permit. 

The plan review for defendant's application revealed "building, plumbing, 

[and] electrical items that needed to be addressed" because there were 

"discrepancies between the plans that were submitted . . . and what was written 

on the applications." Cattell noted "[t]he fire [safety]" work defendant 

performed failed on January 5, 2018, "[a]nd the . . . building, plumbing, electric 

[work] had failed prior to that." Cattell testified he called defendant on February 

1, 2018 to pick up the correction list, she returned the call on February 5, and 

picked up the correction list on February 11. 

Cattel also testified he had a conversation with defendant on August 2, 

2017, which led him to believe she was aware of the violations. He also went 

to the property to "do a checkup" because the notices posted on the structure 

"were removed from the structure by persons unknown, [so he] just stopped by 

to see if anything was being done." He testified defendant was present and had

workers performing "maintenance work." After circling the structure, Cattell

"noticed that the back of the house, the walkout basement was secured with 

plywood," and "[t]he fence was fixed in one section." Both items were the basis 
7 A-1131-19

of the violation notice for having an unsafe structure. Cattell testified defendant 

was on the property "to secure it, which led [him] to believe that she did get the 

Notice of the Unsafe Structure." He also "suggest[ed] to [defendant] that [she 

needed a permit] and . . . she said . . . she would follow-up on the expired 

permit." Cattell also noted he, defendant, and the township's assistant solicitor 

met to discuss the "status" of defendant's permit application.

The municipal court judge credited Cattell's testimony and concluded "it 

is clear . . . that there was service, there was proper notice, due process was 

satisfied, and that in fact [defendant] has violated the Administrative Code in 

terms of her requirements for having a building permit." Regarding the penalty, 

the State suggested the "most conservative" minimum calculation would be "the 

initial $2,000 violation" plus "[seventy-five] weeks thereafter" for a total of 

$152,000. The judge imposed $152,000 in fines plus costs, but suspended 

$100,000 for sixty days to enable defendant to come into compliance. The judge 

noted "if both parties are in agreement that . . . progress is being made in the 

right direction to get this where it needs to be, [the court would] . . . consider 

extending that [sixty] days." 

Defendant appealed from the municipal court's decision. She argued the 

State's assertion she had not filed for a new permit was false because "there 
8 A-1131-19

[was] an active application . . . in the works." Contrary to the State's arguments 

she asserted "although [construction is] not completed, [the property] is 

anything but blighted. It's going to be a mansion." Regarding the ten year delay 

in completing the structure, defense counsel argued as follows:

[N]ot of the record, but there are . . . innumerable 

factors, that have contributed to that. It's . . . an 

inordinate amount of time, no question. It's also a 

20,000 square foot home that . . . was multi millions of 

dollars.

. . . One of the many problems . . . is that because 

of . . . actions of township officials[,] the funding 

source, our [mortgage company,] has pulled back, has 

required additional information. That . . . doesn't 

explain [ten] years. But that's only one of about [ten] 

instances where we believe, sometimes because of 

[defendant], sometimes because of the township 

official, sometimes because of nature this property[,]

the . . . building of this property has been extended.

So . . . this is not sitting on their hands for [ten] 

years. . . . [T]he exterior walls are up, not the exterior 

facade, but the walls are up, the floors, the sub-floors 

are there, much of the work has been done and there is 

an active permit process in place now. 

Counsel explained defendant could not continue construction because the 

township issued a separate notice of violation for "doing work on a structure 

without a permit . . . ." 
9 A-1131-19

Defendant also challenged the service of process. She argued the Code

permits posting on the structure only when there is a violation for an unsafe 

structure, not a violation for an expired permit as in her case. She also argued 

in order to provide proof of service by mail, the township had "to submit an 

affidavit of diligent inquiry . . . to prove that that was necessary" and they could 

not prove it was necessary because "[t]hey couldn't say [']we couldn't contact 

[defendant.'] They contacted her many times." Defendant acknowledged she 

did not provide the township her "real address where she was living," but argued 

there were 

multiple face-to-face [or telephone] contacts between 

[defendant] and the construction official . . . where the 

township, first of all, could have compelled her to 

provide her address[ or] . . . hand delivered her the 

personal service or told her about that. And the record 

is clear that that did not occur.

Defendant also argued the fine was unjust and excessive. She asserted the 

fines were miscalculated and should be reduced.

The Law Division judge concluded "the township provided . . . 

