JOHN C. GROVE et al. v. SUSAN STEINHAUSER, Zoning Officer of the Township of Berkeley, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1435-06T11435-06T1

JOHN C. GROVE and CYNTHIA GROVE,

Plaintiffs-Appellants,

v.

SUSAN STEINHAUSER, Zoning Officer

of the Township of Berkeley, and

THE TOWNSHIP OF BERKELEY,

Defendants-Respondents.

__________________________________

 

Submitted November 26, 2007 - Decided

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of

New Jersey, Law Division, Ocean County,

L-1003-06.

Kent & McBride, attorneys for appellants (John J. Markwardt, on the brief).

Patrick Sheehan, attorney for respondents.

PER CURIAM

Plaintiffs, John and Cynthia Grove, appeal from a Law Division order denying their motion for summary judgment, dismissing their complaint in lieu of prerogative writs seeking declaratory relief from a decision rendered by the Township of Berkeley's (Township) Zoning Officer, and remanding the matter to the Township Zoning Board of Adjustment (Zoning Board). While this appeal was pending, the Township amended the applicable ordinance. The passage of the amendment renders this appeal moot. We, therefore, dismiss this appeal and remand the matter to the Zoning Board to consider plaintiffs' appeal under the amended ordinance. Contrary to the judge's decision, plaintiffs need not provide public notice of their appeal hearing before the Zoning Board.

We combine the procedural history and relevant facts. In February 2006, plaintiffs applied for a permit to construct a twenty-two foot high noncommercial ham radio antenna, with the capacity to be expanded to eighty-six feet when in use, on their residential property in the Township. In 1991, plaintiffs had applied and were granted a permit to install a fifty-five foot high telescopic tower on their property. The Township Zoning Officer, Susan Steinhauser, issued a zoning permit denial pursuant to Chapter 35, section 89.7 of the Township Code because the antenna exceeded the fifteen-foot height maximum for accessory structures.

Chapter 89, section 89.7 of the Township Code, entitled "Accessory Buildings," states:

Accessory buildings shall not exceed fifteen (15) feet in height.

Accessory buildings shall occupy no more than twenty-five (25%) percent of the available front yard in a residential or rural zone and not more than forty (40%) percent of the available rear yard area in a business or industrial zone.

Accessory buildings attached to the main building shall be considered as part of the principal structure and shall comply with all setback requirements as set forth in the Schedule of Requirements.

Chapter 35, section 89.8a of the Township Code, entitled "Height Limitations and Exemptions," states:

Height limitations and exemptions in all parts of the Township other than the Pinelands Area shall be in accordance with the following standards:

The maximum building height and structure height shall not apply to noncommercial antennas, chimneys, church spires and other mechanical appurtenances usually carried above the normal roofline, provided that no fire hazard is created, and provided that such exception covers not more than ten (10%) percent of the roof or ground area.

Public buildings, schools and churches of fire-resistant construction shall increase all setbacks one and one-half (1 1/2) feet for each one (1) foot by which such building exceeds the height limit established for that zone, but in no case shall any building have a height greater than fifty (50) feet.

Chapter 35, section 3 of the Township Code provides "Definitions and Word Usage" and notes that "[t]he word 'building' includes the word 'structure.'" Additionally, it states that

[a]ccessory use, structure or building shall mean a use, structure or building which is subordinate to and serves a principal building or a principal use; is subordinate in area, extent and purpose to the principal structure or principal building or use served; contributes primarily to the comfort, convenience or necessity of the occupants, business or industry of the principal structure or principal use served; and is located on the same parcel as the principal structure or principal use served, except as otherwise expressly authorized by the provisions of this chapter.

On March 10, 2006, plaintiffs filed a notice of appeal to the Zoning Board for an interpretation of the Township Code and a hearing was scheduled for October 11, 2006. On March 22, 2006, plaintiffs filed their complaint seeking to declare the denial of the zoning permit as "null, void, and of no legal effect." They also sought a "judgment adjudicating and declaring that an appeal of the Denial to the Township Zoning Board of Adjustment by the plaintiffs is unnecessary and that the plaintiffs need not pursue or exhaust that remedy." The hearing on plaintiffs' appeal to the Zoning Board was deferred pending receipt of a determination by the trial court.

In their motion for summary judgment, plaintiffs argued that Chapter 36, section 89.7 of the Township Code "pertains only to accessory buildings" and that the antenna was an "accessory structure," not an "accessory building." Plaintiffs also asserted alternatively that if the antenna was considered an accessory building, it was specifically exempted from any building height limitation pursuant to Chapter 35, section 89.8 A. 1 because it was noncommercial, did not create a fire hazard, and did not cover more than ten percent of the roof or ground area.

