NICHOLAS PANACCIONE v. PIOTR HOLOWIAK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5461-06T35461-06T3

NICHOLAS PANACCIONE and CINDY

PANACCIONE,

Plaintiffs-Appellants,

v.

PIOTR HOLOWIAK and NORTHEAST

STUCCO SYSTEMS, INC.,

Defendants-Respondents,

and

TOWNSHIP OF OLD BRIDGE and

PLANNING BOARD OF OLD BRIDGE,

Defendants.

_________________________________

 

Argued October 8, 2008 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey,

Law Division, Middlesex County, Docket No.

L-10236-06.

Richard D. Schibell argued the cause for appellants (Schibell, Mennie & Kentos, LLC, attorneys; Mr.

Schibell, of counsel; Lisa C. Krenkel, on the brief).

Willard C. Shih argued the cause for respondents (Wilentz, Goldman & Spitzer, P.A., attorneys; Mr. Shih and Michael J. Weisslitz, of counsel and on the brief).

PER CURIAM

Plaintiffs Nicholas and Cindy Panaccione appeal from the May 11, 2007 summary judgment dismissal of their Law Division complaint in favor of defendants Piotr Holowiak (defendant), Northeast Stucco Systems, Inc. (NSS), the Township of Old Bridge (Old Bridge) and the Planning Board of Old Bridge (Board). We affirm.

By way of background, defendant owned a 6.835-acre tract of residentially-zoned property on East Greystone Road in Old Bridge, and lived in a home situated in the middle of the property. The property was protected by the New Jersey Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30. In 1997, the New Jersey Department of Environmental Protection (DEP) cited defendant for violations of the FWPA, which defendant claims were the result of tree removal and clearing activities on his undivided lot. Defendant submitted a restoration plan in response to the violations, and on December 19, 1997, the DEP approved a revised version of the plan. Six months later, on June 30, 1998, the DEP issued a letter advising defendant that it had "inspected the freshwater wetland restoration area and found it to be acceptable and reasonably in accordance with the approved restoration plan."

In November 1999, defendant submitted a land development application to Old Bridge seeking subdivision of the undivided property into three separate lots. The application specifically sought approval to create two additional building lots (Lots 60.11 and 60.13) on each side of defendant's current house (Lot 60.12). On August 6, 2002, the Board adopted a resolution specifically recognizing defendant's intent to develop the two new lots and approving his plan subject to several conditions. On October 3, 2002, the DEP approved defendant's application and issued a Statewide General Permit and Transition Area Waiver Averaging Plan Authorization.

After obtaining subdivision approval in 2002, defendant decided to sell his residence. Plaintiffs agreed to purchase Lot 60.12 from defendant for $935,000, and on August 3, 2005, the parties entered into a contract for sale. The contract contained an "as is" provision and an integration clause, specifically reciting that plaintiffs were not relying upon any representation of defendant or NSS outside those within the four corners of the contract. On August 11, 2005, plaintiffs' counsel confirmed that the contract was acceptable without modifications and the parties proceeded to closing.

Prior to closing, defendant, who was in Poland at the time, transferred the property in question (Lot 60.12) to NSS, of which he was the president and sole owner. At the October 28, 2005 closing, NSS conveyed the property to plaintiffs via a bargain and sale deed. The deed expressly refers to the subdivision plan, reciting: "[d]eed description refers to map entitled 'Proposed Minor Subdivision prepared for Piotr Holowiak of Lot 60 . . . ." Also at closing, the parties executed a release in which they waived "any and all claims" and rights against the other.

This much appears undisputed. The parties differ, however, over what if anything had been represented orally prior to the contract's closing. According to Nicholas Panaccione, defendant told him that the bookend lots were undevelopable and that he had no plans to develop them. Defendant denies making any such representation and in fact insists that he never met plaintiffs prior to signing the contract. Moreover, Grzegorz Kochan, vice president of NSS, certified that after closing, plaintiffs advised him that if defendant decided not to build on Lots 60.11 or 60.13, they would be interested in purchasing them.

