THOMAS CALLERY et al. v. TOWNSHIP OF WEEHAWKEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5902-04T35902-04T3

THOMAS CALLERY and

WILLIAM CALLERY,

Plaintiffs-Appellants,

v.

TOWNSHIP OF WEEHAWKEN,

Defendant-Respondent.

_______________________________________

 

Submitted April 24, 2006 - Decided May 15, 2006

Before Judges Fall, Yannotti and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. HUD-L-6093-03.

Greenberg, Walden & Grossman, attorneys for appellants (Marvin R. Walden, Jr., on the brief).

Venino and Venino, attorneys for respondent (Joanne Venino, on the brief).

PER CURIAM

On November 17, 2003, plaintiffs Thomas Callery and William Callery filed an action against defendant Township of Weehawken (Weehawken) seeking a declaratory judgment that defendant's zoning ordinance unconstitutionally denied plaintiffs any and all reasonable use of their property and constituted a taking of property without just compensation. Plaintiffs sought either a judgment compelling Weehawken to re-zone the property or to compensate them by paying fair market value for the land. Plaintiffs filed an amended complaint on December 23, 2003 to correct the description of the property. Plaintiffs appeal from an order entered on June 10, 2005 dismissing the amended complaint for failure to exhaust administrative remedies. We affirm.

Plaintiffs are brothers who own two adjacent lots in Weehawken. The two lots comprise less than an acre. The property is located south of Pershing Road, on the downward slope of the Palisades cliffs between Boulevard East at the top of the cliff and Port Imperial Boulevard, which runs north and south along the Weehawken waterfront. Plaintiffs allege that the property has been owned by plaintiffs' family for about 120 years and had been the site of an inn and tavern for most of that time. Plaintiffs acquired the lots in 1997, as beneficiaries of the estate of another brother, who died in November 1996. The estate acquired the property in December 1996 from F.P.R. Company, Inc.

The property is located within Weehawken's B-2 zoning district, which is called the "Outdoor Recreation Zone." Weehawken's zoning ordinance states that the purpose of the B-2 zone is to provide an area on the Hudson River waterfront for public and/or commercial outdoor recreation, that is "compatible with the aims of preserving the beauty of the Palisades, improving the condition of the waterfront, and securing a portion of the waterfront for recreational use by the public." The ordinance provides that the following are "permitted principal uses" of property within the zone:

1. Commercial and non-commercial outdoor recreation uses including golf short courses and driving ranges, swimming pools, archery ranges, marinas, ice skating rinks, tennis courts, day camps, nature study areas, [and] uses similar in nature and impact.

2. Uses of land and buildings by the Township for Township purposes.

The ordinance allows accessory uses and buildings in the zone if they are "incidental and necessary" to the "permitted principal uses." The ordinance prohibits the following uses in the B-2 zone:

1. Fair grounds, carnivals, amusement parks, miniature golf, zoos, animal parks and all uses considered similar in nature and impact by the Board of Adjustment.

2. Indoor recreation of all types.

In addition, under the ordinance, the minimum lot size in the B-2 zone is three acres, with maximum coverage of 15% and maximum height of twenty feet. Dwelling units are not permitted in the B-2 zone.

Properties in the B-2 zone are also subject to Weehawken's Steep Slope District regulations which, according to the regulations, were adopted to preserve and enhance the Palisades as a prime natural resource, protect people and property from potentially hazardous conditions due to the grades and geology in the vicinity of the Palisades cliffs, preserve a view of the cliffs and encourage innovative design solutions while employing appropriate resource management practices.

The Steep Slope District regulations establish development requirements for the district, including performance standards, design and construction standards, cut and fill requirements, grade requirements, set back and buffer restrictions and design guidelines. The regulations provide that, "No structures shall be located on the Cliff Face," which is defined to mean "a sheer, nearly vertical slope of exposed bedrock." The regulations also contain the following waiver provision:

The Planning Board shall have the right to waive any of the requirements of this Article if the strict enforcement thereof will cause undue hardship to the applicant or if the benefits of granting the waiver will outweigh any detriments caused by the waiver. Notwithstanding the foregoing, the Planning Board shall not have jurisdiction to grant a density greater than that permitted by [the regulations]. Such jurisdiction shall lie only with the Board of Adjustment in accordance with applicable provisions of the Municipal Land Use Law.

