JAMES P. MacELREE v. TOWNSHIP OF MIDDLE ZONING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3348-06T23348-06T2

JAMES P. MacELREE and

JOHN DRIMAK, JR.,

Plaintiffs-Appellants,

and

HAROLD C. WRIGHT, JR.,

Plaintiff,

v.

TOWNSHIP OF MIDDLE ZONING BOARD,

TOWNSHIP OF MIDDLE ZONING OFFICER,

TOWNSHIP OF MIDDLE SEWER OFFICER,

TOWNSHIP OF MIDDLE CONSTRUCTION

OFFICER, NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION LAND USE

REGULATION, NEW JERSEY DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

BUREAU OF TIDELANDS MANAGEMENT,

TIDELANDS COMMISSION, and ISLAND

BAY, LLC,

Defendants-Respondents.

_______________________________________

 

Argued April 8, 2008 - Decided

Before Judges Skillman, Yannotti and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-289-05.

Stuart J. Lieberman argued the cause for appellants (Lieberman & Blecher, attorneys; Mr. Lieberman, of counsel; Andrew J. Chamberlain, on the brief).

Victoria A. Steffen argued the cause for respondent Township of Middle Zoning Board of Adjustment.

James H. Pickering, Jr. argued the cause for respondents Township of Middle Zoning Officer, Sewer Officer and Construction Officer.

Richard M. Hluchan argued the cause for respondent Island Bay (Ballard Spahr Andrews & Ingersoll, attorneys; Mr. Hluchan, of counsel; Robert S. Baranowski, Jr., on the brief).

Anne Milgram, Attorney General, attorney for respondent Department of Environmental Protection, filed a statement in lieu of brief (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa G. Daglis, Deputy Attorney General, on the statement).

PER CURIAM

Defendant Island Bay owns eleven residential lots on Seabreeze Lane, which is located in the Avalon Manor section of Middle Township in Cape May County. These lots are the remaining undeveloped portion of a larger subdivision known as Sterback Harbor.

In 1976, the DEP issued a letter acknowledging that the Avalon Manor development project "was in the state of 'on-site construction including site preparation' on the effective date of the [Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21]." Therefore, the DEP concluded that the development was "exempt from the provisions of the Act, and a CAFRA permit will not be required[.]" The DEP has subsequently granted a series of extensions of the CAFRA exemption for this development.

On October 22, 1981, defendant Middle Township Planning Board approved an updated preliminary plat of the Avalon Manor area, and on December 17, 1986, the Board granted final major subdivision approval "for single family homes contingent upon public water and sewer being available[.]" The Board approved the final plat on February 25, 1988, and it was filed on March 14, 1988.

On July 27, 1989, the DEP issued CAFRA Permit No. 88-1016-5, which authorized construction of a sewer line in Avalon Manor, subject to certain conditions. The sewer system was ultimately constructed, and all existing and subsequently constructed homes within Avalon Manor have been tied into the system.

On December 3, 1991, Island Bay purchased the remaining undeveloped lots in the subdivision. Between 1998 and 2005, Island Bay constructed twenty-five homes in the subdivision. However, there are eleven remaining lots on Seabreeze Lane on which there has been no construction.

On July 9, 2003, the DEP sent a letter to Island Bay which stated that Island Bay's construction of single family houses in Avalon Manor continues to be exempt from CAFRA for an additional five years, through December 28, 2008, and that the houses Island Bay proposed to construct on the eleven remaining lots could be connected to the sewer system. However, the DEP conditioned its recognition of Island Bay's continuing exemption from CAFRA upon Island Bay constructing no more than seven houses, rather than the eleven houses it had originally planned to construct.

Subsequently, Island Bay applied to Middle Township for zoning permits for the construction of six houses on nine of the remaining lots. The defendant Middle Township zoning officer issued the permits in November 2004 and December 2004. Thereafter, the owners of properties in the vicinity of the Island Bay lots appealed the issuance of those permits to the defendant Middle Township Zoning Board of Adjustment. After an evidentiary hearing, the Board affirmed the Zoning Officer's decision.

On June 6, 2005, three of the property owners brought this action, which they entitled "Complaint In Lieu of Prerogative Writ and Writs of Mandamus, Environmental Rights Action, Enforcement of Deed Restrictions," challenging not only the Zoning Board's affirmance of the Zoning Officer's issuance of zoning permits for construction of six houses but also various past actions by State and municipal officials relating to the Island Bay development. Because many of the actions challenged in plaintiffs' complaint were actions of State administrative agencies and officers, the trial court transferred the case to this court.

