KLD PROPERTIES, LLC v. PETER ABBALLE, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4575-04T24575-04T2

KLD PROPERTIES, LLC,

Plaintiff-Appellant,

v.

PETER ABBALLE, in his capacity

as the Construction and Zoning

Officer of the Borough of

Emerson, the BOROUGH OF EMERSON,

the MAYOR AND COUNCIL OF THE

BOROUGH OF EMERSON, and the

ZONING BOARD OF ADJUSTMENT OF

THE BOROUGH OF EMERSON,

Defendants-Respondents.

__________________________________

 

Argued March 1, 2006 - Decided June 23, 2006

Before Judges Wefing, Wecker and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

BER-L-013591-04.

Andrew T. Fede argued the cause for appellant

(Herten, Burstein, Sheridan, Cevasco, Bottinelli,

Litt & Harz, attorneys; Mr. Fede, on the brief).

William T. Smith argued the cause for respondents (Hook, Smith & Meyer, attorneys; Mr. Smith,

of counsel; David R. Bruins, on the brief).

PER CURIAM

Plaintiff KLD Properties, LLC, appeals from the judgment of the Law Division dismissing its action in lieu of prerogative writs, challenging defendant Peter Abballe's refusal, in his capacity as the construction official for the Borough of Emerson, to issue construction permits to erect a mixed-use structure previously approved by defendant Zoning Board of Adjustment. Plaintiff sought mandamus relief ordering Abballe to review its building permit applications, as a corollary to the rights created by the Board's June 19, 2002 and August 18, 2004 resolutions granting a variance to KLD, and by the multiple extensions of these approvals granted thereafter.

The matter was presented to the trial court on cross-motions for partial summary judgment. The court denied plaintiff's motion and granted defendants' motion, determining that the Board's grant of variance extensions "were done without subject matter jurisdiction, are palpably void, and are not entitled to enforcement." After reviewing the record and considering prevailing legal standards, we reverse.

I

As noted by the trial court, the salient facts are not disputed. Plaintiff owns property in the Borough of Emerson, designated on the municipality's Tax Map as lots 5 and 6 in block 603, commonly known as 8 Emerson Plaza West. The property is located in the Limited Business East Zone (the "LBE Zone"), where residential development is prohibited.

In 2002, plaintiff filed an application for development of the property with the Zoning Board of Adjustment seeking a use variance to erect a structure consisting of three residential apartments to be located above retail commercial space on the ground floor. Plaintiff also sought bulk variances for a deficient front yard setback and for undersized parking spaces.

The Board conducted four public hearings in connection with plaintiff's application. On June 19, 2002, the Board adopted a resolution approving plaintiff's application. The approval resolution contained eight specific conditions, including that "[a] building permit must be obtained before work begins" and "[a]ll other regulations of the Borough of Emerson will be complied with, without exception." Although the resolution was silent as to the need for plaintiff to secure approvals from any other governmental agency, it is not disputed that given the property's proximity to Kinderkamack Road, a county roadway, plaintiff was required to obtain site plan approval from the Bergen County Planning and Economic Development Board ("Bergen County Board"). N.J.S.A. 40:27-6.6.

On October 11, 2002, approximately four months after securing municipal approval for the project, plaintiff filed its site plan review application with the Bergen County Board. On June 14, 2004, over a year and a half after obtaining municipal approvals, plaintiff received initial approval from the County Board. Final approvals were issued on August 4, 2004.

At all times relevant to this action, the Borough's zoning ordinance provided that zoning variances would expire after one year from the date of publication, unless the construction contemplated by the variance actually had commenced. Specifically, Borough of Emerson Code 47-20 provided:

Any variance from the terms of this chapter hereafter granted by the Board of Adjustment permitting the erection or alteration of any structure or structures or permitting a specified use of any premises shall expire by limitation unless such construction or alteration shall have been actually commenced on each and every structure permitted by said variance or unless such permitted use has actually been commenced within one year from the date of publication of the notice of the judgment or determination of the Board of Adjustment; except, however, that the running of the period of limitation herein provided shall be tolled from the date of filing any appeal from the decision of the Board of Adjustment to the governing body or to a court of competent jurisdiction until the termination, in any manner of such appeal or proceeding.