In any event, based on their version, on December 22, 2006, plaintiffs filed a multi-count complaint against defendant, NSS, the Township and the Board, alleging common law and statutory consumer fraud, nuisance, and tortious interference with their enjoyment of the property. In addition, or as an alternative to damages, plaintiffs' sought to void the Board's July 2, 2002 subdivision approval, which they contended was without knowledge of defendant's wetlands violations, and ultimately to enjoin defendant from developing the two parcels he still owned adjacent to their property. To that end, on January 29, 2007, plaintiffs moved for a preliminary injunction and leave to file a lis pendens. In response, on February 14, 2007, defendant filed a motion to dismiss plaintiffs' complaint with prejudice. In their opposition, plaintiffs, contending that defendant was still in violation of the FWPA, for the first time sought enforcement through the Environmental Rights Act (ERA), N.J.S.A.

2A:35A-1 to -14.

Treating the dismissal motion as one for summary judgment because materials beyond the complaint were presented, the judge granted defendants the relief requested and denied plaintiffs' motions for a preliminary injunction and lis pendens. In so ruling, the judge specifically found that: plaintiffs failed to properly plead the ERA claim; both the contract and the general release barred plaintiffs' fraud-related claims; evidence supporting their fraud claims was barred by the parol evidence rule; the Consumer Fraud Act was inapplicable; their nuisance claim was meritless; their challenge to the subdivision plan was time-barred; and they were not entitled to injunctive relief under the circumstances.

On appeal, plaintiffs raise the following issues for our consideration:

I. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT PERMITTING AMENDMENT OF PLAINTIFFS' PLEADINGS TO INCLUDE THE ENVIRONMENTAL RIGHTS ACT ("ERA") AND IN NOT FINDING THAT PLAINTIFFS' PLEADINGS HAD ALLEGED THE ERA.

II. THE ENVIRONMENTAL RIGHTS ACT VESTS IN YOUR PLAINTIFFS AND THE TRIAL COURT THE RIGHT TO PROSECUTE TO CONCLUSION THE AVERRED VIOLATION OF N.J.A.C. 7:7A-14.5 AND ITS DEFERENCE TO THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION WAS NOT STATUTORILY REQUIRED UNDER THE WITHIN CICRUMSTANCES.

III. PLAINTIFFS HAVE THE INDEPENDENT RIGHT TO PURSUE THEIR CLAIMS REGARDLESS OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL'S INACTION, REMEDIES FOR ENVIRONMENTAL DESECRATION UNDER THE ERA UNDER THE WITHIN CIRCUMSTANCES.

IV. UNDER THE WITHIN CIRCUMSTANCES, THE PAROL EVIDENCE RULE DID NOT BAR EVIDENCE OF FRAUDULENT CONDUCT BY DEFENDANTS, NOR DID THE RELEASE EXECUTED BY PLAINTIFFS ANCILLARY TO CLOSING PRECLUDE THE RELIEF SOUGHT.

V. PLAINTIFFS' EXECUTION OF A RELEASE AT TIME OF CLOSING BY VIRTURE OF DEFENDANTS' FRAUDULENT CONDUCT DOES NOT BAR PLAINTIFF'S CLAIMS DIRECTLY OR COLLATERALLY AS IT RELATES TO THE CONTIGUOUS PARCELS NOT ENCOMPASSED THEREIN.

VI. THE CORPORATE DEFENDANT NORTHEAST STUCCO SYSTEMS, INC. IS SUBJECT TO THE NEW JERSEY CONSUMER FRAUD ACT AS A COMMERCIAL SELLER OF REAL ESTATE.

VII. THE TRIAL JUDGE ERRED IN GRANTING SUMMARY JUDGMENT PREMATURELY BY MAKING FACTUAL AND LEGAL CONCLUSIONS WITHOUT GIVING APPROPRIATE DEFERENCE TO THE REQUISITE INFERENCES AT THE TIME OF HEARING.

VIII. THE CONDUCT AVERRED BY THE PLAINTIFFS

IN THE DESTRUCTION OF WETLANDS CONSTITUTES

A PUBLIC AND PRIVATE NUISANCE.

IX. PLAINTIFFS, IN THEIR CHALLENGE TO THE WITHIN SUBDIVISION GRANT, ARE NOT BARRED BY THE FORTY-FIVE (45) DAY RULE.

X. THE COURT ERRED IN FINDING THAT THE AWARD OF MONETARY DAMAGES WOULD SUFFICE SHOULD PLAINTIFFS HAVE PREVAILED; A LIS PENDENS AND PRELIMINARY INJUNCTION SHOULD HAVE BEEN ISSUED.

We address these issues in the order raised.

