LAUREN O'HARA v. MICHELE J. BERNICH

(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NOT FOR PUBLICATION WITHOUT THE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-2916-07T22916-07T2

LAUREN O'HARA and THOMAS R.

O'HARA,

Plaintiffs-Appellants/

Cross-Respondents,

v.

MICHELE J. BERNICH and MARY

TANGOLICS, CONSTRUCTION

OFFICIAL OF THE BOROUGH OF

MONMOUTH BEACH,

Defendants-Respondents,

and

MONMOUTH BEACH-SEACREST,

L.L.C.,

Defendant-Respondent/

Cross-Appellant.

______________________________

 

Argued May 4, 2009 Decided

Before Judges Lisa and Alvarez.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-4370-07.

Gary E. Fox argued the cause for appellants/cross-respondents Lauren O'Hara and Thomas R. O'Hara (Fox & Melofchik, L.L.C., attorneys; Mr. Fox, on the brief).

Dennis A. Collins argued the cause for respondents Michele J. Bernich and Mary Tangolics (Collins, Vella & Casello, L.L.C., attorneys; Mr. Collins, of counsel; Matthew K. Kalwinsky, on the brief).

Hussam Chater argued the cause for respondent/cross appellant Monmouth Beach-Seacrest, L.L.C. (Ansell Zaro Grimm & Aaron, attorneys; James G. Aaron, of counsel; Mr. Chater, on the brief).

PER CURIAM

Plaintiffs Lauren O'Hara (Lauren) and her father, Thomas R. O'Hara, appeal a January 8, 2008 order dismissing their action in lieu of prerogative writs with prejudice and granting summary judgment to defendant Monmouth Beach-Seacrest, L.L.C. (MBS). We affirm.

MBS owns real property on Seacrest Road in the Borough of Monmouth Beach, which it subdivided into three lots, 47.05, 47.06, and 47.07, on December 19, 2006. Plaintiffs' counsel reviewed the preliminary subdivision plan, which was not an actual architectural rendering, before submission to the Zoning Board, pursuant to an earlier settlement agreement between plaintiffs and MBS related to this development. A notation on that plan indicated that the front yard setback of the new structures to be erected on lots 47.05 and 47.06 would be 25.4 feet. Prior to construction, MBS demolished an existing structure on the property. As a result, the necessary front yard setback was calculated by the municipality based on the average setback of the homes on the block within 200 feet of the property in question namely, Lauren's home, 1 Seacrest Road, which has a front yard setback of 25.4 feet.

On March 17, 2007, MBS's contractor applied for a zoning permit to construct the proposed single-family home on lot 47.05, also known as 9 Seacrest Road. Zoning Officer Mary Tangolics issued the permit on March 25, 2007. Excavation began after MBS obtained a footing permit on May 21, 2007. When Lauren saw the activity at the site, she went to the Borough municipal offices and was shown the plans that MBS had submitted with its zoning application.

On June 4, 2007, Lauren left a voicemail message for Michele Bernich, who had replaced Tangolics as zoning officer, regarding whether the front yard setback was correct. On June 13, Lauren spoke with Bernich and was advised that Bernich would have to do some research, as she was not the zoning officer who approved the permit. That same day, the Borough construction code official issued a building permit to MBS, and actual construction of the residence began at 9 Seacrest Road. On June 18, Lauren and two other residents sent a letter to Bernich, expressing their view that the average setback of homes on the block was substantially greater when properties other than Lauren's were included in the calculation, such as one located within 200 feet, but on the corner of the block, facing a cross street.

Bernich responded on June 27, 2007, affirming that the approved front yard setback was correct. The letter explained that the tax map established that there were two properties with buildings within 200 feet of 9 Seacrest Road: 1 Seacrest Road and 5 Seacrest Road. The latter had been demolished by MBS. The letter confirmed that only Lauren's home had been used to calculate the setback and informed her that she could appeal the determination within twenty days to the Zoning Board. Bernich included a copy of the March 25, 2007 zoning permit. She had changed the permit date, as a result of a clerical error, from April 25 to March 25.

Plaintiffs' counsel sent a letter to the Zoning Board dated July 13, 2007, appealing the determination. On August 6, 2007, the Zoning Board responded that it would not hear plaintiffs' appeal due to its untimely filing beyond the twenty days permitted by N.J.S.A. 40:55D-72. The Zoning Board considered the appeal a challenge of the March 25, 2007 permit and therefore well out of time. At a September 25, 2007 hearing, the Zoning Board dismissed plaintiffs' appeal in its entirety because it was raised beyond the statutory period.

