DR. LUCIANO D'AMATO v. CITY OF CLIFTON

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2778-07T32778-07T3

DR. LUCIANO D'AMATO and

MICHELLE D'AMATO,

Plaintiffs-Appellants,

v.

CITY OF CLIFTON; CITY OF

CLIFTON ZONING BOARD OF

ADJUSTMENT; CITY OF CLIFTON

BUILDING DEPARTMENT,

Defendants-Respondents.

____________________________

 

Submitted January 26, 2009 Decided

Before Judges Lisa, Sapp-Peterson, and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-4363-03.

Greenberg Traurig, attorneys for appellants (Cory Mitchell Gray, of counsel and on the brief).

Friend & Friend, attorneys for respondents City of Clifton and City of Clifton Building Department (Gerald G. Friend, on the brief).

John D. Pogorelec, attorney for respondent City of Clifton Zoning Board of Adjustment.

PER CURIAM

Plaintiffs Dr. Luciano D'Amato (D'Amato) and his wife, Michelle D'Amato, appeal the Clifton Zoning Board of Adjustment's (Board) denial of a bulk variance, as well as the dismissal by the Law Division judge of their complaint against the Board, defendant City of Clifton, and defendant City of Clifton Building Department. Additionally, for the first time on appeal, plaintiffs argue that a deed restriction that was entered into when the Board issued initial approvals must be stricken. For the reasons that follow, we affirm the trial court.

In January 2002, plaintiffs obtained Board approval for bulk variances for front yard, side yard and rear yard setbacks, and for building lot coverage. Board approvals were contingent upon plaintiffs' execution of a deed restriction limiting use of the structure to a single-family dwelling. On July 23, 2003, the Building Department issued a stop-work order on the basis that a second-floor cantilever incorporated into the new construction encroached on the approved front yard setback of thirteen feet.

Plaintiffs filed this action in lieu of prerogative writs against all defendants on October 3, 2003. The trial judge remanded the matter on June 17, 2004, for the Board to determine whether plaintiffs' original bulk variance authorized construction of the cantilevered second floor with a front yard setback of eleven feet, four inches and, if not, whether the cantilevered second-floor extension should remain. Prior to trial, plaintiff's equitable estoppel and constitutional claims were bifurcated, and the trial judge retained jurisdiction pending the Board's further factfinding.

Throughout the several Board remand hearings, plaintiffs contended that the Board approved a front yard setback of eleven feet, four inches for the second floor. The Board, however, found that plaintiffs did not demonstrate prior approval of the cantilever, and that the second floor structure, in fact, had only a ten-foot front yard setback.

By resolution dated April 20, 2005, the Board determined that the original application did not indicate a setback of less than thirteen feet, that a setback of thirteen feet was to be maintained, and that the applicant had initially represented that he was "just enclosing the porch" that already existed. The Board further concluded that plaintiffs did not demonstrate any basis justifying a variance for a ten-foot setback. Plaintiffs thereafter filed an amended complaint.

In his written opinion dated October 23, 2006, the trial judge found that the Board's actions exceeded the scope of the remand. Noting that plaintiffs mistakenly indicated a front yard setback of thirteen feet on their initial application, he concluded that the practical effect of the Board's insistence that they comply with such a setback would be to require that the foundation of the home be moved. Accordingly, the court reversed the Board to the extent that it rescinded plaintiffs' right to the relief obtained in the 2002 variance. The court affirmed, however, the Board's denial of a bulk variance for the cantilever, as the 2002 resolution had not authorized its construction. Plaintiffs' constitutional and estoppel claims were dismissed after trial in an opinion issued on December 6, 2007. The stay of the stop-work order was vacated, and the court set a schedule for the removal of the cantilever. This appeal followed.

I. THE HISTORY OF THE APPLICATION

Plaintiffs' home is in a two-family residential zone, designated as "R-B1", having a minimum front yard setback of twenty-five feet. Plaintiffs filed a variance application in January 2002 in order to construct a rear addition, deck, front porch enclosure, and second-story addition to the home. During the initial application process, D'Amato testified before the Board that he intended to enclose the front porch and "go straight up." When he testified at the June 5, 2007 trial, he reiterated that he merely enclosed the front porch, constructed an addition over the porch roof, and "went straight up."

No architectural drawings were presented at the January 2002 hearing; instead, D'Amato provided the Board with hand-drawn diagrams. On May 21, 2002, plaintiffs applied for a building permit. On October 8, 2002, they submitted architectural blueprints dated May 6, 2002, which showed a second floor overhang extending past the home's foundation line, to the Building Department. The cantilever, however, was not depicted on the plot plan.