Defendants responded, noting "[t]he reason the denial was issued under Section 35:89.7 was that the Zoning Officer interpreted the antenna to be an accessory structure and synonymous with an accessory building pursuant to the Township Code." Defendants also denied plaintiffs' claims that the antenna was noncommercial, did not create a fire hazard, and did not cover more than ten percent of the roof or ground area.

On September 25, 2006, following oral argument, the judge denied plaintiffs' motion, noting that several factual issues precluded summary judgment, and finding a "lack of any kind of factual record with sufficient testimony . . . as to whether or not the elements of [Section 35-89.8] have been met." He rejected plaintiffs' contention that the issues were limited to questions of law and found that plaintiffs failed to exhaust administrative remedies. R. 4:69-5. He, accordingly, remanded the matter to the Zoning Board to determine the factual issues presented under the applicable ordinance. Pointing out that because adjoining property owners may be concerned whether the towers affect their property, the judge required that public notice be provided.

Plaintiffs filed their Notice of Appeal on November 6, 2006. On November 28, 2006, Section 89.8a(1) was amended to read the following:

Height limitations and exemptions in all parts of the Township other than the Pinelands Area (except the RGR Zone) shall be in accordance with the following standards:

The maximum building height and structure height shall not apply to noncommercial antennas, chimneys, church spires and other mechanical appurtenances located on the roofline, provided that no fire hazard is created, and provided that such exception covers not more than [ten] (10%) percent of the roof. No more than one (1) antenna exceeding fifty (50) feet in height may be located on a single-family dwelling located in a residential zone.

On appeal, plaintiffs assert: (1) the judge should not have considered defendant's opposition because they served their opposing papers late; (2) section 89.7 is restricted to accessory buildings "such [as] roofed edifices" and not to accessory structures such as noncommercial antennas; (3) they need not exhaust their administrative remedies because the issues do not involve administrative expertise or discretion but only involve a question of law; and (4) if remanded, public notice is not required.

Defendants counter, asserting that the judge correctly remanded to permit plaintiffs to exhaust their administrative remedies, plaintiffs failed to carry their burden to show that there is no genuine issue of material fact to warrant granting their motion, and the amended ordinance implicates the time of decision rule, rendering application of the old ordinance moot, thus requiring dismissal of the appeal.

Issues that have been rendered moot by subsequent developments render legal issues abstract and outside the proper realm of courts. Zirger v. General Accident Ins. Co., 144 N.J. 327, 330 (1996); Oxfeld v. New Jersey State Bd. of Educ., 68 N.J. 301, 303-04 (1975); Sente v. Mayor & Mun. Council of Clifton, 66 N.J. 204, 205 (1974). As we stated in City of Camden v. Whitman, 325 N.J. Super. 236, 243 (App. Div. 1999),

"courts of this State do not resolve issues that have become moot due to the passage of time or intervening events." "'An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy.'" Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (quoting New York S. & W.R. Corp. v. State, Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax 1989), aff'd, 204 N.J. Super. 630 (App. Div. 1985).

[A] municipality may change its regulating ordinances after an application has been filed and even after a building permit has been issued and, as long as the applicant has not substantially relied upon the issuance of the building permit, it is subject to the amended ordinance. This is even so where the municipality amends its ordinance in direct response to the application.

[Burcam Corp. v. Planning Bd. of Medford, 168 N.J. Super. 508, 512 (App. Div. 1979).]

See also Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378-79 (1995) ("That a municipality may change its zoning ordinance during the pendency of a site plan application is beyond question. This is so even if the ordinance is amended in direct response to a particular application.").

"As a general rule, on direct review of the actions of those charged with making and enforcing local zoning policy a court should apply the statute in effect at the time of its decision . . . ." Lake Shore Estates, Inc. v. Denville Twp. Planning Bd., 255 N.J. Super. 580, 589 (App. Div. 1991), aff'd o.b., 127 N.J. 394 (1992). "'The purpose of the principle is to effectuate the current policy declared by the legislative body a policy which presumably is in the public interest.'" Ibid. (quoting Kruvant v. Mayor & Council Twp. of Cedar Grove, 82 N.J. 435, 440 (1980)); see also Timber Props., Inc. v. Twp. of Chester, 205 N.J. Super. 273, 277 (Law Div. 1984) ("[A]ny zoning amendment presumably serves to preserve the desirable characteristics of the community through zoning, and the exemption of a property owner from a zoning amendment simply because an application has been filed under a prior ordinance would undermine the objectives sought to be achieved by the new ordinance." (internal quotation marks and citation omitted)). Under the "time of decision" rule, plaintiffs' application is now subject to the amended Township Code.