[d]efendant with proper service in accordance with N.J.A.C. 5:23-2.3." He 

found as follows: 

The process of service by an administrative 

agency is not subject to the court rules. Shannon v. 
10 A-1131-19

Acad. Lines, Inc., 346 N.J. Super. 191, 196 (App. Div. 

2001). . . . 

Statutory penalties recovered in civil proceedings 

"do not require proof beyond a reasonable doubt that 

the accused transgressed the law." In re P.H., 436 N.J. 

Super. 427, 438 (App. Div. 2014). [T]he State['s 

burden of proof is] . . . by a preponderance of the 

evidence. [Ibid.]

Defendants cannot benefit by taking active 

measure[s] to avoid service. Perry v. Brown, 272 N.J. 

Super. 572, 579 (Law Div. 1993). "If the person 

addressed with a notice of unsafe structure cannot be 

found within the municipality after diligent search, then 

such notice shall be sent by registered or certified mail 

to the last known address of such person . . . and a copy 

of the notice of unsafe structure shall be posted in a 

conspicuous place on the premises and such procedures 

shall be deemed equivalent of personal notice." 

N.J.A.C. 5:23-2.32. Effective service, not perfect 

service is in accordance with constitutional due 

process. Coryell v. Curry, 391 N.J. Super. 72, 81 (App. 

Div. 2006). 

In this case, the township mailed the notices to 

the only addresses the [t]ownship had on file for the 

[d]efendant, to which the [d]efendant had provided. 

These notices were sent to both [d]efendant's P.O. Box 

address and the address of the home in dispute . . . . The 

regular mail copies were never returned, which would 

have indicated that delivery was incomplete and the 

recipient, in this case the defendant, was never notified. 

In addition, the [c]onstruction [o]fficial also posted the 

violations on [d]efendant's property. Defendant asserts 

that these forms are not proper and proper service 

would have been effectuated by hand delivery to the 

defendant. Although, as defendant points out, the 
11 A-1131-19

[c]onstruction [o]fficial may have had opportunities to 

hand deliver the notices to the defendant, under 

[N.J.A.C.] 5:23-2.32, he is not required to do so, 

therefore he cannot be penalized for not doing so.

[(emphasis in original)].

The judge credited Cattell's testimony finding it "credible and lucid, 

including the testimony that he made several efforts to serve the [d]efendant and 

spoke to the [d]efendant on numerous occasions. . . . Cattell also testified the 

[d]efendant took steps to comply with the notice of unsafe structure, indicating 

she received at least one set of summonses." The judge concluded the township 

met its burden to show service of process and rejected defendant's due process 

violation argument. 

The Law Division judge also upheld the fines imposed on defendant. 

Citing N.J.S.A. 52:27D-138, he noted that under the Code the court had the 

discretion to impose fines where a person 

"(l) Violates any of the provisions of this act or rules 

promulgated hereunder; (2) Constructs a structure or 

building in violation of a condition of a building permit; 

(3) Fails to comply with any order issued by an 

enforcing agency or the department; . . . ." Violators 

"[s]hall be subject to a penalty of not more than $2,000" 

when there was a "failure or refusal to comply . . . with 

the knowledge to comply . . . with the knowledge that 

it will endanger the life or safety of any person, in 

which case the penalty shall not exceed $2,000[] per 

violation; [F]ailure to obtain a required permit prior to 
12 A-1131-19

commencing construction or failure to comply with a 

stop construction order shall not exceed $2,000[] per 

violation."

The judge concluded the fines imposed on defendant were appropriate 

because she was subject to the $2,000 fine for "failing to renew an expired 

construction permit" and "$2,000 per week for every week of the violation, 

which is in accordance with the penalties allowed per [N.J.S.A.] 52:27D-138."

However, the judge vacated the $100,000 suspended fine reasoning as follows:

At the [m]unicipal [c]ourt . . . hearing, defense 

counsel argued that the defendant complied with the 

[m]unicipal [c]ourt's order to suspend $100,000 of the 

fines evidenced by defendant's resubmission of the 

application dated February 19, 2019. The [c]ourt had 

received documents from both parties on May 13, 2019 

to clarify the efforts and progress made after the 

sentencing. It appears the defendant submitted another 

application for review within the [sixty] days allotted 

by the [m]unicipal [c]ourt, on February 19, 2019. 