When D'Amato presented the preliminary plans to zoning officer Robert Ringleheim, he was advised that the average front yard setback was about thirteen feet for his block. Plaintiffs did not obtain a survey in connection with their application. Accordingly, plaintiffs' architect included the thirteen-foot measurement suggested by Ringleheim on the final version of the plans, even though the distance was not confirmed.

Another zoning officer approved the plans on October 23, 2002. They were approved on November 4, 2002, by the City construction official, who issued the building permit. As a result, plaintiffs assert that they believed that they had permission to build a twenty-inch overhang over the existing foundation line. The building permit, however, did not mention any overhang.

Construction began in April 2003, after which city officials visited the site on numerous occasions. In fact, plaintiffs initially alleged that the inspections were so numerous and inappropriate as to constitute harassment. The officials informed plaintiffs that their neighbors were making frequent calls and complaints to the Building Inspector's office about the project.

In order to support the second-floor addition, plaintiffs installed a new foundation, which was placed exactly over the footings supporting the original front porch. In late May or early June 2003, beams were erected in preparation for construction of the second-floor cantilever.

On July 23, 2003, the Building Department placed a stop-work order on the front door of plaintiffs' home while D'Amato's father and cousin were finishing the roof on the second floor addition. D'Amato immediately called the Building Department and was told that the second floor jutted out too far over the home's foundation line. When D'Amato referred the Building Inspector to the approved blueprints, he was informed that he would be permitted to at least close up the roof pending resolution of the dispute. Plaintiffs continued work on the cantilevered second-floor addition, knowing that they did so at their own peril.

Plaintiffs allege that many properties in the neighborhood violate building or zoning ordinances, including the home next door. They complain that these various projects were completed without the necessary variances.

Plaintiffs also allege that they have expended between $30,000 and $40,000 in construction costs on the improvements to their home. The cantilevered second story alone cost $6000 to $7000, and it could cost an additional $20,000 to $30,000 to remove the cantilever. D'Amato testified at trial that plaintiffs paid approximately $37,000 for legal work related to the cantilever.

Plaintiffs' neighbors claim that plaintiffs misrepresented the nature of the expansion. For example, an individual living across the street testified that because D'Amato told him that they were only going to "push the living room out onto the front porch" and expand the kitchen in the back, he did not attend the initial hearing as he had no objections to that construction. He denied that anything was said to him about a second-floor expansion. When he saw that the work differed from what plaintiffs had described, he called the Building Department. Other neighbors wrote to the mayor, the Board, and the Building Inspector's Office, complaining about the project. The neighbors retained counsel and attended all Board meetings relating to plaintiffs' property.

At the Board remand hearings, plaintiffs' counsel presented a November 2004 survey depicting the second floor setback at ten feet and the first floor at eleven feet, eight inches. Plaintiffs readily acknowledged that their original application indicating a thirteen foot setback was incorrect, but insisted that the measurement was included at the suggestion of a zoning officer. Plaintiffs contend that had there not been this misunderstanding, their application would have showed the actual existing front setback of eleven feet, eight inches. D'Amato testified at the remand hearings that the final plans prepared by the architect clearly depicted that the second floor would extend over the first floor by twenty inches. Plaintiffs took the position that they were seeking approval of the as-built structure based on the 2002 variance, while their neighbors objected to the size and configuration of the second-floor addition.

Plaintiffs assert the following as grounds for reversal of the trial court's orders:

THE TRIAL COURT ERRED IN FAILING TO

REVERSE THE BOARD'S DENIAL OF THE

APPELLANTS' BULK VARIANCE APPLICATION.

B. THE DEED RESTRICTION PROHIBITING THE

APPELLANTS FROM UTILIZING THEIR HOUSE

AS A TWO-FAMILY HOUSE, WHICH IS A

PERMITTED USE IN THEIR ZONE, MUST BE

STRICKEN.

C. THE TRIAL COURT ERRED IN HOLDING THAT

THE APPELLANTS DID NOT PROVE THEIR

CONSTITUTIONAL CLAIMS.

1. PLAINTIFF'S EQUAL PROTECTION RIGHTS

WERE VIOLATED.

2. APPELLANTS' SUBSTANTIVE DUE PROCESS

RIGHTS WERE VIOLATED.

3. PLAINTIFF'S PROCEDURAL DUE PROCESS

RIGHTS WERE VIOLATED.

D. THE TRIAL COURT ERRED IN HOLDING THAT

THE APPELLANTS DID NOT PROVE THEIR

ESTOPPEL CLAIMS.