(A)

During oral argument, plaintiffs raised an ERA claim not specifically or expressly pled in their complaint. The trial court noted at the time:

I don't see in your pleadings an assertion of the [ERA]. I see that that was first raised in your papers filed on April 19th

. . . . but you didn't assert the [ERA]. It's not asserted anywhere in the pleading

. . . [and] you are supposed to assert that in the complaint so the D.E.P. is on notice and the State . . . is made a party. That's one of the statutory requirements for invocation. . . . So while I note you raise it, it's really not before the Court

. . . . Certainly to use such a statutory remedy you would have had to comply with the entirety of this statute . . . .

Consequently, the motion judge dismissed plaintiffs' so-called ERA claim because it was not pled in their complaint, failed to comply with the ERA's mandatory pre-suit notice requirement, and was, in any event, substantively deficient.

On appeal, plaintiffs contend that a "fair reading of the complaint," including its "verbiage" about wetlands destruction/alteration was sufficient to invoke the ERA and that the requisite notice to the DEP was provided by Dr. Walker's correspondence. We disagree.

The ERA enables private citizens to pursue their own enforcement proceedings in circumstances where the DEP fails to do so, providing in pertinent part:

Any person may commence a civil action . . . against any other person alleged to be in violation of any statute, regulation or ordinance which is designed to prevent or minimize pollution, impairment or destruction of the environment. The action may be for injunctive or other equitable relief to compel compliance with a statute, regulation or ordinance . . . . The action may be commenced upon an allegation that a person is in violation, either continuously or intermittently, of a statute, regulation or ordinance, and that there is a likelihood that the violation will recur in the future.

[N.J.S.A. 2A:35A-4a.]

The ERA, however, does not confer any substantive rights directly. Mayor & Council of Rockaway v. Klockner & Klockner, 811 F. Supp. 1039, 1054 (D.N.J. 1993) (citing Superior Air Prods. v. NI Indus., 216 N.J. Super. 46, 58 (1987), appeal dismissed, 126 N.J. 308 (1991)). Rather, it grants private plaintiffs standing to enforce other New Jersey environmental statutes "as an alternative to inaction by the government which retains primary prosecutorial responsibility." Superior Air Prods., supra, 216 N.J. Super. at 58.

There are two significant limitations to this statutory "procedural" remedy. First, it does not enable a citizen to compel performance of a discretionary function. Ironbound Health Rights Advisory Comm'n v. Diamond Shamrock Chem. Co., 216 N.J. Super. 166, 174 (App. Div. 1987). The government is "entrusted initially with the right to determine the primary course of action to be taken." Rockaway, supra, 811 F. Supp. at 1054 (quoting Twp. of Howell v. Waste Disposal, Inc., 207 N.J. Super. 80, 95 (App. Div. 1986)). Private citizens only have the right of enforcement under the ERA when "the state agency has failed or neglected to act in the best interest of the citizenry or has arbitrarily, capriciously or unreasonably acted[.]" Morris County Transfer Station, Inc. v. Frank's Sanitation Serv., Inc., 260 N.J. Super. 570, 577-78 (1992) (quoting Twp. of Howell, supra, 207 N.J. Super. at 96) (finding a three-year delay in addressing an ongoing Solid Waste Management Act violation constituted inaction that enabled a private citizen to bring an ERA claim). Second, the ERA is only available to prevent future violations; it cannot be used to seek redress for past ones. N.J.S.A. 2A:35A-4 ("The action may be commenced upon an allegation that a person is in violation, either continuously or intermittently, of a statute, regulation or ordinance, and that there is a likelihood that the violation will recur in the future.").

Here, the particular environmental statute plaintiffs seek to enforce through the ERA is the FWPA. The FWPA, in turn, vests the DEP with the authority to enforce its provisions and terminate any permits issued. N.J.S.A. 13:9B-20, -21; N.J.A.C. 7:7A-14.5. In fact, courts have routinely deferred to the DEP in FWPA cases. See East Cape May Assocs. v. State, Dept. of Envtl. Prot., 343 N.J. Super. 110, 131-32 (App. Div.), certif. denied and appeal dismissed, 170 N.J. 211 (2001).

