AUGUSTINE RHODES v. THE CITY OF CAPE MAY and THE CITY OF CAPE MAY PLANNING BOARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6473-03T56473-03T5

AUGUSTINE RHODES,

Plaintiff-Respondent,

v.

THE CITY OF CAPE MAY and

THE CITY OF CAPE MAY PLANNING BOARD,

Defendants,

and

CHRISTOPHER R. ROSSER and

JANE D. ROSSER,

Defendants/Intervenors-Appellants.

 
 

Argued September 14, 2005 - Decided

Before Judges Conley, Weissbard and Sapp-Peterson.

On appeal from Superior Court of New Jersey, Law

Division, Cape May County, L-45-04.

Peter L. Masnik argued the cause for appellants

(Kalikman and Masnik, attorneys; Mr. Masnik, on

the brief).

Richard M. Hluchan argued the cause for respondent

(Ballard Spahr Andrews & Ingersoll, attorneys; Mr.

Hluchan of counsel and on the brief).

PER CURIAM

This appeal arises out of a dispute concerning two contiguous lots in the City of Cape May (City) in Cape May County, designated as Block 1095, Lot 4 and Block 1095, Lot 14. The two lots are located on a strip of land bordered by Beach Avenue on one side and Stockton Avenue on the other. Beach Avenue separates the property from the beach. Plaintiff Augustine Rhodes's home, addressed as 1016 Stockton Avenue, is situated on Lot 4. Lot 14, which is a vacant lot, fronts on Beach Avenue and is used as a front lawn by plaintiff, allowing an unobstructed beach view from plaintiff's house. Lot 4 is 4896 square feet, and Lot 14 is 6600 square feet; the lots are back-to-back, each having a street frontage of forty feet.

Lot 4 and Lot 14 had been under common ownership since 1955, when J.H. Fitzgerald Dunning and Frances M. Dunning took ownership of Lot 14 by deed. Lot 4 had been earlier conveyed to the Dunnings in 1953. In 1993, the Trustees of Frances Dunning's estate applied to the City's Planning Board (the Board) for a minor subdivision and for a variance from the City Land Use Ordinance. After a Board hearing on the matter, at which neighbors objected, the application was denied. By deed dated July 20, 1994, plaintiff purchased both lots from Mrs. Dunning's estate.

Although plaintiff maintained that the two lots had never merged, in August 2003, she filed an application with the Board to subdivide the property. Two separate proposals were submitted. The first, which tracked the lot lines as defined by the city tax map, was similar to a plan submitted by the previous owners in 1993 and was, therefore, denied on the grounds of res judicata. The Board considered the second plan, which proposed two equally sized lots, but rejected it as well. A minimum lot area of 6250 square feet is required for a single family detached lot. Although Lot 14 meets this requirement, Lot 4 does not. Additionally, both lots fail to meet the lot width requirement, and Lot 4 fails to meet the side yard requirement on its eastern side.

On January 29, 2004, plaintiff filed a Complaint in Lieu of Prerogative Writs with the Law Division, appealing the Board's decision. In Count I of the complaint, plaintiff requested a declaratory judgment that Lots 4 and 14 had never merged. In Count II, plaintiff alleged that the decision of the Board was arbitrary and capricious and should therefore be overturned.

On February 5, 2004, both the City and the Board were served with the complaint. After receiving an extension of time to answer the complaint, the City informed the court and other parties that it would no longer be participating in the matter. As a result, on March 25, 2004, plaintiff requested that a default be entered against the City. R. 4:43-1. The request was granted on March 26. On March 30, plaintiff filed for a Final Judgment by Default, R. 4:43-2, against the City. On March 31, 2004, Christopher and Jane Rosser, owners of contiguous property at 1018 Stockton Avenue, moved to intervene in the litigation, citing: (1) that disposition of the action would "impair and impede" their ability to protect their interests; (2) that their interest could not be "adequately represented by the existing parties"; (3) that their answer would raise "common questions of fact with those to be raised by the City and Planning Board"; and (4) that their application to intervene was timely and would not "unduly delay or prejudice the adjudication of the rights of the existing parties." That motion was made returnable on April 1, 2004. On April 1, during a case management conference with all parties, the City, according to the trial judge, "confirmed its awareness of and tacit consent to the default theretofore entered against the City."