Although the defendant's February 2019 application 

was rejected, as [the State] points out and the 

documents provided to the [c]ourt reveal, the [c]ourt 

feels that this was the step forward that the [m]unicipal 

[c]ourt sought when allowing the $100,000 to be 

suspended. Both parties submitted a second document 

revealing that the defendant made another attempt at 

the application, dated April 29, 2019. However this 

was also rejected. [Defense counsel] sen[t] the [c]ourt 

a third application dated May 8, 2019. 

The three application submissions . . . all 

demonstrate to the [c]ourt that the defendant is making 
13 A-1131-19

an effort to comply with the [c]ourt's holding and 

remedy the situation. Therefore the $100,000 is lifted.

The judge reduced the fine to $52,000 plus $33 in court costs and entered 

judgment accordingly.

Defendant filed a motion for reconsideration. She argued the court should 

revisit the guilty finding because a separate emergent action brought by the 

township to demolish the structure alleging it was unsafe and lacked a building 

permit was denied and the Camden County Construction Board of Appeals had 

already found the property was safe in November 2018. Regarding the building 

permit, defendant alleged Cattell 

unequivocally stated on the record, as [defendant] did 

as well, that as of two days after the issuance of the 

summons for not having a building permit there were 

discussions. And since April . . . 2017 through . . . this 

week, . . . the litigants . . . have been engaged in 

continuing discussions for the issuance of a new 

building permit.

Defendant argued these negotiations were relevant to her attempts to remedy the 

violations. Further, she noted she has "the financial wherewithal and the strong 

desire to complete [the construction] as well." 

Defendant also argued she should not have been fined $2,000 because the 

municipal court did not make the necessary finding that defendant knew the 

property was a risk to life and safety and knowingly put people at risk. 
14 A-1131-19

Moreover, she noted the notice of violation she received stated she could be 

fined up to $1,000 per week not $2,000 as the court found.

The Law Division judge upheld the guilty finding, but granted 

reconsideration in part and reduced the fines. At the outset, he noted his decision 

inadvertently cited the wrong law and the applicable regulation was N.J.A.C. 

5:23-2.31 for failure to have a building permit. The judge agreed the notice of 

violation stated the potential weekly fine was $1,000 not $2,000 and accordingly 

reduced the total fine to $76,000 representing the initial $1,000 fine plus the 

seventy-five weeks of violation at $1,000 per week. The judge further reduced 

the fine, reasoning as follows:

And I also think in fairness in regards to my 

previous decision I am suspending $50,000 of that 

particular fine, realizing and finding that the amount 

that this defendant owes to Cherry Hill at this time is 

$26,000. I'm doing that based upon the fact [the 

municipal court judge] suspended basically two-thirds 

of what he originally found at that time only to get a 

permit, I in my discretion on the appeal didn't say that 

was just held off on the permit. I suspended it 

altogether [be]cause I just felt that that was excessive 

in that matter. 

Likewise in this matter I think that the fine is 

appropriate, but I am giving the benefit of the reasoning 

and deduction of a suspension by [the municipal court 

judge] and in my subsequent appeal[. Therefore], . . . I 

do think [defendant] owes $26,000.
15 A-1131-19

Defendant raises the following points on this appeal:

[POINT I:] THERE IS NOT SUFFICIENT 

CREDIBLE EVIDENCE PRESENT IN THE RECORD 

TO UPHOLD THE LAW DIVISION FINDINGS.

A. THE LAW DIVISION DID NOT FIND 

PROOF BEYOND A REASONABLE 

DOUBT.

B. THE TOWNSHIP DID NOT PROVE 

VALID SERVICE OF PROCESS.

C. THE[RE] WAS INSUFFICIENT 

PROOF OF VIOLATION BY 

DEFENDANT.

D. THE PENALTY SOUGHT BY THE 

TOWNSHIP AND IMPOSED ON 

DEFENDANT EXCEEDS THE 

ALLOWABLE FINE PERMITTED BY 

THE GOVERNING STATUTE AND 

REGULATION.

II.

We review the Law Division's order to determine whether there is 

sufficient credible evidence in the record to support it. State v. Johnson, 42 N.J. 