II. DENIAL OF THE BULK VARIANCE APPLICATION

The Board's denial of plaintiffs' variance application is to be accorded a presumption of validity, as is all administrative agency action. Kogene Bldg. & Dev. Corp. v. Edison Twp. Bd. of Adjustment, 249 N.J. Super. 445, 449 (App. Div. 1991). Even if we would have come to a different result after evaluating the record, we must affirm if the evidence and the inferences to be drawn therefrom support the Board decision. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587 (2001). In other words, we must affirm the decision if "'the findings made could reasonably have been reached on sufficient credible evidence present in the record, considering the proofs as a whole, with due regard to the opportunity of the one who heard the witnesses to judge of their credibility.'" Hammond v. Monmouth County Sheriff's Dep't, 317 N.J. Super. 199, 203 (App. Div. 1999) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)) (internal quotations omitted). We should intervene only where the agency's findings are so clearly mistaken that the interests of justice demand intervention. Campbell, supra, 169 N.J. at 587-88.

Having already constructed the cantilever, plaintiffs sought an N.J.S.A. 40:55D-70(c) variance on the basis that removal of the cantilever would be an undue hardship. To receive a (c)(1) variance, however, "an applicant must first establish that 'exceptional and undue hardship' will result if the variance is not granted (the positive criteria), and that the variance will not result in a substantial detriment to the public good or the zone plan (the negative criteria)." Kogene, supra, 249 N.J. Super. at 449.

Furthermore, "personal hardship is irrelevant to the statutory standard, and . . . the correct focus must be on whether the strict enforcement of the ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property." Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 53 (1999). Personal hardship unrelated to the physical characteristics of the land does not constitute sufficient grounds for a variance under subsection (c). Ibid. (quoting Isko v. Planning Bd. of Livingston, 51 N.J. 162, 174 (1968), abrogated on other grounds, Commercial Realty & Res. Corp. v. First Atl. Properties Co., 122 N.J. 546 (1991)).

Plaintiffs offered no evidence of hardship that would justify a variance for a ten-foot setback. In addition to the asserted hardship being personal to them and unrelated to the physical condition of the property, plaintiffs did not establish that the benefits of deviation from the zoning ordinance requirements outweighed any detriment, as required for a (c)(2) variance. See Lang, supra, 160 N.J. at 56-57. The proposed addition of a cantilevered second floor is not a better zoning alternative that will benefit the community. Ibid.

D'Amato testified at the remand hearings that he needed additional space in his home to accommodate his growing family. The remainder of his testimony focused mainly on his perspective that the majority of homes in his neighborhood do not comply with relevant zoning ordinances.

Plaintiffs' expert witness testified that plaintiffs' home is "in conformity with the near majority of houses within a four-block radius," and that only three of the one-hundred and thirty houses within that radius have front yard setbacks that comply with the City's zoning requirements. He obtained this information from a survey that D'Amato purportedly conducted by measuring each house's setback with a measuring tape. He also testified that the City's 2003 Master Plan emphasized "[t]he need to rehabilitate housing to meet the ever-changing market standards and the recognition that redevelopment is the predominant form of growth."

Plaintiffs' expert opined that granting the variance would advance the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. He concluded that the general welfare would be advanced by the renovation of plaintiffs' home, which "helps property values stabilize." See N.J.S.A. 40:55D-2(a). He also noted that the renovation would provide sufficient space for plaintiffs' expanding family. Overall, plaintiffs' expert established only that the increase in the home's square footage would benefit plaintiffs.

Therefore, plaintiffs have not shown that the Board's decision was "arbitrary, capricious or unreasonable," or that it was "unsupported by 'substantial credible evidence in the record as a whole.'" In re Morrison, 216 N.J. Super. 143, 160 (App. Div. 1987) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980)). They have not demonstrated any undue hardship justifying the issuance of a (c)(1) variance for a ten-foot setback. Plaintiff's contention that they need not satisfy this statutory requirement because the Board granted their original application lacks merit. The Board was unaware of their plan to build the cantilevered second story until construction was well underway. The Board reasonably relied upon plaintiffs' representation that they were simply going to enclose the front porch and build "straight up," which does not describe a cantilever. The Board issued its approval within the context of a thirteen-foot setback, not a ten-foot setback.

Furthermore, as to a (c)(2) variance, plaintiffs' assertion that there was no evidence of substantial detriment must fail. Multiple objectors testified that the renovation impeded their light, air and space, that plaintiffs' home appears oversized for the lot, and that the renovations have changed the character of the neighborhood.