Plaintiffs contend that the ordinance placing the property in the B-2 zone, coupled with the regulations governing properties in the Sleep Slope District, deprive them of any reasonable use of the property. William Callery states in his certification that the property is land-locked without access to the Hudson River on the east. William asserts that the property is bordered by certain railroad tracks and a recently built train station on the Weehawken waterfront. He states, "Any practical use of the property has been eliminated by zoning the property [for] recreation."

William also says that, since he and his brother acquired the property, they have attempted to sell the property subject "to zoning variance and/or construction permits." He asserts that all attempts to sell the property have failed. William adds, "We were advised by the buyers during informal meetings had with Town officials that development would not be permitted."

Plaintiffs moved for summary judgment on the ground that the Township's zoning restrictions as applied to plaintiffs' property constitute a taking of private property for public use without just compensation. Judge Camille M. Kenny denied the motion, finding that the record was inadequate to establish that the ordinance was unconstitutional as applied to plaintiffs. The judge noted that there was no evidence before the court concerning plaintiffs' attempts to sell the property, nor was there evidence of "someone refusing to buy or of any effort to have somebody go before the Zoning Board of Adjustment to ask for some type of change so that construction of some type could be permitted." The judge stated that because plaintiffs had not exhausted their administrative remedies, there was no way of knowing what action Weehawken's zoning board would take if plaintiffs applied for a variance.

Judge Kenny also rejected plaintiffs' assertion that the ordinance was unconstitutional on its face. The judge found that there was insufficient evidence upon which to make such a determination. The judge asserted that she would not invalidate the entire ordinance

because one person is dissatisfied with a small piece of land being zoned as B-2, which it has been, apparently for quite some time but has taken no action to remedy that or...give the Township the opportunity to remedy that through a variance or...through some type of development which has not even been proposed to the Township.

So, I find this to be completely premature. I find this record to be scant, if anything, to...support invalidating as unconstitutional the zoning ordinance of the Township of Weehawken....

Weehawken moved in May 2005 to dismiss the amended complaint because plaintiffs had not exhausted their administrative remedies. Plaintiffs filed a cross-motion for summary judgment on their claim that the ordinance was unconstitutional. Judge Peter F. Bariso, Jr., granted Weehawken's motion to dismiss and denied plaintiff's summary judgment motion.

Judge Bariso concluded that the record was insufficient to establish that the ordinance was unconstitutional. The judge also found that exhaustion of administrative remedies was required before the court would consider plaintiffs' constitutional challenge to the zoning regulations. Judge Bariso noted, "There has been absolutely no application made to any administrative body within Weehawken regarding this piece of property at which time it can be seen whether or not a variance would or would not be granted." On June 10, 2005, the judge entered the order dismissing plaintiffs' amended complaint without prejudice. This appeal followed.

Plaintiffs argue that the judge erred in finding that they were required to exhaust administrative remedies. They contend that the issue of the constitutional validity of the ordinance is a question of law, which is within the province of the judiciary, not the local zoning board. Plaintiffs contend that administrative expertise and fact-finding are not required for a determination that the ordinance is unconstitutional. They further contend that pursuit of administrative remedies would be futile, even if their challenge to the ordinance is deemed to be an as-applied challenge. We disagree.

In Abbott v. Burke, 100 N.J. 269 (1985), the plaintiffs challenged the constitutionality of New Jersey's Public School Education Act of 1975, N.J.S.A. 18A:7A-1 to -33. They alleged, among other things that the Act, violated the thorough and efficient education clause of the State Constitution. Id. at 277-78. The Supreme Court held that the plaintiffs were required to exhaust their administrative remedies before the action was heard by the courts. Id. at 296-303. The Court noted that as a general matter, "administrative remedies should be fully explored before judicial action is sanctioned." Id. at 296 (quoting Garrow v. Elizabeth General Hospital and Dispensary, 79 N.J. 549, 558 (1979)).