[Emphasis added.]

During the almost two years that Bergen County was reviewing the application, plaintiff requested extensions of its variance approvals on four separate occasions. The minutes of the Zoning Board's meeting dated July 16, 2003, reflect that plaintiff's first extension request was dated July 3, 2003. The Board carried the matter until its August 20, 2003 hearing, and again until its September 17, 2003 hearing, at which time it approved a six-month extension. No reasons were given for the extension approval.

On April 21, 2004, the Board granted a second extension, setting May 20, 2004, as the expiration date. Once again, the Board gave no reasons for its decision. The minutes of the meeting reflect that the Borough's mayor was present, and informed the Board that he felt "that the project will fit in nicely and be a great asset to the community." Approximately one month later, on May 20, 2004, the Board considered plaintiff's third extension request. This time, the Board specifically acknowledged plaintiff's pending application before the Bergen County Board, and extended the approvals until June 17, 2004.

On June 16, 2004, the Board considered plaintiff's fourth extension application. Following extensive debate, the Board granted an extension until July 22, 2004, on a vote of five in favor and two opposed. On or about the same date, plaintiff received conditional approval of its site plan application from the Bergen County Board. Approximately one week later, plaintiff filed the approved site plans with defendant Abballe, in his capacity as the municipal construction official, requesting that he review the plans and issue a building permit.

Based on advice received from the Borough's governing body, through its attorney, William T. Smith, Abballe refused to review the plans and issue the building permit. It was the Borough's position that Abballe lacked the legal authority to issue the permit, because construction had not commenced within one year of the Board's publication of the initial variances. Thus, pursuant to 47-20 of the Borough's Code, the municipal Zoning Board's extensions were not legally valid, and the variance approvals had expired.

In a letter to the municipal Zoning Board's attorney, dated June 21, 2004, Smith wrote that the Board lacked the authority to grant any extensions of its own approvals. According to Smith, only the municipal governing body has the authority to grant such extensions. Finally, Smith added that "I have been directed by the Governing Body to instruct our Zoning Official [Abballe] to prohibit the issuance of any building permits for the subject property for any use not permitted in the zone, and to treat the grant of a variance by the Board as having expired."

On or about July 9, 2004, pursuant to N.J.S.A. 40:55D-70(a), plaintiff filed an appeal with the Zoning Board challenging Abballe's failure to act upon its request for the issuance of a building permit. On July 21, 2004, the Board held a public hearing in which it considered plaintiff's appeal. On August 18, 2004, the Board adopted a resolution memorializing its decision that it "has the implicit authority to grant extensions of time on use variances for good cause shown on notice to all parties based on the Municipal Land Use [Law] and New Jersey [c]ase law." The resolution also directed Abballe to process plaintiff's building permit.

In accordance with the Board's decision, plaintiff resubmitted its building permit application to Abballe. In a letter dated October 29, 2004, Abballe advised plaintiff in writing that he would not issue a building permit because the variances previously granted by the Zoning Board had expired. Thus, pursuant to Borough of Emerson Code 47-20, plaintiff's only recourse was to file a new use variance application with the Zoning Board.

II

Plaintiff argues that Borough of Emerson Code 47-20 is legally defective, because it places an arbitrary time limitation on a variance granted under N.J.S.A. 40:55D-70(d). Because plaintiff did not raise this issue before the trial court, we decline to consider it here. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We note, however, that we have upheld the validity of a municipal ordinance imposing a time limit on the viability of variances granted by municipal zoning boards. Ramsey Assocs., Inc. v Bd. of Adjustment of the Borough of Bernardsville, 119 N.J. Super. 131, 133 (App. Div. 1972).

Plaintiff next argues that the trial court erred when it concluded that the Emerson ordinance divested the Zoning Board of jurisdiction to grant extensions of its own variances, even when a developer demonstrated that the additional time requested was needed to satisfy the condition requiring county planning board site plan approval. Alternatively, plaintiff contends that the Zoning Board's exercise of jurisdiction was not ultra vires in the primary sense, and therefore was not void per se.