In exercising its "quasi-judicial function," the Board has the choice of accepting or rejecting the testimony of witnesses. Reinauer Realty Corp. v. Nucera, 59 N.J. Super. 189, 201 (App. Div.), certif. denied, 32 N.J. 347 (1960). "Where reasonably made, such choice is conclusive on appeal." Ibid. In this case, the Board reasonably chose to accept the testimony of the objectors. This discretionary decision leads inescapably to the conclusion that the detriments of plaintiffs' application outweighed the benefits.

III. THE DEED RESTRICTION

Plaintiffs now object, for the first time, to the Board's 2002 requirement that they execute a deed restriction limiting the use of their home to a one-family dwelling as a condition of the original approvals. They did not assert a claim for relief regarding this issue in either their October 3, 2003 complaint or their June 15, 2005 amended complaint. No mention is made of this issue in Judge Riva's opinion.

As the court rules provide, appeals may be taken "from final judgments of the Superior Court trial divisions." R. 2:2-3(a)(1). That appeals should be taken only from actual judgments seems self-evident and necessary to the orderly administration of justice. See Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). Plaintiffs seek to have us render an opinion in the abstract, which is improper. See DeBenedictis v. State, 381 N.J. Super. 233, 240 (App. Div. 2005). This argument is without sufficient merit to warrant further comment in a written opinion. R. 2:11-3(e)(1)(E).

IV. THE CONSTITUTIONAL CLAIMS

1. Equal Protection

Plaintiffs contend that they were deprived of their equal protection rights by defendants based on, as the trial court characterized it, a "false premise" that similarly situated applicants were granted the relief that they seek. As the judge said:

First, plaintiffs' classification of similarly situated applicants draws no distinction between those seeking a front yard setback from those seeking rear or side yard setbacks. Second, their classification is not limited to applicants seeking a front yard setback of 13 feet or less. Third, their classification does not include applicants who propose to construct a cantilever. Finally, and most significantly, their classification is not restricted to R-B1 zones, but rather includes all zones.

The trial court diligently compiled the outcome of forty-one applications by property owners located in the R-B1 zone seeking bulk variances between July 1, 2004, and December 31, 2005. Of those forty-one applicants, only five sought a front yard setback of thirteen feet or less, and the closest of the five properties to plaintiffs' home was one-and-a-half driving miles away. Of those five applications, four were approved. No objectors appeared in any of those cases.

In any event, the approval of a variance to one property owner does not create a precedent for a grant of variances to other property owners. William M. Cox, New Jersey Zoning and Land Use Administration, 13-3 at 348 (2009). Each involves unique factors and must be judged accordingly. Ibid.

Plaintiffs' situation differed significantly from other applicants', if only because of the confusion surrounding the 2002 approval, including the actual size of the front yard setback when the application was made and as affected by the cantilevered second story. Plaintiffs failed to establish any pattern in the Board's decisions that would corroborate their claim that they were denied equal protection of the law.

2. Substantive Due Process

Plaintiffs also assert that their substantive due process rights were violated. The Due Process Clause of the Fourteenth Amendment encompasses both a "substantive component that bars certain arbitrary, wrongful government actions" and a "guarantee of fair procedure." Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100, 113-14 (1990). To establish a substantive due process violation, a litigant must prove that the governmental entity acted in a way that infringed a property interest encompassed by the Fourteenth Amendment. Acierno v. Cloutier, 40 F.3d 597, 616 (3d Cir. 1994).

"[A] governmental deprivation that comports with procedural due process may still give rise to a substantive due process claim 'upon allegations that the government deliberately and arbitrarily abused its power.'" Indep. Enters. v. Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1179 (3d Cir. 1997)(quoting Midnight Sessions, Ltd. v. Phila., 945 F.2d 667, 683 (3d Cir. 1991), cert. denied, 503 U.S. 984, 112 S. Ct. 1668, 118 L. Ed. 2d 389 (1992), overruled on other grounds, United Artists Theatre Circuit v. Twp. of Warrington, 316 F.3d 392 (3d Cir. 2003)). When the government's actions were not rationally related to a legitimate governmental interest, or were improperly motivated, a violation of substantive due process is proven. Midnight Sessions, supra, 945 F.2d at 682-83. Therefore, allegations that governmental action was "motivated by bias, bad faith, or improper motive, such as partisan political reasons or personal reasons unrelated to the merits of the plaintiffs' application, may support a finding of substantive due process violation." Ibid.

The United States Supreme Court has emphasized that "only the most egregious official conduct can be said to be 'arbitrary in the constitutional sense.'" County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S. Ct. 1708, 1716, 140 L. Ed. 2d 1043, 1057 (1998) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 129, 112 S. Ct. 1061, 1071, 117 L. Ed. 2d 261, 276 (1992)). To rise to the level of a substantive due process violation, an abuse of power must "shock the conscience." Lewis, supra, 523 U.S. at 846, 118 S. Ct. at 1717, 140 L. Ed. 2d at 1057.

