MUHAMMAD WHALA v. V. TOWN OF KEARNY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3841-04T53841-04T5

MUHAMMAD WHALA,

Plaintiff-Appellant,

V.

TOWN OF KEARNY,

Defendant-Respondent,

and

JEFFREY FAMILY ASSOCIATES 188, LLC,

Defendant-Respondent/

Cross-Appellant,

and

FJL ENTERPRISES, INC.,

Defendant.

________________________________________________________________

 

Argued January 25, 2006 - Decided March 16, 2006

Before Judges Fall and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Hudson County,

Docket No. L-4466-04.

Alfred V. Gellene argued the cause for

appellant.

Norma Garcia argued the cause for respondent

Town of Kearny (Castano Quigley, attorneys;

Ms. Garcia, on the brief).

John R. Edwards, Jr., argued the cause for

respondent/cross-appellant Jeffrey Family

Associates 188, LLC (Price, Meese, Shulman &

D'Arminio, attorneys; Maria Cristiano Anderson,

on the brief).

PER CURIAM

Plaintiff Muhammad Whala appeals from an order entered on November 16, 2004 granting summary judgment dismissing the complaint against defendant Jeffrey Family Associates 188, LLC (Jeffrey). Defendant Jeffrey cross-appeals from an order entered on January 24, 2005 denying his application for sanctions pursuant to R. 1:4-8.

This appeal centers on plaintiff's claim that Jeffrey obtained a building permit to renovate 188 Kearny Avenue in Kearny without obtaining the requisite site plan approval from the Kearny Planning Board (Board) as required by the Kearny Municipal Land Use Ordinance (KLUO). Plaintiff is the owner and operator of a pizza restaurant at 49 Kearny Avenue. Defendant Jeffrey owns the commercial building at 188 Kearny Avenue. Defendant FJL Enterprises, Inc. (FJL) is a tenant on the 188 Kearny Avenue property, where it owns and operates a Domino's Pizza franchise.

The property at 188 Kearny Avenue is a 10,000 square foot commercial building zoned for retail use. The "building was ultimately converted from [an] auto sales repair facility to a building subdivided into five smaller units, one of which was converted to use as a Domino's Pizza business."

According to the Kearny Construction Code Official (Construction Official), Michael J. Martello, the "use of the building has not changed and does not require site plan approval as the parking requirements for the previous retail space [have] not increased and the current tenant [FJL] is considered a retail space." Moreover, the "size of the building has not increased . . . . The interior changes of the building's structure consisted of a reconfiguration of interior partitions. The existing footprint of the building has not increased in size." The building permit to renovate the property was issued on July 31, 2003. FJL was granted a temporary certificate of occupancy on August 10, 2004.

On August 26, 2004, plaintiff filed a verified complaint and order to show cause seeking to restrain the Town of Kearny (Kearny) from issuing certificates of occupancy to the tenants of 188 Kearny Avenue and restrain the operation of any business within the property pending further order of the court. Following oral argument on September 24, 2004, plaintiff's request for a preliminary injunction was denied.

On November 16, 2004, Jeffrey's motion for summary judgment was granted. After summary judgment was granted in its favor, Jeffrey moved for fees and sanctions pursuant to R. 1:4-8, claiming that plaintiff had engaged in unfounded frivolous litigation. That application was denied on January 24, 2005. On February 18, 2005, an order was entered granting summary judgment in favor of the remaining defendants. This appeal followed.

Plaintiff now argues that (1) the trial court erred in determining that there was no rational basis for the issuance of municipal approval of the renovations to 188 Kearny Avenue; and (2) there is a substantial issue of fact as to whether the defendants relied on the decision of the construction code official in good faith. Plaintiff contends that the trial court erred in granting summary judgment in favor of Jeffrey because he "presented sufficient evidence to show that the procedures of the KLUO were violated in significant ways that should have led the trial court to conclude that there was no rational basis for the decision of the Construction Official" to grant the building permit without Planning Board approval.