Because private enforcement of environmental laws through the ERA hinges on agency inaction, the ERA contains mandatory pre-suit notice requirements:

No action may be commenced pursuant to this act unless the person seeking to commence such suit shall, at least 30 days prior to the commencement thereof, direct a written notice of such intention by certified mail, to the Attorney General, the Department of Environmental Protection, . . . and to the intended defendant; provided, however, that if the plaintiff in an action brought in accordance with the "N.J. Court Rules, 1969," can show that immediate and irreparable damage will probably result, the court may waive the foregoing requirement of notice.

[N.J.S.A. 2A:35A-11.]

Summary judgment is appropriate when a plaintiff fails to comply with this mandatory condition precedent. See Player v. Motiva Enters., LLC, 240 Fed. Appx. 513, 524 (3d Cir. 2007); See also Twp. of Howell, supra, 207 N.J. Super. at 95 (recognizing Legislature designed notice requirement to allow agencies to exercise value judgments such as whether to join the case, whether its expertise will assist the court, and whether state interests would be sacrificed to personal interests by the instigators of the suit).

Indisputably here, plaintiffs have failed to comply with this requirement. They did not mail notice to the DEP or the Attorney General of New Jersey announcing their intent to bring suit under the ERA. Nor did Dr. Walker's post-filing correspondence to the DEP suffice. Not only was it untimely, but it failed as well to notify the DEP that plaintiffs intended to pursue an enforcement action. Nor have plaintiffs demonstrated any immediate irreparable damage resulting from failure to waive the notice requirement.

Besides failing to provide the requisite notice, plaintiffs' complaint does not suggest - much less plead - an ERA claim. The complaint refers neither to the ERA nor the environmental statute - the FWPA - plaintiffs seek to enforce through the ERA. At best, plaintiffs allude to non-specified violations of state and local statutes in Count Three, which they voluntarily dismissed in any event. Indeed, a "fair reading" of the complaint's fraud, misrepresentation, nuisance, tortious interference and property delineation dispute counts fails to suggest, or even hint at, plaintiffs' interest to enforce another environmental statute against defendant. And finally, nowhere do plaintiffs assert governmental inaction, a necessary prerequisite to an ERA claim.

Significantly, as to the latter, the motion judge found that the DEP in this instance retained exclusive jurisdiction to investigate defendant's alleged FWPA violations and to enforce the Act:

[A]s I understand it, plaintiffs are arguing that because there was purported fraud on the [DEP] that this Court is vested with jurisdiction to address what may have been a misrepresentation by defendants at the time the wetlands restoration was approved.

Plaintiffs are relying on the New Jersey Administrative Code 7:7A-14.5. And as the Court reads that section . . . it is the [DEP] who must make the determination that the issuance of the permit was based upon false or inaccurate information. I note that the department, while being provided with copies of various reports of Dr. Walker and various copies of things, is not a party to this action. . . . [T]he case law that says the Court should defer to agencies where by legislative authority -- in this case the Administrative Code -- the agency is vested as the place of first review. . . . [T]his court is not going to usurp what the Administrative Code says which it should be the province of the department who is the overall regulator of the [FWPA] to make that determination.

Indeed, plaintiffs acknowledge a pending DEP investigation of the alleged FWPA violations at the time the dismissal motion was heard. As such, plaintiffs' ERA claim is substantively defective for failure to show agency inaction. This critical defect, together with the procedural deficiencies already noted, defeats plaintiffs' so-called ERA claim.

(B)

Plaintiffs' challenge to the dismissal of their fraud-related claims is multi-faceted. They argue that the general release signed by the parties at closing did not preclude their claims; that the trial court misapplied the parol evidence rule; and that the Consumer Fraud Act applies. We disagree with these contentions.

(i)

At closing, the parties executed a release stating:

I release and give up any and all claims and rights which I may have against you. This releases all claims, including those of which I am not aware and those not mentioned in this Release. This Release applies to claims resulting from anything which has happened up to now. I specifically release the following claims:

Any and all claims arising out of the transfer of title of premises known as 317 East Greystone Road, Old Bridge, New Jersey between the parties.

Because the parties disputed the property boundaries of Lot 60.12 at time of closing, plaintiffs argued below that the release should be limited to claims involving that dispute and that they could not have waived claims of which they were unaware. The motion judge rejected this argument, stating:

The release that is provided to this Court is a very broad release and it releases any and all claims arising out of the transfer of title of premises known as 317 East Greystone Road [(Lot 60.12)], Old Bridge, New Jersey, between the parties.

. . . .