146, 162 (1964). "Under the two-court rule, appellate courts ordinarily should 

not undertake to alter concurrent findings of facts and credibility determinations 

made by two lower courts absent a very obvious and exceptional showing of 

error." State v. Locurto, 157 N.J. 463, 474 (1999) (citing Midler v. Heinowitz, 
16 A-1131-19

10 N.J. 123, 128-29 (1952)). "Appellate courts should defer to trial court's 

credibility findings that are often influenced by matters such as observations of 

the character and demeanor of witnesses and common human experience that 

are not transmitted by the record." State v. Cerefice, 335 N.J. Super. 374, 383 

(App. Div. 2000) (citing Locurto, 157 N.J. at 474). 

Where the Law Division has adjudicated a motion for reconsideration, we 

review the determination for an abuse of discretion. Fusco v. Bd. of Educ. of 

City of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002). However, our 

review of legal determinations is always plenary. State v. Adubato, 420 N.J. 

Super. 167, 176 (App. Div. 2011). 

A.

We reject defendant's argument that the Law Division utilized the wrong 

standard of proof and should have adjudicated the State's proofs applying a 

beyond-the-reasonable-doubt standard. The violation prosecuted here was a 

civil enforcement of an administrative penalty under the Code and the PEA. "An 

action under the [PEA] . . . is civil in nature." Goldman v. Critter Control of 

N.J., 454 N.J. Super. 418, 429 (App. Div. 2018) (second alteration in original) 

(quoting Dep't of Conservation v. Scipio, 88 N.J. Super. 315, 319 (App. Div. 

1965)). "[C]ivil proceedings to recover a statutory penalty do not require proof 
17 A-1131-19

beyond a reasonable doubt that the accused transgressed the law." P.H., 436 

N.J. Super. at 438 (quoting Scipio, 88 N.J. Super. at 322). "In civil proceedings 

to recover a statutory penalty, the State satisfies the burden of proof placed upon 

it if it establishes defendant's violation by a preponderance of the evidence." 

Dep't of Health v. Concrete Specialties, Inc., 112 N.J. Super. 407, 411 (App. 

Div. 1970). 

B.

We also reject defendant's argument the township failed to effect valid 

service of process. Service of process under the Code is governed by N.J.A.C. 

5:23-2.33, which permits service in manners "otherwise consistent with due 

process." N.J.A.C. 5:23-2.15(a)(1) mandates applicants provide an address "not 

. . . limited to a post office box, but shall specify a physical location where such 

owner or agent may be found during normal business hours." N.J.A.C. 5:23-

2.32 permits service of process by posting where the notice is for an unsafe 

structure. Thus, personal service is not required, and as the Law Division judge 

noted, neither is perfect service. 

We have held "certified mail, return receipt requested, is a mode of service 

meeting due process requirements." Shannon, 346 N.J. Super. at 197. In regard 

to service by regular mail, there is "a presumption that mail properly addressed, 
18 A-1131-19

stamped, and posted was received by the party to whom it was addressed," which 

is "rebuttable and may be overcome by evidence that the notice was never in 

fact received." SSI Med. Servs. v. HHS, Div. of Med. Assistance & Health 

Servs., 146 N.J. 614, 621, 625 (1996) (citations omitted). 

Here, service of process was effectuated as permitted by the Code at the 

addresses defendant provided to the township. The regular mail was not 

returned. Also, the record supports the Law Division judge's finding defendant 

was served because defendant's subsequent remediation efforts and conversation 

with construction officials demonstrated she was aware of the violations.

C.

Contrary to defendant's arguments, we are convinced the township proved

a violation. N.J.A.C. 5:23-2.16(f)(1)(ii) permits a construction official to revoke 

a permit if the project for which the permit was obtained is not completed by the 

third anniversary of the date of the issuance of the permit. The regulation further 

states: 

If a project is not completed by such date, the permit 

holder may apply to the enforcing agency for a one-year 

extension of time for completion of the project. The 

enforcing agency shall not unreasonably withhold 

approval of any such extension request. If the project 

is not completed within the time allowed, the enforcing 

agency shall take such action under the code as may be 

appropriate, including, without limitation, demolition 
19 A-1131-19

of the structure, in which case the legal authority of the 

jurisdiction shall institute appropriate action against the 

owner of the property for recovery of the costs incurred. 

The provisions of this subparagraph shall not apply to:

. . . .

(2) Any building in which all exterior work 

and all required site improvements have 

been completed . . . .

[Ibid.] 

