JESSE ROSENBLUM v. BOROUGH OF CLOSTER

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3301-04T1

JESSE ROSENBLUM,

Plaintiff-Appellant,

v.

BOROUGH OF CLOSTER,

Defendant-Respondent.

_________________________________________________________

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October 25, 2005

Submitted September 27, 2005 - Decided

Before Judges Coburn and S.L. Reisner

On appeal from the Superior Court of New Jersey,
Law Division, Bergen County.

Jesse Rosenblum, appellant pro se.

Edward Rogan & Associates, attorneys for respondent
(JoAnn Riccardi, on the brief).

PER CURIAM

This case concerns the Constitutional right of an overly litigious citizen to access our courts. It also requires re-consideration of the procedures to be followed when such a litigant has been prohibited by court order from filing civil complaints without court approval. Jesse Rosenblum has been barred since 1995 by an order of the Law Division, Bergen County, from filing any civil complaint without first obtaining judicial approval. Apparently, the order was entered because Rosenblum had filed many frivolous civil complaints, mostly against the Borough of Closter, where he resides. Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 387 (App. Div. 2000). In November 2004, Rosenblum mailed a letter and proposed civil complaint to the Assignment Judge of Bergen County, asking for permission to file an action in lieu of prerogative writs against Closter. The complaint, read liberally, alleges that a recently adopted land use ordinance violates various provisions of State law. The Assignment Judge sent a copy of the proposed complaint to Closter for comment. Closter's attorneys filed a brief opposing Rosenblum's request. The brief was accompanied by a certification and municipal documents. Rosenblum filed an answering brief. The Assignment Judge issued a letter opinion on January 18, 2005, forbidding the filing of the complaint on the grounds that it was frivolous, that Rosenblum had filed numerous frivolous complaints since 1988, and that he could not be deterred by monetary sanctions. Rosenblum filed a timely appeal from the order denying his application, and both sides filed briefs.
In Rosenblum, supra, 333 N.J. Super. at 387, based on a thorough discussion of the case law around the country, we held that

an Assignment Judge can prevent the filing of a complaint . . . when the plaintiff's prior litigation demonstrates a pattern of frivolous pleadings, provided that it is also demonstrated that traditional sanctions for frivolous litigation have provided no deterrent and the Assignment Judge reviews the complaint and is satisfied that it has no merit.

Rosenblum's brief contains no criticism of the Assignment Judge's findings that he has burdened parties and the courts with numerous frivolous actions and that the threat of monetary sanctions would not protect the interests of the court or the defendant in this case if the complaint is frivolous. Rather, he limits his argument to the merits of the ordinance and to the question of whether his complaint fairly states a cause of action. Closter's brief supports the Assignment Judge's decision on the merits and also seeks dismissal of the appeal because Rosenblum's appendix included documents not submitted below. Since we have not considered the documents Rosenblum improperly included in his appendix, the only substantial issue projected by the parties is whether the complaint states a non-frivolous cause of action. We are satisfied that it does, and therefore we reverse and remand for processing of this case in the ordinary manner.
Rosenblum's complaint addresses Closter's different treatment of two-family residences based on the zone in which the residences are located in relation to its requirement for Residential Certificates of Continued Occupancy. To place the complaint in context, we first must take note of two earlier ordinances. In 1940, Closter adopted a zoning ordinance that allowed only one-family residences in Zone A, but allowed in Zone B:
[s]ingle detached homes used for not more than two families per structure and a double house used as a two-family residence; provided, however, that the same shall be permissible only in the conversion of a residential structure existing upon the effective date of this chapter and only where said structure and land upon which it is existing complies with the provisions of this chapter and with the provisions of all other municipal ordinances and codes.

[Closter, N.J., Zoning Code art. V, 200-9B
(emphasis added).]

In 2003, Closter adopted Ordinance No. 2003:898, which was designed to insure that all residential buildings complied with Borough Ordinances, and which provided, in section 87.4, that

[n]o person shall occupy, rent, lease, transfer title, or inhabit as tenant or tenants or occupy as a new owner of any residential use unless and until the current owner or representative of such owner, has applied for and secured a Certificate of Continued Occupancy from the Building Department of the Borough of Closter.