It is a very broad release and it releases any and all claims. And to the extent there was any dispute . . . as to acreage, that could have been put in there if, as plaintiffs say, it was only because there was a dispute in the listing agreement . . . . This is about as broad a release as you can get releasing any and all claims. I can't read in what plaintiffs' counsel wants me to read into the release.

Consequently, the judge dismissed plaintiffs' fraud-related claims in part because the broad language of the release prohibited them from seeking any relief from a lawsuit based on their contract. We find no fault with this reasoning.

"The scope of a release is determined by the intention of the parties as expressed in the terms of the particular instrument, considered in the light of all the facts and circumstances." Bilotti v. Accurate Forming Corp., 39 N.J. 184, 203 (1963). "A general release, not restricted by its terms to particular claims or demands, ordinarily covers all claims and demands due at the time of its execution and within the contemplation of the parties." Id. at 204. Moreover, when a release's language refers to "any and all" claims, as here, courts generally do not permit exceptions. Isetts v. Borough of Roseland, 364 N.J. Super. 247, 255-56 (App. Div. 2003). Thus, the fact that plaintiffs may have been unaware of defendant's intentions as to Lots 60.11 and 60.13, in and of itself, does not entitle them to avoid the effect of the broad provisions of the general release.

(ii)

Even if the release were not dispositive of the fate of plaintiffs' fraud-related claims, the contract of sale, in our view, is. Such claims are based on alleged oral representations by defendant that Lots 60.11 and 60.13 were undevelopable and that he would not develop them. The parties' contract, however, does not contain such representations and in fact provides just the opposite, namely that plaintiffs were not relying upon any representations made by defendant not expressly in the contract:

NO RELIANCE ON OTHERS: This Agreement is entered into based on the knowledge of the parties as to the value of the land and whatever buildings are upon the Property and not on any representation made by the SELLER, the named Broker(s) or their agents as to character or quality. THIS MEANS THAT THE PROPERTY IS BEING SOLD "AS IS", EXCEPT AS OTHERWISE MENTIONED IN THIS AGREEMENT.

The contract also contained an integration clause further buttressing the fact that plaintiffs were not relying on any representations of defendant in agreeing to purchase Lot 60.12:

BINDING AGREEMENT: This Agreement binds the SELLER and BUYER and also their heirs and personal representative in the case of death. It also is the entire and only Agreement between the parties and neither has made any promise or guaranty not contained in this Agreement.

Consequently, the judge found the contract dispositive of the issue:

[One of Defendant's arguments is] that parol evidence bars the change of the contract, specifically the real estate contract, Paragraph . . . 19 and 20 of the contract of sale. . . . [W]hich are that we are making no other representations not contained in this agreement and that this is the entirety of the agreement, cannot under case law be altered by the parol evidence rule; that this Court's function is not to make a better agreement than that which was assigned by the parties. As I understand [the Plaintiffs'] argument, they are trying to say that somehow there were misrepresentations in connection with that.

However, . . . by way of the briefs and the certifications that the misrepresentations really relate to what the defendant entity did vis- -vis the wetland issue as opposed to the representations in the contract . . . .

So the Court is -- is inclined to agree . . . that the parol evidence should not be used to alter that contract . . . .

Where a contract demonstrates that the parties have merged all prior negotiations and agreements in writing, the parol evidence rule bars evidence of prior negotiations and agreements tending to add or vary the terms of the writing being considered. Filmlife, Inc. v. Mal "Z" Ena, Inc., 251 N.J. Super. 570, 573 (App. Div. 1991). This tenet is especially true when the contract itself contains an integration clause. Harker v. McKissock, 12 N.J. 310, 321-22 (1953) ("The essence of voluntary integration is the intentional reduction of the act to a single memorial; and where such is the case the law deems the writing to be the sole and indisputable repository of the intention of the parties.") (citations omitted).

To be sure, "[i]ntroduction of extrinsic evidence to prove fraud in the inducement . . . is a well-recognized exception to the parol evidence rule." Filmlife, supra, 251 N.J. Super. at 573. However, "[e]xtrinsic evidence to prove fraud is admitted because it is not offered to alter or vary express terms of a contract, but rather, to avoid the contract or to prosecute a separate action predicated upon the fraud[,]" id. at 573-74, and provided that the alleged fraud concern a matter not addressed in the agreement. Id. at 575.