A refusal to grant a variance, such as in this case, does not ordinarily implicate substantive due process. Plemmons v. Blue Chip Ins. Servs., Inc., 387 N.J. Super. 551, 569 (App. Div. 2006). Plaintiffs assert that the "shocks the conscience" test does not apply to this land use dispute. We disagree. A "shocks the conscience" test is applied to all cases where there is a claimed substantive due process violation. See United Artists, supra, 326 F.3d at 401-02 (holding that "shocks the conscience" test applies to substantive due process claims in land-use disputes).

The denial of a variance does not, in the ordinary case, shock the conscience. Plemmons, supra, 387 N.J. Super. at 568-69. The Board's decision was rationally based on the substantial credible evidence presented on the record. Plaintiffs have offered no actual improper motivation other than their own unsubstantiated speculation. The mere allegation that government officials have acted with some improper motive does not transform the dispute into one implicating substantive due process. United Artists, supra, 316 F.3d at 402.

3. Procedural Due Process

"'The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.'" Miller v. City of Phila., 174 F.3d 368, 373 (3d Cir. 1999) (quoting Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18, 32 (1976)) (internal quotations omitted). Plaintiffs argue that the trial court essentially found that "merely affording a 'forum' to present the case was sufficient to satisfy procedural due process requirements." They further assert that the court should have focused on the Board's failure to weigh the evidence and to consider the lack of merit in the objections to their construction. They assert that the Board viewed their application with a "pre-disposition towards denial."

Plaintiffs were heard at the remand hearings, which went on for six-and-a-half hours over the course of four meetings. They did not provide any examples of the Board's purported pre-disposition despite this lengthy record. Instead, they conjecture that the Board must have decided to deny their application before the hearings because plaintiffs commenced legal proceedings.

The Board gave a detailed explanation for its decision both on the record and in the resolutions that it adopted. The Board found that plaintiffs failed to satisfy the requirements set forth in N.J.S.A. 40:55D-70(c)(1) and (2), and that the detriments of the ten-foot setback would outweigh the benefits. The Board was free to accept or reject the testimony presented during the hearings. Reinauer, supra, 59 N.J. Super. at 201. Plaintiffs have therefore failed to establish that the Board violated their procedural due process rights.

V. THE ESTOPPEL CLAIMS

Plaintiffs contend that they proved at trial, contrary to the trial court's ruling, that the City should be estopped from denying their right to retain the second floor cantilever. They stress that the mistaken thirteen-foot setback was supplied to them by a zoning officer, and that they commenced construction in reliance on the Building Department and zoning officer's approval of their architectural plans. They further note that the officials who conducted various inspections on their property did so without comment, even after the cantilever was framed and the roofline extended.

The trial court specifically found, however, that the record did not contain any indication that the City, through any of its officials, misrepresented or concealed any material fact, or that plaintiffs relied to their detriment on any misrepresentation by the City. No official knew that plaintiffs intended to construct a cantilever on the second floor. The permit issued on the mistaken assumption that the information that D'Amato supplied was accurate.

A municipality is not estopped from preventing the completion of work that goes beyond the scope of a permit. Lehen v. Atl. Highlands Zoning Bd. of Adjustment, 252 N.J. Super. 392, 399 (App. Div. 1991). In this case, the work went beyond the scope of the approvals. Neither the 2002 resolution nor the permit authorized construction of a cantilevered fa ade. Additionally, "a building permit issued contrary to a zoning ordinance or building code cannot ground any rights in the applicant." Twp. of Fairfield v. Likanchuk's, Inc., 274 N.J. Super. 320, 332 (App. Div. 1994) (quoting Hilton Acres v. Klein, 35 N.J. 570, 581 (1961)). Thus, "a property owner may not, by unilateral action, 'secure a valid nonconforming use based on a violation of the zoning ordinance.'" Ibid. Estoppel will not arise against the municipality if that is the case. Ibid.

Unless a property owner relied in good faith on municipal approvals, the doctrine of estoppel is inapplicable. Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 47 (App. Div. 2004). Plaintiffs did not advise the Board or their neighbors of their intent to construct the cantilever. They represented that they were going to enclose their front porch and build "straight up" within that footprint. Their original application made no distinction between the first and second floor setbacks. Their permit did not mention the cantilever, and even if it had, plaintiffs were in violation of the relevant zoning ordinance. Thus, plaintiffs have failed to demonstrate that the trial court erred in finding that the City was not estopped from enforcing the stop-work order.

Affirmed.

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A-2778-07T3

June 3, 2009