On April 28, 2004, the Rossers moved to vacate the default entered against the City. R. 4:43-4-3. On June 1, 2004, the judge entertained oral argument. At the outset, the judge noted receipt of a letter, dated May 27, from the City stating that in addition to not having filed an answer, it would not be participating in any proceedings in the matter. Although the Board was represented by counsel at the argument, its attorney observed that in light of the City's default, the Board may have become "irrelevant." Despite plaintiff's argument that the Rossers would have "ample administrative opportunities down the line" to argue their position that plaintiff's lots had not merged, and that the Rossers had "completely divergent interests" from the City, the judge granted intervention stating, in part:

The Rossers are clearly interested parties. They appeared at the Planning Board hearing, both of them, as I recall. I believe Mr. Rosser testified in support of his objection to the application.

. . . .

But I do find that the Rossers are interested parties and they're entitled to be heard, certainly, under the rule, just as they would certainly be entitled to be heard and, in fact, to appear to the extent that an administrative determination had been made by the Zoning Officer below with which they disagreed. They would be entitled to, obviously, to me, intervene if they agreed with an administrative determination below that was appealed by others, including the Plaintiffs.

I'm satisfied that the rule contemplates their participation in this matter.

The judge then turned to plaintiff's request for a final judgment against the City, stating:

I find clearly and unequivocally, the municipality of the City of Cape May has allowed a default to enter against it, on notice to it, and after Mr. Hluchan has demonstrated in this record, stipulated to an extension of time within which to file an answer or otherwise appear.

And, indeed, that the Court has most recently heard from Mr. Catanese of the office of Anthony Monzo, the Municipal Solicitor. That correspondence, May 27th, advising, as I earlier quoted in the commencement of this proceeding, that the city,

"In addition to not filing an answer, will not be participating in briefs, oral arguments, or other proceedings in the above-captioned matter."

Difficult for me to imagine a more clear indication to the Court that the city did not, does not wish to take substantive issue with the factual allegations set forth in Count 1 of the complaint. And I am not able to find that the intervenors have sufficient standing, in this particular case, to oppose entry of judgment by default against the municipality.

The judge's decision was memorialized in an order dated June 10, 2004, which declared that plaintiff's two lots had not merged "but are two, separate, independent lots." The dismissal of Count II of the complaint was reserved pending a later status conference. Subsequently, Count II was dismissed by stipulation. After Notice of Appeal was filed on July 21, 2004, the judge filed a letter opinion pursuant to R. 2:5-1(b) in which he elaborated on his June 1, 2004 oral rulings.

On appeal, the intervenors raise the following issues:

1. Court's June 1, 2004 Order Denies The Intervenor Defendants Right To Defend The Claims Asserted In The First Count Of Plaintiff's Complaint.

2. The Scope Of Review By The Appellate Division Is De Novo, The Burden Of Proof Remains On The Plaintiff And The Findings Of Fact Of The Planning Board Are Entitled To Great Deference.

3. The Plaintiff Has Not Met Her Burden Of Proving That Neither She Nor The Dunnings Ever Treated The Property As A Single Integrated Property.

4. Merger Of The Two Lots Will Result In A Less Non-Conforming Property.

5. Each Case Involving Contiguous Lots Must Be Decided On Its Own Unique Facts, And Lots 4 And 14 Are Not "Back To Back Lots."

6. Plaintiff's Claim Is Barred By The Doctrine Of Collateral Estoppel

In his opinion, the trial judge first expanded upon his decision to permit intervention by the Rossers:

The application for intervention was granted, pursuant to Rule 4:33-1. First, intervenors, as contiguous property owners, assert "an interest related to the property or transaction which is the subject of the action." Chesterbrooke Ltd. v. Planning Board, 237 N.J. Super. 118, 124 (App. Div.), cert. denied, 118 N.J. 234 (1989). Second, they are "so situated that the disposition of the action may as a practical matter impair or impede [their] ability to protect that right." Ibid. Third, they have demonstrated, at least facially, that their interest was not "adequately represented by existing parties." Ibid. Fourth, the application was made "timely." Ibid.