Island Bay filed a motion to dismiss the appeal on the grounds that plaintiffs' challenges to the actions of State administrative agencies and officers were untimely and that their claims were barred by a September 4, 2002 consent order resolving prior litigation brought by plaintiffs relating to the Island Bay development. On February 21, 2006, we granted Island Bay's motion and dismissed the appeal as untimely.

Plaintiffs filed a motion for reconsideration in which they argued, among other things, that the part of their complaint that challenged the Zoning Board's affirmance of the Zoning Officer's issuance of zoning permits for the six houses had not been untimely. On April 7, 2006, we granted plaintiffs' motion and entered an order which stated in pertinent part:

The court's dismissal as untimely of appellant's challenge to the DEP's final action of July 9, 2003 is reaffirmed. Appellant's claims that are not dependent upon the validity of the DEP's final action are transferred back to the Law Division.

Judge Armstrong, sitting in the Law Division, subsequently issued a comprehensive written decision rejecting plaintiffs' challenges to the Zoning Board's final decision, and on December 19, 2006, she entered final judgment dismissing plaintiffs' complaint. Plaintiffs filed a motion for reconsideration, which was denied.

On appeal, plaintiffs present the following arguments:

I. THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE 1,000 SQUARE FOOT FOOTPRINT DEED RESTRICTIONS ARE BEING VIOLATED AND PLAINTIFFS ARE ENTITLED TO A REMEDY.

II. THE TRIAL COURT ERRED BY FAILING TO ENFORCE THE 1994 BOUNDARY LINE AGREEMENT, WHICH RENDERED PARCELS 1. 29 THROUGH 1.36 UNDERSIZED, AND PROVIDED UPON "EROSION THE BOUNDARY LINE SHALL MOVE LANDWARD."

III. THE TRIAL COURT ERRED IN FAILING TO FIND THAT MIDDLE TOWNSHIP SEWER DISTRICT RESOLUTION #10-89, WHICH PROHIBITS SEWER LINE HOOK-UPS FOR PROPOSED CONSTRUCTION WITHIN 50 FEET OF WETLANDS, IS INDEPENDENTLY ENFORCEABLE AND MUST BE ENFORCED.

IV. THE TRIAL COURT ERRED IN FINDING THAT THE PRIOR FRAUD ACTION ORDERS RESOLVED ALL ISSUES UNRELATED TO THE ZONING BOARD'S DECISION, WHEN THERE WAS NO IDENTITY OF ISSUES, PARTIES AND NO FINAL JUDGMENT ON THE MERITS.

V. THE TRIAL COURT ERRED IN FINDING THAT SUBDIVISION ISSUES WERE PREVIOUSLY LITIGATED IN AN ACTION AGAINST THE DEP, WHEN THERE WAS NO IDENTITY OF ISSUES, PARTIES AND NO FINAL JUDGMENT ON THE MERITS.

VI. THE TRIAL COURT ERRED IN FINDING THAT THE TOWNSHIP OF MIDDLE ZONING BOARD ACTED REASONABLY IN AFFIRMING ZONING PERMITS FOR THE SUBJECT PROPERTY IN THE FACE OF UNDISPUTED AND UNCONTROVERTED EVIDENCE TO THE CONTRARY.

A. The trial court erred by failing to apply a de novo standard of review.

B. Only the 1994 boundary line agreement establishes the rear property boundary line.

C. In 2002 lots 1.29 through 1.36 were undersized, the lines were relocated and a new subdivision was required.

D. The 2004 Cubberley letter did not set the boundary line and the rear line location was never field verified by the DEP.

E. The property has a history of erosion moving the line landward.

F. The 2004 Cubberley letter was withdrawn and could not be relied upon.

G. New Jersey's riparian claims prevented the parcels from being large enough to be legal lots.

H. These parcels are subject to ongoing erosion that changes the property line and will endanger property and the environment contrary to the defined purpose of the MLUL.

I. The parcels are not sewerable under Middle Township Sewer Resolution 10-89.

VII. THE TRIAL COURT ERRED IN DETERMINING THAT THE JULY 9, 2003 DEP LETTER ELIMINATES THE REQUIREMENT TO OBTAIN A CURRENT LOI OF THE BOUNDARY LINE AND THE WETLANDS LINE.

VIII. THE TRIAL COURT ERRED IN FAILING TO FIND THAT THERE WERE NUMEROUS FATAL SUBDIVISION AND MLUL DEFECTS.

IX. THE TRIAL COURT ERRED BY FAILING TO CONSIDER EVIDENCE PRESENTED BY PLAINTIFFS, WHICH INCLUDED EVIDENCE OF ENCROACHMENT INTO WETLANDS AND SETBACK AREAS, CONTINUING EROSION, AND LANDWARD MOVEMENT OF PROPERTY AND WETLANDS LINES.