On October 13, 2004, Closter adopted the ordinance at issue, No. 2004:926, which reads as follows:
AN ORDINANCE AMENDING AND SUPPLEMENTING CHAPTER 87 OF THE CODE OF THE BOROUGH OF CLOSTER REGARDING BUSINESS AND RESIDENTIAL CERTIFICATES OF OCCUPANCY

WHEREAS, the Borough of Closter desires to amend Chapter 87 of the Code of the Borough of Closter regarding Business and Residential Certificates of Occupancy; and

WHEREAS, certain provisions of Chapter 87 pertaining to residential Certificates of Occupancy require an inspection conducted by the Construction Code Official or his designee to ensure applicable municipal ordinances affecting the use and occupancy of the premises have been reasonably enforced;

WHEREAS[,] said inspections may have the impact of uncovering property uses that are existing but not necessarily sanctioned by the Borough Code, such as in cases where the inspector finds a residence is being used as a two-family dwelling without the appropriate or required approvals of the Borough; and

WHEREAS, this Ordinance supplements certain provisions of Chapter 87 at the recommendation of appropriate Borough officials who have determined that said clarifications are required to ensure the proper administration of this Chapter;

NOW, THEREFORE, BE IT ORDAINED by the Mayor and Council of the Borough of Closter, County of Bergen and State of New Jersey as follows:

Section 1. 87-5A shall be added and shall read as follows:

87-5A. Special Conditions Applicable to Certain Two Family Residences.
Any residence found upon inspection to be utilized as a two-family dwelling without the appropriate or required approvals of the Borough shall be subject to the following review:

1. Zone A - if the residence is located in Zone A, the homeowner will be referred to the Zoning Board of Adjustment. In Zone A, two-family residences are not permitted, unless said use was in existence prior to the enactment of the Borough's Zoning Ordinance (1940) or the residence was issued an appropriate use variance from the Borough subsequent to that date. The property owner must either show proof of said use variance or must apply to the Board for the appropriate variance. The burden of proof is on the homeowner to show that the property was continuously used as a two-family residence prior to 1940

2. Zone B - if the residence is located in Zone B, the homeowner must submit proof to the Construction Code Official or his designee showing that the residence has been assessed as a two-family residence and the real estate taxes on the residence have been paid pursuant to this assessment continuously since 1990. Said showing of proof is necessary prior to the issuance of a Residential Certificate of Continued Occupancy (note that all other requirements of this Ordinance must be met as well in order for the Continued Certificate of Occupancy to be issued).

Section 2.
 
If any sentence, section, clause or other portion of this Ordinance or the application thereof to any person or circumstance shall, for any reason, be adjudged by a court of competent jurisdiction to be invalid, such judgment shall not affect, impair or repeal the remainder of this Ordinance. All Ordinances or parts thereof inconsistent herewith are hereby repealed to the extent of such inconsistency. This Ordinance shall take effect immediately upon final passage and publication as required by law.
 
The complaint alleges that this ordinance's more lenient and informal treatment of two-family residences located in Zone B "is a substantial impairment of the intent and purpose of the zoning scheme." In short, Rosenblum contends that Zone B residents should be required to apply to the board of adjustment for its approval before receiving a "Residential Certificate of Continued Occupancy" instead of being permitted to simply prove to the Construction Code Official that the "residence has been assessed as a two-family residence and the real estate taxes on the residence have been paid pursuant to this assessment continuously since 1990." He also alleges that they should have to prove to the board of adjustment that their house existed, though not necessarily as a two-family house, before the 1940 ordinance was adopted.
Arguably, this latest ordinance violates the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1 to -129. Of particular concern is N.J.S.A. 40:55D-68 ("Section 68"), which governs the issuance of certificates confirming that a non-conforming use is legal in the sense that it existed before adoption of the ordinance excluding such a use in the particular zone, and which reads as follows:

Nonconforming structures and uses
 
Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied and any such structure may be restored or repaired in the event of partial destruction thereof.

