MORGAN GERALD EARNEST II v. THE TOWNSHIP OF WEEHAWKEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MORGAN GERALD EARNEST, II and

ELIZABETH ANN SALVATORE,

Plaintiffs-Appellants,

v.

THE TOWNSHIP OF WEEHAWKEN,

STEVEN P. WALDMAN and IRENE

WALDMAN,

Defendants-Respondents.

__________________________________

August 26, 2016

Argued August 22, 2016 Decided

Before Judges Reisner and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4206-14.

Stuart Gold argued the cause for appellants (Mandelbaum Salsburg, P.C., attorneys; Mr. Gold, of counsel and on the briefs).

Jack Jay Wind argued the cause for respondents Waldmans (Margulies, Wind, P.C., attorneys; Mr. Wind, on the brief).

Richard P. Venino, Law Director, attorney for respondent Township of Weehawken (Mr. Venino, on the statement in lieu of brief).

PER CURIAM

Plaintiffs Morgan Gerald Earnest, II and Elizabeth Ann Salvatore appeal from a February 26, 2015 order dismissing their complaint in lieu of prerogative writs against defendants, the Township of Weehawken (Township), Steven P. Waldman, and Irene Waldman (collectively, the Waldmans). We affirm substantially for the reasons stated by Judge Jeffrey R. Jablonski in his oral opinion issued on February 20, 2015. We add these comments.

Plaintiffs and the Waldmans are neighbors in an area of Weehawken that is subject to steep slope zoning. The Waldmans bought their house in 2010, and plaintiffs purchased the house next door in 2013. In August 2013, plaintiffs1 complained to the local construction code official that the Waldmans had allegedly constructed a dog run and other improvements in their back yard, in violation of the local zoning ordinance. Later that month, the code official issued an $8000 violation and penalty notice (violation notice) to the Waldmans.

The Waldmans appealed the violation notice to the Hudson County Construction Board of Appeals (Board), asserting that any alterations to the premises predated their purchase of the property. At a publicly-noticed hearing before the Board on December 2, 2013, the code official conceded that there was no dog run on the property, and he had no proof that the Waldmans had made any of the other improvements on the property which were listed in the violation notice. Mr. Waldman also testified that neither he nor his wife had undertaken any of the construction alleged in the violation notice. Because the allegations underlying the violation notice could not be proven, the Board voted to uphold the Waldmans' appeal and dismiss the violation notice.

On August 13, 2014, the Waldmans and the Township entered into a "Stipulation and Consent" (stipulation) under the same Board docket number (Case No. 13-29). In the agreement, the Township acknowledged that it could not prove the case it had filed against the Waldmans, and the Waldmans agreed that if they decided to have any construction work done on the property in the future, they would obtain the necessary permits before commencing construction. The record does not reflect that the Board approved the stipulation or that it was filed with the Board.

A certification from the Waldmans' attorney, filed in the prerogative writs action, attested that the stipulation was separate from the appeal of the violation notice and was "simply a statement that Dr. Waldman will do what is required of every Weehawken citizen before undertaking" any future changes to the property. The Waldmans also filed a certification from the local code official, attesting that the stipulation was intended to protect plaintiffs' rights and "to avoid issues" between the two sets of neighbors in the future.

Believing that either the dismissal of the violation notice or the stipulation had somehow conferred a variance or other land use approval on the existing premises, as opposed to simply exonerating the Waldmans from the violation notice and confirming their future commitment to comply with the local zoning, plaintiffs filed this lawsuit on September 23, 2014. They asked the court to void the stipulation entered into before the Board, and order the Waldmans to submit the proposed settlement to the Planning Board for approval. In his cogent oral opinion, Judge Jablonski found no merit in the lawsuit and dismissed it.

On this appeal, plaintiffs argue as follows

UNDER THE "WHISPERING WOODS" DOCTRINE THE RESPONDENTS MAY NOT USE A TWO PARTY SETTLEMENT TO CIRCUMVENT THE WEEKHAWKEN STEEP SLOPE ORDINANCE OR TO LEGITIMIZE AN ILLEGAL USE WITHOUT GIVING PARTIES IN INTEREST, SUCH AS APPELLANTS, THE OPPORTUNITY TO BE HEARD.

Our review of the trial court's decision is de novo. See Kaur v. Assured Lending Corp., 405 N.J. Super. 468, 474 (App. Div. 2009). On this record, we agree with Judge Jablonski that plaintiffs' reliance on Whispering Woods at Bamm Hollow v. Township of Middletown Planning Board, 220 N.J. Super. 161, 172-73 (Law Div. 1987), is misplaced. The proceedings before the Board did not involve a variance or other land use application, and the Board did not issue any land use approvals. The Board dismissed the violation notice in December 2013, due to lack of evidence that there was a dog run on the premises and lack of evidence that the Waldmans had constructed the other improvements cited in the notice. Neither that Board action nor the August 2014 stipulation between the Township and the Waldmans constituted a land use approval.

Affirmed.

1 The trial court assumed that plaintiffs made the complaint. At oral argument of this appeal, plaintiffs' counsel confirmed that the complaint came from his clients.