In so concluding, the court noted, yet disagreed with, the argument by plaintiff that taxpayer standing, as to which intervenors must establish that "the court in which the claim or demand is cognizable first determines that the interest of the municipality would be promoted thereby and consents to the bringing of the action," is the only basis for intervention here. Demoura v. City of Newark, 74 N.J. Super. 49, 59-60 (App. Div. 1962). Certainly, intervenors enjoy independent standing through their status as owners of property contiguous to the subject lots; in this regard, intervenors are surely "interested parties." N.J.S.A. 40:55D-4. While the intervenors suggest in their pleadings that their intervention, in a general sense, seeks to advance the public good and therefore the interest of the municipality, they nonetheless acknowledge the inconsistency of that position with the default by the City. They leave undisturbed plaintiff's claim that a public interest presumably advanced by their intervention is less articulable than the aesthetic and financial interests attendant to the preservation of their non-conforming four (4) unit use situate upon a non-conforming lot with ancillary non-conforming off-street parking. While their status as "interested parties" no less entitles them to leave, intervention does not necessarily entitle them to denial of plaintiff's motion for final judgment by default against the City, and vacation of that default, for several reasons.

Intervenors attended, participated in, and objected to plaintiff's application before the Board for minor subdivision and variance relief in November and December 2003. Exhibits B, C. Plaintiff's Response to Motion to Intervene/Vacate (hearing transcript); Chesterbrooke, supra. Entitlement to intervention on the Second Count (in lieu of prerogative writs) is therefore clear. The Allan-Deane Corp. v. Twp. of Bedminster, 63 N.J. 591 (1973); Atlantic Employers v. Tots & Toddlers, 239 N.J. Super. 276 (App. Div.), certif. denied, 122 N.J. 147 (1990); Civil Liberties v. County of Hudson, 352 N.J. Super. 44, 67 (App. Div.), certif. denied, 174 N.J. 191 (2002). Intervention of right on the First Count (seeking declaratory relief as to the City alone) is less certain. Several considerations bear mention.

First, the plaintiff seeks declaratory relief relative to the status of his "back to back" lots. The First Count has joined as a party defendant the only individual or governmental entity in whose repose have been made and maintained all public records relating to lot creation, zoning map adoption, municipal tax assessment, chain of title (including period(s) of common ownership), land use applications, land use approvals, all within the timeline of adoption/revision(s) to the municipal zoning ordinance(s). Intervenors' subjective position(s) on the subdivision and variance criteria - relevant, certainly, to the Second Count claim against the Board - have little, if any, effect upon the quantum and quality of the public record regarding the lots and the relevance of that record to severability or, conversely, merger as can be determined only by the City, shy of this litigation, through its elected officials and their appointed administrative officials (construction official; zoning official; tax assessor; mercantile administrator; etc.). Intervenors, by comparison, have owned their 47 feet by 122.4 feet (5748 square feet) undersized lot containing four (4) rental units since 1986. Exhibit B (p.13, 1.5-7), Plaintiff's Response to Motion to Intervene/Vacate. In this sense, the record does not suggest that intervenors and the City share a common position, nor does this record suggest that intervenors' interests are purely civic.

Second, the divergent positions assumed by the intervenors and defaulted City suggest not that intervenors wish to "stand in the shoes" of the City and thereupon assert its well-measured and articulated position but, to the contrary, assert, from the vantage of the City's shoes, land use authority vested only unto municipalities, N.J.S.A. 40:55D-18, in a manner wholly consistent with their personal economic interests yet inconsistent with any substantive position that the City has assumed to date. [Emphasis added.]