In order for plaintiffs to avoid the "time of decision" rule, they must have had "vested rights" under the previous Township Code. See Timber Props., Inc., supra, 205 N.J. Super. at 277-82. Since plaintiffs never obtained the permit for the second antenna, the only source of "vested rights" rests within the judicially developed doctrine of equitable estoppel. Id. at 278. Because a permit was not issued nor a trial order entered requiring municipal approval, plaintiffs cannot establish substantial reliance sufficient to overcome the time of decision rule. Id. at 278-79. Therefore, the "time of decision" rule effectively renders plaintiffs' appeal under the former ordinance moot.

In their reply brief, plaintiffs argue that the "time of decision" rule is inapplicable because the newly adopted provision of the Township Code is unconstitutional as preempted by federal law. Preemption is rooted in Article VI of the United States Constitution, which provides that the laws of the United States "shall be the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2; Feldman v. Lederle Labs., 125 N.J. 117, 133 (1991), cert. denied, 505 U.S. 1219, 112 S. Ct. 3027, 120 L. Ed. 2d 898 (1992). "When considering issues of preemption, one starts with the assumption that the historic police powers of the states will not be superseded by a federal act absent the clear and manifest purpose of the federal government to do so." Beadling v. William Bowman Assoc., 355 N.J. Super. 70, 84 (App. Div. 2002) (citing Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 2617, 120 L. Ed. 2d 407, 422 (1992)).

In 1985, the Federal Communication Commission (FCC) released a declaratory ruling entitled "Federal Preemption of State and Local Regulations Pertaining to Amateur Radio Facilities." Amateur Radio Preemption, 50 Fed. Reg. 38,813 (Sept. 25, 1985) (PRB-1). PRB-1 addresses the tension between state and zoning regulations and federal interest in amateur radio operations:

On the one hand, a local municipality, through the exercise of its traditional police powers, may regulate the height and placement of radio antenna towers erected in residential districts. A municipality's motivations for such regulation include the possibilities that an antenna may block the line of sight of pedestrians or drivers; constitute a prominent eyesore that also may interfere with a scenic view; fall on nearby residences; or decrease property values.

Amateur radio operators, on the other hand, plainly have an interest in maintaining successful amateur communications and in sustaining a strong network of radio amateurs. The federal government's interests are aligned with those of the amateurs, for amateur radio volunteers afford reliable emergency preparedness, national security, and disaster relief communications. Because there is a direct correlation between an amateur's antenna height and her ability successfully to transmit and receive radio signals, federal interests are furthered when local regulations do not unruly restrict the erection of amateur radio antennas.

[Pentel v. City of Mendota Heights, 13 F.3d 1261, 1263 (8th Cir. 1994).]

PRB-1 is a "limited preemption policy" and states, in pertinent part:

[W]e believe it is appropriate to strike a balance between the federal interest in promoting amateur operations and the legitimate interests of local governments in regulating local zoning matters. The cornerstone on which we will predicate our decision is that a reasonable accommodation may be made between the two sides.

. . . .

. . . [W]e believe a limited preemption policy is warranted. State and local regulations that operate to preclude amateur communications in their communities are in direct conflict with federal objectives and must be preempted.

. . . We will not . . . specify any particular height limitation below which a local government may not regulate, nor will we suggest the precise language that must be contained in local ordinances, such as mechanisms for special exceptions, variances, or conditional use permits. Nevertheless, local regulations which involve placement, screening, or height of antennas based on health, safety, or aesthetic considerations must be crafted to accommodate reasonably amateur communications, and to represent the minimum practicable regulation to accomplish the local authority's legitimate purpose.

[PRB-1, supra, at 22, 24-25 (footnotes omitted).]

The FCC followed PRB-1 with a similar order, which provides:

Except as otherwise provided herein, a station antenna structure may be erected at heights and dimensions sufficient to accommodate amateur service communications. (State and local regulation of a station antenna structure must not preclude amateur service communications. Rather, it must reasonably accommodate such communications and must constitute the minimum practicable regulation to accomplish the state or local authority's legitimate purpose. . . .)

[FCC Safety & Special Radio Servs., 47 C.F.R. 97.15(b).]

In determining whether PRB-1 preempts a local ordinance, a reviewing court should apply a two-part analysis:

First, a local regulation may be preempted on its face. For instance, a city's zoning ordinance that banned or imposed an unvarying height restriction on amateur radio antennas would be facially invalid in light of PRB-1.

Second, PRB-1 preempts a local regulation where a city fails to apply a local ordinance in a manner which reasonably accommodates amateur communications. Accordingly, a local regulation that impairs amateur radio communications is preempted as applied if the city has not crafted it to accommodate reasonably amateur communications while using the minimum practicable regulation [necessary] to accomplish the local authority's legitimate purpose.