The KLUO 36-9 provides: (1) "[e]xcept as provided herein, no building or excavation permit shall be issued for a building, structure or use or any enlargement, expansion or change of use unless a site plan is first submitted and approved by the approving authority;" (2) "[s]ite plan approval shall not be required where: [m]inor repairs to the interior of a building do not involve structural change or enlargement of the building, as determined by the Construction Official;" and (3) "[e]xcept as provided in [the paragraphs quoted above], all construction, reconstruction, alteration or enlargement of a building, structure or use or a change of use or occupancy on or in a non-conforming structure, use or lot shall require site plan approval."

The Construction Official certified in support of the summary judgment motion that "[s]ite plan approval [is] not required" because the "size of the building has not increased which is currently 10,000 feet. The interior changes of the building's structure consisted of a reconfiguration of interior partitions. The existing footprint of the building has not increased in size." The trial court agreed:

The construction official's certification is not refuted. I find he acted in good faith and issued permits. I find that there was reliance on the [issuance of the building permit] by defendants. And therefore, even if the action of the construction official were debatable, which I do not find they were, the Principle of Equitable Estoppel would bar the requested relief sought by plaintiff.

For those reasons, I'll grant summary judgment on behalf of defendants.

Plaintiff argues that the court essentially misinterpreted the KLUO because the changes to 188 Kearny Avenue substantially changed the use of the building and issuance of the building permits "was taken without a reasonable basis." He argues further that the good faith of the Construction Official in issuing the building permit is a factual issue precluding summary judgment.

Summary judgment is appropriate

if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact. The court shall find and state its conclusions in accordance with R. 1:7-4.

[R. 4:46-2(c).]

The trial court must not decide issues of fact; it must only decide whether there are any such issues. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954).

We are bound by the same standard as the trial court in reviewing a grant of summary judgment. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

First, the appellate division must decide "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." Then, "if there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of" summary judgment.

[Groen, Laveson, Goldberg & Rubenstone v. Kancher, 362 N.J. Super. 350, 358 (App. Div.), certif. denied, 178 N.J. 35 (2003) (quoting Brill, supra, 142 N.J. at 540).]

We must then "determine whether the Law Division's legal conclusions [are] correct." Kancher, supra, 362 N.J. Super. at 358. If the evidence "'is so one-sided that one party must prevail as a matter of law,'" we must affirm the grant of summary judgment. Ibid. (quoting Brill, supra, 142 N.J. at 540).

We have carefully considered the record before us in light of plaintiff's arguments and the applicable law. We are satisfied that summary judgment was properly granted. Brill, supra, 142 N.J. at 540.

 
With respect to the cross-appeal, Jeffrey argues that the trial court failed to consider whether plaintiff acted reasonably in denying its application for fees pursuant to R. 1:4-8. The rule provides that a party may apply for sanctions for frivolous litigation. In denying the application, Judge O'Connor noted that "[t]he basic premise of the defendant's argument is that the plaintiff was a vengeful competitor who did not want his business to suffer." He found that plaintiff did not act unreasonably and that "[a]lthough the suit was not particularly strong, the plaintiff's complaint and arguments in support were not frivolous, in my opinion. The plaintiff's arguments, although they were a stretch as to the order to show cause, merited some legal analysis by this court." Accordingly, Judge O'Connor denied Jeffrey's application. We agree, and affirm for the reasons set forth by the judge on the record on January 21, 2005.

Affirmed.

Plaintiff's notice of appeal indicates that he is challenging only the order entered on February 18, 2005 granting summary judgment in favor of FJL and Kearny. In his brief, however, it is clear that he is challenging the order entered on November 16, 2004 granting summary judgment in favor of Jeffrey. Consequently, we will address the November 16 order. Moreover, since plaintiff's brief does not address the February 18 order, we will not address it here.

(continued)

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A-3841-04T5

March 16, 2006