Third, severability of lots held in common ownership is a legal issue decided, as a threshold matter, not by a zoning board of adjustment or planning board, but instead, the zoning official of a municipality and from whose ultimate decision on application for development the right of appeal by an interested party lies, N.J.S.A. 40:55D-70(a), including unhappy neighbors.

The foregoing concerns notwithstanding, intervention was granted on both counts, thereby assuring opportunity to be heard.

[Footnotes omitted.]

Although plaintiff does not explicitly contest this aspect of the judge's determination, she does so indirectly by arguing that the intervenors could not step into the shoes of the City while pressing for an outcome directly opposite that of the City as manifested by its default position. Such was the position of the trial judge as well. In denying intervenor's motion to vacate the default, the judge said, in pertinent part:

Intervenors, through their motion to vacate default against the City, seek procedural relief not on their own behalf as "interested parties," N.J.S.A. 40:55D-4, but, instead, on behalf of a party defendant, duly joined and properly served, which, for reasons assumed by this court to be consistent with its substantive position on severability, elected to neither respond nor otherwise be heard on the declaratory relief sought in the First Count. While willful default and affirmative consent to entry of final judgment by default does not necessarily correspond to affirmative adoption of allegations of fact and accession to conclusions of law contained within plaintiff's complaint and motion, the default and affirmative consent to entry of final judgment by default, as here the case, does accurately memorialize both a municipality's affirmative decision to not be heard in either objection or qualification to the positions thus asserted and its preparedness to ultimately abide by adjudication consistent therewith. Certainly, the three (3) month period of time interceding plaintiff's filing of the motion for final judgment by default (March 29, 2004) and the return date thereon is sufficient time for the City to consider its substantive position on lot severability and determine the relative wisdom in responding to that motion in whatever fashion deemed appropriate. [FN. Equally revealing to this court is the City's silence subsequent to the filing of intervenors' motions.]

As such, this court cannot find that the interests of the City are either identical with or even common to the interest of intervenors within the land use context. Vacation of default by the City, if granted, would predictably result in the attempt by intervenors to impose upon the City substantive positions, both factually and legally, which the City has obviously and quite clearly, on repeated occasions, elected not to assert. Vacation of default would further place the city in the awkward - if not untenable - position of affirmative participation in civil litigation involving matters and issues which its elected officials have determined warrant no affirmative advocacy. The expenditure of public resources and funds consequent to such a process would, in this court's judgment, improperly attribute to a defaulted municipality a position and responsibility that it has determined to avoid. For these reasons, intervenors' motion to vacate default by the City on Count One is denied.

We first address the Rossers status as intervenors. Clearly, the judge was correct in granting their application to intervene on the second count of the complaint, challenging the Board's denial of plaintiff's subdivision application as being arbitrary and capricious. The Rossers, as contiguous property owners, met the criteria for intervention set out in R. 4:33-1, as explained by the judge in his written decision, citing

Chesterbrooke, supra. However, the judge deemed the Rossers' right to intervene on the first count, seeking a declaratory judgment concerning merger, to be "less certain." The judge gave three reasons for his ambivalence. First, that the public records bearing upon the merger were all within the control of the City and the issue could only be determined by the City through its elected and administrative official. Based on this, the judge concluded that the intervenors and the City did not "share a common position" and, further, the intervenors' interests were not "purely civic." The judge's second, and related, observation was that the intervenors could not stand in the shoes of the City and assert a position that the City did not wish to take "in a manner wholly consistent with their personal economic interests." Finally, the judge stated that merger was a legal issue properly decided in the first instance by the zoning official of the municipality, a decision that could be appealed to the Board of Adjustment pursuant to N.J.S.A. 40:55D-70(a).

We are not persuaded that any or all of the reasons operate to deny the Rossers the right to intervene on the declaratory judgment count. While it is true that the Rossers could have appealed a zoning official's determination of non-merger to the Board of Adjustment and, if unsuccessful there, to this court, see Chicalese v. Monroe Twp. Plan. Bd., 334 N.J. Super. 413, 422-24 (Law Div. 2000), no such determination was ever made by the appropriate zoning official. Indeed, the Board ruled, not once but twice, that there was a merger by denying plaintiff's application for a subdivision. Thus, it would seem manifestly unfair to deny the Rossers's intervention because there existed another route to mount their challenge, when that route was closed to them by virtue of there having been no action by the zoning official. The judge's other reasons both related to what he perceived as the apparent conflict between the City and the intervenors. While that conflict may have a bearing on the merits of the dispute, we fail to see how it affects the right of intervention.