On September 10, 2007, plaintiffs filed an action in lieu of prerogative writs. They sought a judgment: (1) declaring that the zoning officers' determinations were improper, (2) declaring that the front yard setback violated the zoning ordinance, (3) determining the appropriate setback, (4) vacating the construction permit, and (5) directing MBS to tear down any illegal structure.

MBS filed a notice of motion for summary judgment on November 9, 2007, which was followed by Bernich and Tangolics' application for summary judgment. By order dated January 8, 2008, the court granted the motions for summary judgment and dismissed plaintiffs' complaint with prejudice. A final written opinion was issued on January 17, 2008. Plaintiffs' notice of appeal followed. MBS filed a conditional cross-appeal limited to the court's failure to rule on municipal estoppel, MBS's alternative ground for dismissal.

We first turn to the familiar standard of review. Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the 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." R. 4:46-2(c).

When reviewing an application for summary judgment, the trial court must decide whether "the competent evidential materials presented, . . . 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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Therefore, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' . . . the trial court should not hesitate to grant summary judgment." Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). An appellate court applies the same standard as the trial court when reviewing an award 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).

In issuing the summary judgment, the motion judge relied on N.J.S.A. 40:55D-72(a), which provides:

Appeals to the board of adjustment may be taken by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance or official map. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal. The officer from whom the appeal is taken shall immediately transmit to the board all the papers constituting the record upon which the action appealed from was taken.

The twenty-day time limit on such appeals "runs from the date an interested party knows or should know of the action of an administrative officer." Sitkowski v. Zoning Bd. of Adjustment, 238 N.J. Super. 255, 260 (App. Div. 1990). The purpose of the time limit is to "insulate the recipient of a building permit or other favorable disposition from the threat of unrestrained future challenge. It was intended to provide a degree of assurance that the recipient could rely on the decision of the administrative officer." Ibid.

The motion judge noted that in Lauren's June 18, 2007 letter to Bernich, she referenced her June 4 phone call to the zoning officer to discuss the setback calculation and mentioned that permits were issued for 9 Seacrest Road on May 21, 2007. In an e-mail dated June 21, 2007, Lauren again acknowledged that building and zoning permits had already been issued. The judge concluded that because plaintiffs knew of the issuance of the permits on these dates, their appeal to the Zoning Board was untimely. The motion judge further found that the court lacked jurisdiction to hear the matter due to plaintiffs' failure to appear before the Zoning Board and to create a record that could be reviewed. Because he concluded that he lacked jurisdiction to hear the matter, he did not reach the issue of municipal estoppel.

Plaintiffs contend that the motion court should have reviewed the matter on a de novo basis. See Toll Bros., Inc. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002). In their view, the court had sufficient evidence to correctly determine the meaning and intent of the front yard setback ordinance and then apply it to 9 Seacrest Road.

Plaintiffs further assert that as the non-moving party, they were entitled to have all of the facts and inferences viewed in their favor on the motion for summary judgment. Brill, supra, 142 N.J. at 540. Therefore, they contend that the court should have found that Lauren was unaware of the permit until a copy was forwarded by Bernich on June 27, 2007. They also claim that discovery should have been completed, including depositions of the zoning officers, due to the confusion regarding the date of issuance of the zoning permit.

MBS counters that Sitkowski, supra, 238 N.J. Super. 255, is directly on point with this case. In Sitkowski, the Zoning Board of Adjustment of the Borough of Lavallette determined that the plaintiff's house, which was under construction, was in violation of the local zoning ordinance. Id. at 256. The trial judge found that because the plaintiff's neighbor had not appealed to the Zoning Board from the issuance of the building permit within the twenty-day period required by N.J.S.A. 40:55D-72, the Zoning Board had improperly entertained jurisdiction over the dispute. Id. at 256-57.

We affirmed, agreeing with the plaintiff that the proceedings before the Zoning Board constituted an appeal from an administrative officer's decision, which must be brought within twenty days. Id. at 257. We did not agree with the Zoning Board that "its decision constituted a mere interpretation of the zoning code at the request of an interested party pursuant to N.J.S.A. 40:55D-70(b), for which the Municipal Land Use Law does not prescribe a time restriction." Ibid. "To permit an interested party to challenge the issuance of a building permit by denominating his appeal as a request for an interpretation would render nugatory the time constraint provided by N.J.S.A. 40:55D-72(a)." Id. at 260. Furthermore:

The mere fact that resolution of the issue raised by the appeal required an interpretation of the zoning ordinance did not serve to obviate the statutory time constraint for appeal relief imposed by our Legislature. Since the Board lacked the authority to grant the relief sought by [plaintiff's neighbor], his appeal should have been denied. The Law Division judge correctly set aside the action of the Board.