The prospective purchaser, prospective mortgagee, or any other person interested in any land upon which a nonconforming use or structure exists may apply in writing for the issuance of a certificate certifying that the use or structure existed before the adoption of the ordinance which rendered the use or structure nonconforming. The applicant shall have the burden of proof. Application pursuant hereto may be made to the administrative officer within one year of the adoption of the ordinance which rendered the use or structure nonconforming or at any time to the board of adjustment. The administrative officer shall be entitled to demand and receive for such certificate issued by him a reasonable fee not in excess of those provided in R.S. 54:5-14 and R.S. 54:5-15. The fees collected by the official shall be paid by him to the municipality. Denial by the administrative officer shall be appealable to the board of adjustment. Sections 59 through 62 of P.L.1979, c. 291 (C. 40:55D-72 to C. 40:55D-75) shall apply to applications or appeals to the board of adjustment.
 
Under this statute, with the minor exception for applications made "to the administrative officer" within a year of the adoption of a zoning ordinance, only the board of adjustment is empowered to certify that "the use or structure existed before adoption of the ordinance which rendered the use or structure nonconforming." And the MLUL provides that "[a]ny power expressly authorized by this act to be exercised by . . . [a] board of adjustment shall not be exercised by any other body, except as otherwise provided in this act." N.J.S.A. 40:55D-20 ("Section 20"). In Township of Stafford v. Stafford Zoning Board, 154 N.J. 62, 69-70 (1998), the Court confirmed the reach of Section 20, noting that "[t]he zoning board's power to certify nonconforming uses is exclusive and may not be exercised by any other municipal agency" and held that applications under Section 68 had to be made on notice to nearby property owners in accordance with N.J.S.A. 40:55D-12. Closter's treatment of Zone A residences in the ordinance under review conforms to Section 68, although it does not include the notice requirement. The application must be made to the board of adjustment, which will certify the two-family use as valid if it existed before the 1940 ordinance was enacted. Provided everything else is in order, the Construction Code Official would then issue the Certificate of Continued Occupancy. But the ordinance's treatment of Zone B residences would appear to contravene Section 68 since the Construction Code Official could grant the Certificate of Continued Occupancy even if the structure was built after 1940 simply because it had been taxed as a two-family structure since 1990. Although Closter describes a two-family residence in Zone B as a permitted use, that is so only if the structure itself had been built before the 1940 zoning ordinance was enacted. If the residence was built after adoption of that ordinance, its later conversion to a two-family would be illegal under the 1940 ordinance. Closter further relies on the following principle of law set forth in Comparo v. Township of Woodbridge, 91 N.J. Super. 585, 589 (App. Div. 1966):

[W]here, in proper circumstances, a municipality chooses to grant what amounts to retroactive amnesty from the restrictive effects of a zoning change, its objective should not be thwarted, unless, of course, the objective is founded in bad faith, or the general public (or a taxpayer) suffers substantial injury.

In essence, Closter argues that this principle justified its decision to allow a Zone B resident in an existing two-family house to obtain the requisite certificate so long as the use existed since 1990 and had been assessed as such, with all real estate taxes paid. We note that it would appear that the ordinance modifies the zoning ordinance in this respect and that it was seemingly adopted without referring the matter to the planning board, an apparent violation of N.J.S.A. 40:55D-64, which section is mandatory. Hochberg v. Borough of Freehold, 40 N.J. Super. 276, 282 (App. Div. 1956). Furthermore, even assuming that the enactment complied with Hochberg, it would still appear to contravene Sections 68 and 20, as construed by the Court in Township of Stafford, supra, 154 N.J. at 69, because it allows someone to decide the case at the municipal level other than the board of adjustment.
Our comments should not be taken as a resolution of the validity of Closter's treatment of the Zone B two-family houses. Rather, our point is simply that Rosenblum's claims are not frivolous, and therefore the Assignment Judge should have permitted the filing of the complaint.
In Rosenblum, supra, 333 N.J. Super. at 390, we emphasized that the purpose of requiring judicial permission for the filing of a civil complaint, when the offeror of the complaint was someone who had abused parties and the courts by the frequent filing of frivolous complaints, was to protect the courts and the parties from wasting their time and money. That purpose is entirely undercut when, as here, the judiciary invites the participation of the defendant in the process. Therefore, the issue should be decided based on a review of the complaint itself and such other documentation as the judge may reasonably demand of the plaintiff.
Reversed and remanded for further proceedings consistent with this opinion.
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