Defendant argues the township "did not prove . . . that there was not 

'unreasonable withholding' of such approval requests or of extensions sought by 

the defendant." She also argues "[n]othing in the record addressed whether the 

exterior work and required site improvements had been completed at the 

property." She asserts because she continuously made new applications, which 

the township denied or required clarifications for, she complied with the Code

and the failure to obtain a permit was due to the township's unreasonable actions.

At the outset, we note nothing in the record supports the argument the 

township acted unreasonably and either intentionally withheld granting 

plaintiff's permit or rejected her application for an illegitimate reason. 

According to the municipal court and Law Division judges, Cattell, the only 

witness to testify in this matter, gave credible testimony in all respects. We 

must defer to these credibility findings.
20 A-1131-19

Cattell explained how defendant's permit had expired, and that defendant 

was in violation of N.J.A.C. 5:23-2.16(f)(1)(ii) because she failed to complete 

the exterior of the structure before the permit expired or obtain a new permit. 

Defendant failed to rebut Cattell's testimony and the State's proofs showing the 

exterior of the structure was comprised of insulation wrap, which had been left 

exposed to the elements and incomplete for several years. 

Cattell also explained the process of the issuance of the violation notice 

and penalty to defendant pursuant to N.J.A.C. 5:23-2.31(e) for failure to comply. 

Defendant's argument that her application for a permit two years after the initial 

one expired complied with the Code lacks merit because the application was 

rejected as incomplete.

D.

Finally, defendant asserts the $26,000 is beyond the penalty permitted for 

violating N.J.A.C. 5:23-2.16(f)(1)(ii). She asserts the regulation does not permit 

a multiplication of the penalty amount because that is only permitted when the 

court finds defendant "failed to comply with any order issued by an enforcing 

agency or the department" pursuant to N.J.S.A. 52:27D-138(a)(3). She argues 

the Law Division judge did not find her guilty of N.J.S.A. 52:27D-138(a)(3) and 
21 A-1131-19

instead made the finding under N.J.A.C. 5:23-2.16(f)(1)(ii), which does not 

permit a penalty multiplier. 

Defendant argues even if the penalty is permissible, we should not uphold 

it because it is disproportionate to the offense, unreasonable, and unfair. She 

asserts her conduct did not warrant the $26,000 penalty because she continually 

sought to address the township's demands and her failure to comply was not 

willful. We reject these arguments. 

N.J.A.C. 5:23-2.31 states as follows:

(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, . . . to institute the appropriate 

proceeding at law . . . 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:

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;
22 A-1131-19

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 . . . above, 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.

4. No such penalty shall be assessed except 

upon notice of violation and orders to 

terminate and upon the expiration of the 

time period delineated in the notice; . . . .

. . . . 

(c) The construction official may assess a monetary

penalty whenever such shall be likely to assist in 

bringing about compliance.

. . . .

(e) Penalties may be levied by an enforcing agency as 

follows:
23 A-1131-19

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 

which case the penalty shall be up to 

$2,000 per violation . . . .

Furthermore, N.J.S.A. 52:27D-138(e)(1) states: 

A penalty for failure or refusal to comply with any 

lawful order shall not exceed $1,000[] per violation, 

unless the failure or refusal to comply is done with the 

knowledge that it will endanger the life or safety of any 

person, in which case the penalty shall not exceed 

$2,000[] per violation . . . . 

As we noted, on reconsideration the trial judge cited N.J.A.C. 5:23-2.31 

as the basis for the violation. He then noted the municipal court judge's findings 

under N.J.S.A. 52:27D-138(e) when he reduced and recalculated the penalty.

We discern no error in the judge's findings. Weekly penalties are clearly 

permitted under N.J.A.C. 5:23-2.31 as is the $1,000 per violation. Defendant's 

failure to address the outside construction of the structure constituted the sort of 

ongoing violation envisioned by the aforementioned statute and regulations.

III.

Finally, contrary to defendant's argument, the Law Division judge

considered defendant's efforts to comply with the township's orders and the 

fairness of the penalty when he twice reduced the penalty. As we noted, the 
24 A-1131-19

judge reduced the fines from $2,000 to $1,000 because the notice initially served 

on defendant indicated the fines could be up to $1,000. The seventy-five week 

multiplier was appropriate because it represented the length of time defendant 

was non-compliant. The judge noted he was further reducing the penalty to 

$26,000 "in fairness . . . ." We discern no reversible error in the calculation 

considering a higher penalty amount was possible under the facts and the 

applicable law.

Affirmed.