X. THE TRIAL COURT ERRED IN FAILING TO GRANT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT.

We reject these arguments substantially for the reasons set forth in Judge Armstrong's written decision. We add the following supplemental comments.

Plaintiffs' argument under Point I of their brief is based upon the consent order of dismissal, entered on September 4, 2002, of the prior action plaintiffs brought against Island Bay. The pertinent section of the order, which required Island Bay to record deed restrictions on the subject lots, provided that:

[A]ny structure erected on the premises must have a minimum of a one thousand (1,000) square foot footprint upon which the structure is to be erected, with the exception of lots 1.30 and 1.31 which shall have a minimum 800 square foot footprint upon which a structure is to be erected.

The consent order further provided: "These restrictions shall also apply to any of the referenced lots or parcels which may be created by lot consolidation."

Island Bay has not violated the deed restrictions imposed under the 2002 consent order because those restrictions only apply to the "erection" of a structure on the subject lots and Island Bay has not yet "erected" any structures. Moreover, although Island Bay submitted "plot plans" to the Zoning Officer in connection with its application for the six zoning permits, it is impossible to determine from the face of those plans whether the structures Island Bay proposes to construct will violate the deed restrictions. Consequently, there is no evidence in the record to support plaintiffs' claim regarding the deed restrictions. If Island Bay were to submit a building plan that showed an intent to erect a structure that violated those restrictions or if it actually erected a nonconforming structure, any party to the action in which the 2002 consent order was entered or other property owner in the vicinity could move for enforcement of the deed restrictions at that time.

Plaintiffs argue under Point II of their brief that as a result of the "1994 Boundary Line Agreement" between the State and Island Bay, which established the mean high water line that determines the boundary between public riparian land and private upland, eight of the remaining undeveloped lots owned by Island Bay no longer contain the 5,000 square feet required for construction of a house under the Middle Township zoning ordinance. However, Island Bay does not propose to construct homes on any of those eight individual lots. Instead, it proposes, and the Zoning Officer and Zoning Board have approved, the combination of those eight nonconforming lots into four conforming lots. Plaintiffs argue that such a merger can only be accomplished by an application for approval of a "resubdivision." It is unclear whether this argument was ever presented to the Board or the trial court, and plaintiffs have not cited any authority to support this point.

In any event, N.J.S.A. 40:55D-7 provides, in the definition of "subdivision," that "if no new streets are created" a "consolidation of existing lots by deed or other recorded instrument" shall not be considered a subdivision. Island Bay's proposed plain for development of its remaining eleven lots does not envision the creation of any new streets, and we assume that title to each of the four combined, conforming lots will be conveyed by deed after houses are constructed. See also Jock v. Zoning Bd. of Adjustment of Twp. of Wall, 184 N.J. 562, 583 (2005) (noting rule that "once a lot has been created by a planning board pursuant to subdivision approval, it is exempt from the merger doctrine").

Moreover, we agree with the trial court that the Zoning Officer did not abuse his discretion in accepting the current delineation of the mean high water line in the September 2004 Martinelli feasibility plan and the October 2004 Cubberley survey in connection with the issuance of the zoning permits to Island Bay.

Plaintiffs' argument under Point III is based on Resolution No. 10-89 adopted in 1989 by the Board of Commissioners of Middle Township Sewerage District No. 3, which prohibits issuance of "any sewer line connection Permit or hook-up Permit for any parcel for proposed construction in the wetlands or 50 foot inland from the wetlands[.]" Plaintiffs contend that the sewer line hook-up to Island Bay's proposed seven houses on Seabreeze Lane authorized by the DEP's July 9, 2003 ruling violates this resolution.

The Freshwater Wetland Protection Act (FWPA) is the exclusive authority for regulation of freshwater wetlands in New Jersey. N.J.S.A. 13:9B-30; see East Cape May Assocs. v. State, Dep't of Envtl. Prot., 343 N.J. Super. 110, 135-37 (App. Div.), certif. denied, 170 N.J. 211 (2001); In re Issuance of a Waterfront Dev. Permit, 257 N.J. Super. 524, 529-30 (App. Div. 1992). The FWPA provides that after its effective date, which was July 1, 1988, N.J.S.A. 13:9B-1, "no municipality, county, or political subdivision" could enact "any law, ordinance, or rules or regulations regulating freshwater wetlands" or "requiring a transition area [or buffer] adjacent to a freshwater wetland[.]" N.J.S.A. 13:9B-30. Thus, the FWPA preempts all municipal regulation of wetlands and transition areas. Therefore, the municipal resolution upon which plaintiff relies in Point III is ultra vires and unenforceable.