Because these questions involve a purely legal determination, and were decided by the trial court in the context of defendants' motion for summary judgment, we will employ the same standard of review. Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div. 2003); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). That is, we will first decide whether there are any genuine issues as to any material fact. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536-37 (1995). If not, we must determine whether the trial court's ruling on the law was correct. Brill, supra, 142 N.J. at 545. In going about this analysis, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." State v. Harris, 181 N.J. 391, 419 (2004), cert. denied, ___ U.S. ___, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005) (quoting Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).

We start our analysis by acknowledging that generally, decisions made by a municipal governing body have a presumption of validity. Witt v. Borough of Maywood, 328 N.J. Super. 432, 442 (Law Div. 1998), aff'd, 328 N.J. Super. 343 (App. Div. 2000). This presumption does not apply, however, when a court reviews municipal decisions regarding questions of law that are based upon the interpretation of the Municipal Land Use Law ("MLUL"), and the local zoning ordinance. Wyzykowski v. Rizas, 132 N.J. 509, 518-520 (1993). Interpretation of the MLUL and local zoning ordinances are reviewed under a de novo standard. Ibid; Adams v. DelMonte, 309 N.J. Super. 572, 583 (App. Div. 1998); Tennis Club Assocs. v. Planning Bd. of Teaneck, 262 N.J. Super. 422, 432 (App. Div. 1993).

As creatures of the Legislature, zoning boards of adjustment only possess the powers specifically granted by the MLUL. Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 53-54 (1998). N.J.S.A. 40:55D-70 and N.J.S.A. 40:55D-76 delineate the jurisdictional authority of a zoning board. With respect to municipal governing bodies, the MLUL confers upon such bodies the legal authority to develop and adopt, by ordinance, local zoning schemes.

Under this system, local zoning boards are expected to adhere strictly to their limited role in land use administration. Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 561-62 (App. Div. 1996); Feiler v. Fort Lee Bd. of Adjustment, 240 N.J. Super. 250, 255 (App. Div. 1990), certif. denied, 127 N.J. 325 (1991). Thus, the zoning board of adjustment is bound by the ordinances even if it disagrees or finds the ordinance impractical or undesirable. Kaufmann v. Planning Bd. for the Twp. of Warren, 110 N.J. 551, 564 (1988); Terner v. Spyco, Inc., 226 N.J. Super. 532, 542 (App. Div. 1988).

Here, the Borough's ordinance explicitly provides that any variance granted by the Zoning Board of Adjustment for the construction of a non-conforming structure "shall expire . . . unless such construction . . . shall have been actually commenced . . . or unless such permitted use has actually been commenced within one year from the date of publication of the notice of the judgment or determination of the Board of Adjustment." The ordinance does not authorize the Board of Adjustment to enlarge the time that a variance remains valid, or to grant an extension of the variance for any reason, even if there is good cause.

In this light, we reject plaintiff's argument that, even in the face of the clear language in the ordinance, we should nevertheless determine that the Zoning Board has the inherent power, under the MLUL, to grant such extensions for good cause. Although we recognize that plaintiff could not go forward with the project without first securing the county board's approval, we find no legal support for empowering the municipal board to act in a manner inconsistent with municipal zoning legislation.

Plaintiff next argues that even if the act of granting multiple extensions of the variance was ultra vires, it was ultra vires in the secondary sense and not the primary sense, and is therefore not void as a matter of law. We find this argument persuasive. Our Supreme Court has described the distinction between the two types of ultra vires actions as follows:

There is a distinction between an act utterly beyond the jurisdiction of a municipal corporation and the irregular exercise of a basic power under the legislative grant in matters not in themselves jurisdictional. The former are ultra vires only in a primary sense and void; the latter, ultra vires only in a secondary sense which does not preclude ratification or the application of the doctrine of estoppel in the interest of equity and essential justice.

[Middletown Twp. Policeman's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 368 (2000) (quoting Skulski v. Nolan, 68 N.J. 179, 198 (1975)).]