[Id. at 263.]

Plaintiff counters that this reading of Sitkowski distorts

the true meaning of the opinion. Certainly, the opinion allows for exceptions to strict application of the twenty-day requirement, but this case does not fall within any of them. See id. at 261 ("Our decisions have long recognized the general rule that an individual may obtain an equitable restraint against violation of a zoning ordinance where he has 'sustained special damages over and above the public injury.'")

MBS contends that because, at the latest, plaintiffs knew of the issuance of the permit on June 4, 2007, they were obligated, pursuant to N.J.S.A. 40:55D-72(a), to file their appeal with the Zoning Board no later than June 24, 2007. They did not file their appeal, however, until July 13, 2007. Even if the twenty-day period is calculated from Lauren's June 18, 2007 letter to Bernich, in which she openly discussed the zoning officer's approval of the 25.4 foot front yard setback, plaintiffs still filed their appeal beyond the statutory deadline.

MBS also argues that plaintiffs were on constructive notice of the zoning permit in May 2007, when construction on the structure's foundation began. They further assert that plaintiffs had constructive notice of MBS's intent to develop Lot 47.05 at a front yard setback of 25.4 feet as early as September 2006, when their attorney reviewed and approved the plans that MBS was going to submit with its subdivision application.

MBS further contends that plaintiffs' request for discovery prior to disposition was properly denied. MBS's position is that the only issue material to the summary judgment motions, the question of when plaintiffs knew or should have known of the issuance of the zoning permit, was established by plaintiffs' own admissions. Discovery was therefore unnecessary.

For purposes of summary judgment, "[i]f 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." Brill, supra, 142 N.J. at 540. "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." R. 4:46-2(c).

In this case, there was no genuine factual dispute. In her June 18, 2007 letter to Bernich, Lauren said, "It had come to our attention that on May 21, 2007, zoning permits were issued for 9 Seacrest Road." She added, "When plans were reviewed by neighbors, there was some concern as to how the frontage of 25.4 [feet] was determined to be used for the building given the ordinance." That she had knowledge of the front yard setback by June 18 cannot be disputed. Accordingly, plaintiffs' July 13 appeal to the Zoning Board was untimely. Nothing learned in discovery could alter that reality.

Furthermore, as noted in Sitkowski, supra, 238 N.J. Super. at 261, even where a permit is "irregular" or "utterly void," an attack by way of an action in lieu of prerogative writs must be made within the forty-five-day limit set forth in Rule 4:69-6(a). Thus, even if plaintiffs were entitled to file an action in lieu of prerogative writs challenging the issuance of the zoning permit, despite their failure to exhaust their administrative remedies and appeal to the Zoning Board within the requisite twenty days, the action would be nonetheless time-barred. Rule 4:69-6(a) states: "No action in lieu of prerogative writs shall be commenced later than forty-five days after the accrual of the right to the review, hearing or relief claimed." Where the issuance of a building permit is the action being challenged, the courts have held that the plaintiff's "knowledge must be a consideration in applying the [forty-five-day] rule." Trenkamp v. Burlington, 170 N.J. Super. 251, 265 (Law Div. 1979). "[T]he court must balance the equities of the case . . . and in no circumstance enlarge the time period . . . beyond [forty-five] days from the time at which plaintiff knew or should have known of the cause of action." Ibid.

As discussed above, plaintiffs knew of the issuance of the permit as of June 18, 2007, at the latest. Their September 10, 2007 complaint was therefore filed beyond the forty-five-day limit. While Rule 4:69-6(c) provides for enlargement of the time period for filing an action "where it is manifest that the interest of justice so requires," that exception is not warranted in this case. The Supreme Court has enumerated "three general categories of cases that qualify for the 'interest of justice' exception: 'cases involving (1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification.'" Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 169 N.J. 135, 152 (2001) (quoting Brunetti v. Borough of New Milford, 68 N.J. 576, 586 (1975)). This proceeding does not fit within any of these categories.

Because in our view, Rule 4:69-6(c) barred the filing of this action in lieu of prerogative writs, we need not reach the additional arguments made by plaintiffs. In light of this conclusion, we do not reach MBS's cross-appeal either.

Affirmed.

 

A subsequent survey revealed that 1 Seacrest Road actually had a front yard setback of 25.8 feet. Because Lauren had previously indicated in letters to city officials that her setback was 25.4 feet, that was considered the controlling dimension.

(continued)

(continued)

14

A-2916-07T2

June 16, 2009