Plaintiffs suggest the municipal resolution is valid, notwithstanding the FWPA's preemption of municipal regulation of wetlands, because the CAFRA permit under which the development of Avalon Manor was authorized required Middle Township to adopt such a resolution. However, the FWPA provides the exclusive authority under which the DEP may regulate freshwater wetlands and transition areas. See East Cape May Assocs., supra, 343 N.J. Super. at 135-37; N.J. Chapter of Nat'l Assoc. of Indus. & Office Parks v. N.J. Dep't of Envtl. Prot., 241 N.J. Super. 145, 152-53 (App. Div.), certif. denied, 122 N.J. 374 (1990). Consequently, the DEP has no independent authority under CAFRA to regulate such areas. Id. at 154-56.

Furthermore, the preemption by the FWPA of the municipal resolution and the part of the CAFRA permit requiring that resolution was recognized by the DEP's July 9, 2003 ruling authorizing sewer connections to the remaining seven houses that Island Bay plans to construct on Seabreeze Lane. The letter from Island Bay's counsel which led to this ruling stated in pertinent part:

DEP is only authorized to regulate freshwater wetlands (including unmapped coastal wetlands, see N.J.A.C. 7:7A-1.4, definition of "freshwater wetlands") and their adjacent transition areas pursuant to the terms of the Freshwater Wetlands Protection Act. See N.J.S.A. 13:9B-30, which states that "It is the intent of the Legislature that the program established by this act for the regulation of freshwater wetlands constitutes the only program for this regulation in the State. . . .") In NJ Chapter of NAIOP v. DEP, 241 N.J. Super. 145 (App. Div. 1990), certif. denied, 122 N.J. 374 (1991), the court made clear that the Freshwater Wetlands Protection Act is the exclusive means under which DEP may regulate freshwater wetlands and transition areas; thus, DEP has no independent authority under CAFRA to regulate such areas. See also Matter of Waterfront Development Permit, 257 N.J. Super. 524 (App. Div. 1992). Under the Freshwater Wetlands Protection Act, because preliminary subdivision approval for the Dixon tract was granted pursuant to the Municipal Land Use law prior to July 1, 1989, those lots are completely exempt from transition area regulation. N.J.S.A. 13:9B-4(d); Appeal of Adoption of N.J.A.C. 7:7A-1.4, 118 N.J. 552 (1990). Accordingly, the homes located in the area from lot 1.05 through 1.27 [where many of plaintiffs' homes are located] were properly constructed, even though they appear to be located within the 50 foot buffer as set forth on the Kona map.

Similarly, the Island Bay lots at issue here (lots 1.29 through 1.39) must also be allowed to tie into the sewer collection system. . . . DEP's consistent practice has been to allow build out of this CAFRA exempt project, and to attempt at this late date to prohibit construction on the remaining Island Bay lots, where 22 plus homes have already been constructed over the past ten years, would plainly be unfair, inequitable, discriminatory and in violation of fundamental principles of fairness.

Accordingly, we ask you to confirm that lots 1.29 through 1.39 should be permitted to tie into the sewer collection system.

Based on this submission and other arguments advanced by Island Bay, the DEP's July 9, 2003 ruling authorized the hook-up to the sewer system of the seven single-family houses proposed to be constructed on Island Bay's remaining eleven lots and stated that "[n]o further approvals from the NJDEP shall be necessary or required for said construction."

As previously noted, we dismissed as untimely the part of plaintiffs' complaint that challenged the DEP's July 9, 2003 ruling. In addition, we reversed, in an unpublished opinion, the DEP's February 2, 2006 summary rescission of that ruling, which was based on plaintiffs' submission to the DEP of factual material and legal argument. In re Island Bay, LLC, No. A-3163-05 (June 21, 2006).

Plaintiffs' argument under Point VIII of their brief that the 1981 preliminary subdivision approval and 1986 final subdivision approval for the Avalon Manor area are void for lack of public notice and advertising was raised in the sixth amended complaint filed in their prior action against Island Bay. Therefore, the trial court correctly ruled that this claim is barred by the 2002 consent order settling that prior action, which provided in pertinent part:

All other claims asserted or that could have been asserted in this lawsuit . . . are released, waived, barred and dismissed with prejudice in accord with and subject to all the provisions contained in this Order.

Plaintiffs' other arguments do not warrant any discussion in addition to the discussion contained in Judge Armstrong's written decision. R. 2:11-3(e)(1)(E).

 
Affirmed.

Two of the remaining lots were omitted from this application.

Because preliminary subdivision approval for the Sterback Harbor subdivision was granted prior to the effective date of the FWPA, Island Bay's lots were exempt from any transition area regulation under the FWPA. N.J.S.A. 13:9B-4(d); In re Appeal of Adoption of N.J.A.C. 7:7A-1.4, 118 N.J. 552, 554-55 (1990).

(continued)

(continued)

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A-3348-06T2

July 29, 2008