The exhaustion requirement is not, however, an "indispensable pre-condition" to judicial action. Id. at 297 (quoting Swede v. City of Clifton, 22 N.J. 303, 315 (1956)). Exhaustion serves several important interests. It permits claims to be heard in the first instance by an agency possessing expertise in the area, allows for the development of a full factual record, and the agency's decision may obviate the need for resort to the courts. Id. at 297-98 (citing City of Atlantic City v. Laezza, 80 N.J. 255, 265 (1979)). However, exhaustion is not required where only a question of law is involved, administrative remedies would be futile, irreparable harm may result or the public interest requires a prompt judicial decision. Id. at 298 (citing Garrow, supra, 79 N.J. at 561).

We are convinced that Judge Bariso correctly determined that plaintiffs must exhaust their administrative remedies before the courts will consider their constitutional challenge to Weehawken's zoning regulations. In this action, plaintiffs contend that the zoning restrictions deprive them of any reasonable use of their property and the restrictions effect a taking of their property for public use without just compensation. We recognize that properties in the B-2 district and the Steep Slope District are subject to significant restrictions. Even so, it is premature to address the claim that plaintiffs have been unconstitutionally deprived of any reasonable use of their property where, as here, neither they nor any prospective purchaser has presented a development plan to the zoning board or sought variance relief from the applicable zoning restrictions.

We reject plaintiffs' assertion that this case merely presents a question of law for which exhaustion of administrative remedies is not required. Although plaintiffs insist that they are challenging the relevant provisions of the ordinances on their face, it is clear that their primary concern is the application of the zoning restrictions to their particular properties. As to such a claim, it is clear that exhaustion is appropriate so that it can first be determined whether, in fact, the zoning restrictions will be applied. Exhaustion of administrative remedies would be required even if plaintiffs' challenge is considered to be a facial challenge to the zoning restrictions because a court "should not reach a constitutional question unless its resolution is imperative to the disposition of litigation." Randolph Town Ctr., L.P. v. County of Morris, 186 N.J. 78, 80 (2006).

Moreover, exhaustion of administrative remedies is particularly appropriate in this matter because it will enable the parties to create a full factual record pertaining to the potential development and use of the site by an agency fully knowledgeable of local conditions and the particular restrictions at hand. Lang v. Zoning Board of Adjustment, 160 N.J. 41, 58 (1999)(citing Kramer v. Board of Adjustment of Sea Girt, 45 N.J. 268, 296-97 (1965)). A full factual record also will assist the court in addressing the constitutional questions raised by plaintiffs should judicial action ultimately be required. Abbott, supra, 100 N.J. at 299 (citing K. Davis, 4 Administrative Law Treatise, 26:6 at 436 (1983)).

We also reject plaintiffs' assertion that exhaustion of administrative remedies would be futile in these circumstances. Indeed, Weehawken disputes plaintiffs' contention that the zoning scheme fails to offer a realistic possibility for a variance. Weehawken further asserts that plaintiffs have provided no factual support for their assertion that the property falls within the "cliff face," noting that although a topographic survey has not been performed, the record shows that the property is located on the downward slope of the cliff and the regulations permit structures to be built on the slopes. Clearly, Weehawken has not ruled out any development of plaintiff's property.

In support of their contentions that exhaustion of administrative remedies is not required in this case, plaintiffs cite Gardner v. New Jersey Pinelands Comm'n, 227 N.J. Super. 396 (Ch. Div. 1988), aff'd, 235 N.J. Super. 382 (App. Div. 1989), aff'd, 125 N.J. 193 (1991). In that case, exhaustion was deemed to be futile because the affidavits submitted by the regulatory agency made clear that the challenged restriction was central to the policy of preserving farmland in the Pinelands that it would be futile for plaintiff to seek a waiver for a more intensive residential use. Id. at 408-09. In this matter, however, there are no similar affidavits or certifications. Indeed, as we have pointed out, Weehawken has stated in its submissions to the trial court and to this court that it would not be futile for plaintiffs to seek variance relief. In these circumstances, plaintiffs' reliance upon Gardner is misplaced.

Affirmed.

 

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A-5902-04T3

May 15, 2006