Our decision in Filmlife is illustrative. In Filmlife, supra, the plaintiff entered into a lease for a 1 989 Lincoln Town Car. 251 N.J. Super. at 572. At the signing of the lease, plaintiff traded in a 1984 Cadillac for a $6,000 allowance. Ibid. The lease provided that the $6,000 trade-in value was a capitalized cost reduction applied as a down payment. Ibid. The lease also stated that its four corners "contains the entire agreement" between the parties. Ibid. The plaintiff claimed that an employee of defendant automobile lessor made representations to him that the $6,000 would be paid in cash. Ibid. When the defendant refused to do so, the plaintiff filed suit alleging fraud and misrepresentation. Ibid. The trial court dismissed his claim and we upheld the dismissal on the basis that the parol evidence rule precluded plaintiff from introducing extrinsic evidence to vary or contradict the express terms of the lease. Id. at 573-75.

Here, plaintiffs do not really seek to void the contract by alleging fraud. On the contrary, the gist of the relief they seek is to void the 2002 subdivision approval and to enjoin defendant from building on Lots 60.11 and 60.13. Moreover, plaintiffs seek to enforce an alleged representation not specified in a contract, which otherwise expressly states that its four corners contain the entire agreement and specifically precludes representations not documented in it. Even more pertinent, the deed conveyed by the contract refers to the Subdivision Plan approved by the Board for new developments; it makes no representation on behalf of defendant that the two new lots (60.11 and 60.13) would not be developed. Thus, enforcement of the alleged oral assertion would alter the contract terms with respect to representations contrary to both the contract and deed. As noted, extrinsic evidence to prove fraud is not admitted to alter or vary the express terms of a contract. Filmlife, supra, 251 N.J. Super. at 573-74.

(iii)

For these reasons, Plaintiffs' consumer fraud claim fares no better. In addition, the CFA applies only to professional sellers of real estate and not isolated one-time sales of residences by homeowners. Strawn v. Canuso, 140 N.J. 43, 60 (1995), superseded on other grounds by statute, New Residential Construction Off-Site Conditions Disclosure Act, L. 1995, c. 253, 1-12 (codified at N.J.S.A. 46:3C-1 to -12), as recognized in Nobrega v. Edison Glen Assocs., 167 N.J. 520, 533 (2001); DiBernado v. Mosley, 206 N.J. Super. 371, 376 (App. Div.), certif. denied, 103 N.J. 503 (1986) (recognizing the CFA's purposes was to prevent the deception, misrepresentation, and unconscionable practices of professional sellers seeking mass distribution of many types of consumer goods, not isolated sellers of single residences).

The transaction involved here is a sale of a single-family private residence by its owner. The contract of sale was executed by defendant who occupied the home being sold, and there is no competent evidence that defendant, in his individual capacity, is a commercial seller of real estate, or that the sale of the subject property is anything other than an isolated transactional event. The fact that, for purposes of convenience, defendant transferred title to NSS just prior to closing does not alter the fact that defendant personally executed the contract of sale and is the individual to whom plaintiffs attribute the fraudulent misrepresentations. In our view, the CFA does not apply and therefore the judge properly dismissed plaintiffs' consumer fraud claim.

(C)

In response to plaintiffs' argument that defendant's development of Lots 60.11 and 60.13 created a public and private nuisance, the trial court found:

This is three lots. It is not a public nuisance as the case law would define to be a public nuisance. There is no widespread impact to this case to invoke the doctrine of public nuisance. Nor does the Court find that there is any private nuisance as the case law says it should be unreasonable interference with the use and enjoyment of land. While I understand that plaintiffs

. . . may not be happy that they may have neighbors, that doesn't unreasonably interfere with their use and enjoyment of their land to qualify as a private nuisance as the Court understands the case law.

We agree.

A public nuisance involves a "course of conduct . . . calculated to result in physical harm or economic loss to so many persons as to become a matter of serious concern." James v. Arms Tech., Inc., 359 N.J. Super. 291, 329 (App. Div. 2003) (citations omitted). It may consist of unreasonable interference with the general public's exercise of a common right. Mayor & Council of Alpine v. Brewster, 7 N.J. 42, 50 (1951). A private person proceeding with a public nuisance claim must demonstrate a special injury. In re Lead Paint Litigation, 191 N.J. 405, 428 (2007).