In any event, the judge was apparently not fully persuaded by his own "concerns" and granted intervention on both counts in order to assure intervenors the "opportunity to be heard." However, having done so, the judge then took away with one hand what he had given with the other, the right of intervenors "to be heard." Essentially, the judge concluded that the City's default conclusively established sufficient facts to support plaintiff's demand for declaratory relief. We do not quarrel with the judge's decision to deny intervenors' motion to vacate the City's default. We are aware of no authority that would permit one party to assert a position on behalf of another party which that second party did not wish to assert, as manifested by its knowing and purposeful decision to default.

Notwithstanding, the right of intervention would be meaningless if the intervenors could not raise and argue on their own account a position which the City, for any of a myriad of reasons, did not with to advance. Intervention was granted because the intervenors had their own interest in the subject matter of the suit, whether plaintiff's lots were to be considered merged or not. In doing so, intervenors might be motivated by civic concerns or, as the judge said, their purely "personal economic interests." Either way, they have the right to full participation in the proceeding, including the right to present evidence on the merger issue.

The judge erroneously decided that the City's default concluded the issue against intervenors as well as the City itself. The City's default was only binding on the City; it did not bind intervenors nor did it serve to conclusively establish facts that would render intervenors' right to be heard meaningless. The judge should, therefore, not have approached the matter as whether a proof hearing was required for an entry of a final judgment by default. Rather, the matter should have proceeded to a trial on the issue of merger as placed into contention by intervenors' challenge to paragraph eleven of the First Count in which plaintiff asserted that her two lots had never been treated as a single lot but, rather, "as two separate parcels." While acknowledging the factual predicate for intervenors' contrary position, the judge found that those facts did not as a matter of law "render inconceivable the prospect that plaintiff's proofs, when considered 'indulgently,' Morales v. Santiago, [ 217 N.J. Super. 496, 505 (App. Div. 1987)] 'might have been the case.' TransWorld Airlines v. Hughes, [ 449 F.2d 51, 64 (2d Cir. 1971), rev'd on other grounds, 409 U.S. 363, 93 S. Ct. 647, 34 L. Ed. 2d 577 (1973)]." Thus, the judge mistakenly approached the decision as involving a determination whether plaintiff had met the very low standard required for entry of judgment by default. See Heimbach v. Mueller, 229 N.J. Super. 17, 20-25 (App. Div. 1988). That flawed approach led the judge to an erroneous conclusion.

Intervenors are entitled to a full opportunity to contest the merger issue, notwithstanding the City's decision to default. The proofs of record were sufficient to require that the matter proceed in normal course. We express no view on whether or not the lots merged.

 
Reversed.

Of course, primary jurisdiction over a merger issue appears to lie with the zoning board, by way of appeal from a zoning official's determination, and not the planning board. However, as Judge Wolfson explained in Chicalese, supra, 334 N.J. Super. at 424, by seeking relief from a planning board, an applicant implicitly acknowledges the need for a subdivision and thereby waives any right to challenge the planning board's jurisdiction in the Law Division after an enforceable decision from the planning board. In the present appeal, intervenors do not claim that plaintiff waived her right to seek a declaratory judgment on merger by virtue of having submitted the issue to the Planning Board. Even if there were a waiver, plaintiff would still have the right to challenge the Board's action as arbitrary and capricious, as she did in count two.

The Board's position in all of this is strangely ambiguous. Although filing an answer, and thereby not defaulting, the Board took no active role, apparently believing that its position, as an arm of the City, would be irrelevant in light of the City's default. We express no view on that position.

(continued)

(continued)

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A-6473-03T5

November 14, 2005