We have applied these distinctions in other settings. In Williams Scotsman, Inc. v. Garfield Bd. of Educ., 379 N.J. Super. 51, 58-62 (2005), certif. denied, 186 N.J. 241 (2006), we found a board of education's instruction to a contractor that it did not need to comply with the public bidding process in connection with the purchase of ten trailers was an ultra vires act only in the secondary sense, even though public contract statutes explicitly required such contracts to comport with public bidding requirements. We thus held that the plaintiff was entitled to assert in a plenary hearing that the board of education was estopped from later arguing that the contract was ultra vires and void as a matter of law. Id. at 62.

Thus, as the Supreme Court found in Middletown Twp., supra, 162 N.J. at 367 (quoting Gruber v. Mayor and Twp. Comm. of the Twp. of Raritan, 39 N.J. 1, 13 (1962)), the doctrine of estoppel "may be invoked against a municipality 'where interests of justice, morality and common fairness clearly dictate that course.'" In Middletown, the Court enjoined a municipality's attempt to terminate the post-retirement health benefits of a retired employee, despite the fact that granting these benefits contravened the express provisions of a statute. Id. at 369-71. The Supreme Court held that although the agreement was undisputedly ultra vires, it was only ultra vires in the secondary sense, because the township had the authority to enter into collective negotiation agreements and grant benefits to retiring employees. Ibid.

We hold that the Zoning Board of Adjustment did not act in this case in a manner "utterly beyond [its] jurisdiction." By granting the extensions, the Board committed an "irregular exercise of a basic power under the legislative grant in matters not in themselves jurisdictional." Middletown Twp., supra, 162 N.J. at 368 (quoting Skulski, supra, 68 N.J. at 198). Rather than require plaintiff to re-submit the same application and provide the same notices to the same people, the Board extended the variance without providing notice to the public a second time. In fact, the action taken here is similar, but far less egregious, than in Williams Scotsman, Inc., supra, 379 N.J. Super. at 62, because unlike in that case where the public was not given notice of the availability of a public contract on which it could bid, the public here had previous notice of the variance request and enjoyed the opportunity to participate fully at the hearings where plaintiff's application was discussed and ultimately approved.

In addition, this is not a case where the governing body did not have notice of the variance and subsequent extension requests. As noted earlier, during the April 21, 2004 hearing the mayor was present and spoke to the Board concerning plaintiff's variance extension. According to the minutes of the hearing, the mayor fully endorsed the project as a "great asset to the community."

A municipality is subject to the equitable remedy of estoppel when invocation would not "hinder or prejudice essential governmental functions, and especially where the irregularity or deficiency is largely technical or formal and not of the jurisdiction . . . . [T]he doctrine of estoppel may be invoked against a municipality to prevent manifest wrong and injustice." Vogt v. Borough of Belmar, 14 N.J. 195, 205 (1954). Estopping a municipality from revoking a variance does not frustrate an essential public function or prejudice an essential governmental function.

As conceded by the Borough, no one from the public objected to the variance extension, nor sought judicial review of the Board's authority to grant such extensions, including the governing body that is now a respondent in this appeal.

By way of recapitulation, we hold that the actions of the Board in granting plaintiff's extensions of the variances were ultra vires acts of a secondary nature, and therefore not void as a matter of law. Because the Borough had knowledge of the Board's actions at the time they were taken, it is estopped from now arguing that the variance extensions were ultra vires in the primary sense. The Law Division's order denying plaintiff's application for a writ of mandamus is reversed. Defendant Construction Official is ordered to review plaintiff's application for a building permit.

Reversed.

 

The complaint originally included a second count seeking damages pursuant to the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, based on the allegation that defendants deprived plaintiff of its substantive rights, privileges and immunities guaranteed by the Constitution and/or the laws of this State. That aspect of plaintiff's cause of action was dismissed by consent and is not part of the issues raised in this appeal.

The cover page of the County Board's site plan application emphasized that: "Applications for County Planning Board review and approval should be filed with the County immediately after applications are filed with the municipality. This is very important in the timing of the review and approval."

We also note that if the Borough Code did not limit the duration of a variance, the MLUL would not otherwise prevent the Zoning Board of Adjustment from issuing a conditional variance or a variance without an expiration date.

(continued)

(continued)

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A-4575-04T2

June 23, 2006