There is no competent evidence in the record that development of Lots 60.11 and 60.13 will have a widespread impact or interfere with the public's exercise of a right. Moreover, plaintiffs failed to allege any special harm that development of Lots 60.11 and 60.13 will cause them. Plaintiffs' argument that development of these lots constitutes a private nuisance is equally unavailing. "The essence of a private nuisance is an unreasonable interference with the use and enjoyment of land." Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 448 (1959). Plaintiffs utterly fail to show how development of lots neighboring their home unreasonably interferes with their enjoyment of that home.

(D)

Plaintiffs' complaint also challenged the Board's 2002 approval of defendant's subdivision plan. At the motion proceedings, they argued for enlargement of the Rule 4:69-6 forty-five day deadline, which had long since passed, based on their allegations that defendant provided misinformation when obtaining the Board's approval. The trial court declined to enlarge the deadline, finding none of Rule 4:69-6(b)(3)'s exceptions applied.

Rule 4:69-6 sets forth the relevant deadline for challenging a township board's decision:

(a) General Limitation. No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, except as provided by paragraph (b) of this rule.

(b) Particular Actions. No action in lieu of prerogative writs shall be commenced

. . . .

 
(3) to review a determination of a planning board or board of adjustment

. . . after 45 days from the publication of a notice . . . .

[R. 4:69-6.]

This time proscription should only be enlarged "where it is manifest that the interest of justice so requires." R. 4:69-6(c). The Supreme Court has established three general categories to 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)).

None of these categories applies here. There are no novel constitutional issues, no informal or ex parte determinations by administrative officials, and no important public interests requiring adjudication or clarification. Indeed, it is difficult to conceive how plaintiffs could challenge the subdivision plan as an injustice when they voluntarily took advantage of the approval and purchased one of the subdivided lots. There being no reason to relax the time bar of Rule 4:69-6, the motion judge properly dismissed plaintiffs' challenge to the Board's 2002 subdivision approval.

(E)

We have considered plaintiffs' remaining arguments and deem them without merit. R. 2:11-3(e)(1)(E).

Affirmed.

One of the counts pled a Conscientious Employee Protection Act (CEPA) (N.J.S.A. 34:19-1 to -14) violation, which plaintiffs later acknowledged as inadvertent and voluntarily agreed to dismiss.

After filing their lawsuit, plaintiffs retained the services of Dr. Raymond Walker, a consultant specializing in environmental engineering, who then inspected defendant's property. On March 22, 2007, Walker reported his findings to the DEP, namely that the agency did not detect the full extent of the unauthorized filling of wetlands on defendant's property when it issued the notice of violation to defendant in 1996; that additional violations occurred after the DEP instituted its enforcement action, which remain unaccounted for to date; and that defendant did not comply with his obligations under the December 1997 DEP-approved restoration plan.

N.J.S.A. 56:8-1 to -184.

Plaintiffs base their "verbiage" argument on a number of allegations raised in their complaint

[FIRST COUNT]

12. More particularly, . . . the referenced subdivision application/purported grant contained inaccurate delineations of wetlands on the property, thus falsely inducing the Planning Board of the Township of Old Bridge to issue certain variances ancillary to grant of subdivision aforesaid.

13. Moreover, the wetlands/wetlands transition areas on the contiguous parcels aforesaid, upon information and belief, were disturbed without N.J.D.E.P. consent entailing, amongst other activities, the unauthorized clearing, filling and grading of the said premises.

14. Moreover, pursuant to obtaining state regulations/statute and the nominally named defendant Township's land use element of its Master Plan, the within defendants, Holowiak/Northeast Stucco Systems, Inc., did not continue to maintain an appropriate conservation easement following the location of fresh water wetlands and wetlands buffers as a condition precedent subsequent to the minor subdivision grant aforesaid.

. . . .

[THIRD COUNT]

2. The activities of the within defendants, Holowiak and Northeast Stucco Systems, Inc. . . . in the aggregate were calculated to violate the regulations, statutes and ordinances obtaining in such instances made and provided on a municipal, county and state-wide level.

As for plaintiffs' alternative contention that the judge should have allowed them to amend their pleadings to include an ERA claim, suffice it to say, plaintiffs never made such a request below. Plaintiffs were free, of course, to amend their complaint before defendant's responsive pleading, Rule 4:9-1, but chose not to do so.

(continued)

(continued)

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A-5461-06T3

November 12, 2008