[Palmer v. City of Saratoga Springs, 180 F. Supp. 2d 379, 384 (N.D.N.Y. 2001) (alteration in original) (internal citations and quotation marks omitted).]

Contrary to plaintiffs' contention, the amended Township Code is not preempted on its face because it neither bans nor imposes an unvarying height restriction on the construction of one amateur radio antenna. Rather, it restricts the use of "more than one (1) antenna exceeding fifty (50) feet in height." The appellate record does not provide any information upon which to determine whether the Township has applied the amended Township Code in a manner that reasonably accommodates amateur communications.

"Scant case law exists . . . to define the parameters of how 'accommodating' a municipality must be to amateur radio needs." Palmer, supra, 180 F. Supp. at 385. In Pentel, the Eighth Circuit held that "[a]pplication of this reasonable accommodation standard . . . does not require the city to allow the amateur to erect any antenna she desires. Instead, it requires only that the city 'consider[] the application, make factual findings, and attempt[] to negotiate a satisfactory compromise with the applicant.'" Pentel, supra, 13 F.3d at 1264 (quoting Howard v. City of Burlingame, 937 F.2d 1376, 1380 (9th Cir. 1991)); see also Evans v. Bd. of County Comm'rs of Boulder Co., 994 F.2d 755, 763 (10th Cir. 1993) ("[D]enial of the permit after evaluating options and thoroughly considering the relevant evidence was a reasonable accommodation."); Williams v. City of Columbia, 906 F.2d 994, 997 (4th Cir. 1990) (holding that city applied its zoning ordinance in compliance with PRB-1 because zoning board "investigated the possibility of accommodating Williams' request while simultaneously preserving the aesthetic beauty and safety of the neighborhood by suggesting a restriction of hours of operation, [even though] these attempts at compromise were rejected by Williams").

The Zoning Board has not yet had the opportunity to make factual findings and the record does not reflect any attempt to negotiate a compromise with plaintiffs.

[L]acking a final decision by the Zoning Board, [the] Court cannot determine whether the Township is applying the Ordinance in a manner inconsistent with the federal policies stated in PRB-1. . . . [A]n appeal to the Zoning Board will produce a record which [the] Court can review if the Zoning Board's decision is challenged. Other courts have relied heavily upon the records established during zoning board hearings to determine whether [there] was accommodat[ion] by the local government. Lacking a record, this Court cannot evaluate the propriety of the Township's actions . . . .

[Goldberg v. Charter Twp. of W. Bloomfield, No. 90-1039, 1 990 U.S. App. LEXIS 22019, (6th Cir. Dec. 17, 1990) (slip op. at *6) (citation omitted).]

Stated simply, PBR-1 does not necessarily conflict with or supersede application of the amended Township Code. Thus, a remand is in order so that the Zoning Board can make appropriate factual findings and be given the opportunity to reasonably accommodate plaintiffs' request to construct a second antenna.

Because the passage of the amendment renders this appeal moot, we need not address the judge's decision denying plaintiffs' summary judgment and requiring them to exhaust their administrative remedies before the Zoning Board. Nevertheless, our review of the record satisfies us that the judge correctly determined that factual questions existed, precluding summary judgment, and requiring plaintiffs to exhaust their administrative appeal before the Zoning Board under that portion of the pre-amended portion of Section 89.8 A. 1 that is still in force. A decision on those issues is best left to the Zoning Board. See Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 587-88 (2001); Boss v. Rockland Elec. Co., 95 N.J. 33, 41 (1983).

Finally, N.J.S.A. 40:55D-12a gives municipalities the discretion to adopt ordinances requiring public notice for such things as "appeals of determinations of administrative officers." The law does not permit our courts to "disregard plain statutory language." State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994). The Township has not adopted an ordinance requiring public notice of appeals to the Zoning Board from administrative officers or request for interpretations. It is within the province of the Township, not the court, to require public notice for appeals to the Board. Absent such an ordinance, plaintiffs are not required to give public notice. Accordingly, the matter is remanded to the Zoning Board to consider plaintiffs' application under the amended ordinance. Plaintiffs need not provide public notice of its Zoning Board appeal hearing. We do not retain jurisdiction.

Dismissed.

The requirement that plaintiffs provide public notice was announced by the judge in his oral decision but was not included in the order dismissing plaintiffs' complaint and remanding the matter to the Zoning Board.

Specifically, those factual issues encompassing whether the antenna will be carried above the normal roofline, creates no fire hazard or covers not more than ten (10%) percent of the roof or ground.

(continued)

(continued)

17

A-1435-06T1

December 14, 2007