LOUISE McLAUGHLIN v. BOROUGH OF AVALON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0777-08T10777-08T1

A-0824-08T1

LOUISE McLAUGHLIN,

Plaintiff-Respondent,

v.

BOROUGH OF AVALON, a

municipal corporation, and

OMP INVESTMENT, L.L.C.,

Defendants-Appellants.

__________________________________

LOUISE McLAUGHLIN,

Plaintiff-Respondent,

v.

BOROUGH OF AVALON

PLANNING/ZONING BOARD,

Defendant-Respondent.

________________________________________________________________

 
Telephonically argued November 9, 2009 -

Decided

Before Judges Carchman, Parrillo and

Lihotz.

On appeal from the Superior Court of New

Jersey, Law Division, Cape May County,

Docket Nos. L-058-08 and L-259-08.

Stephen D. Barse argued the cause for

appellant Borough of Avalon (Gruccio, Pepper,

DeSanto & Ruth, P.A., attorneys; Mr. Barse,

on the briefs).

Vincent L. LaManna, Jr. argued the cause for

appellant OMP Investment, LLC.

Robert A. Feinberg argued the cause

for respondent Louise McLaughlin.

PER CURIAM

In these consolidated appeals, defendant Borough of Avalon (the Borough) and defendant OMP Investment, LLC (OMP) appeal from that portion of a judgment of the Law Division concluding that a pool constructed on premises owned by OMP failed to comply with a Borough ordinance. We conclude that plaintiff Louise McLaughlin's challenge to the zoning officer's determination that the pool was conforming was time barred. Accordingly, we reverse.

We provide an expansive review of the procedural history of this dispute. Defendant OMP is the owner of premises located on Ocean Drive in Avalon. In the course of constructing a residence on the property, OMP received a zoning permit for the construction of a pool on July 26, 2007. The pool construction was proposed for the rear yard of the property, which fronts on the bay. The construction of both the residence and the pool continued unabated during the next few months when on October 2, 2007, plaintiff, who owns property immediately adjacent to the OMP property, through her son, Frank McLaughlin, appeared before defendant Avalon Planning/Zoning Board (the Board) during the open segment of a public session to complain about the pool construction. His specific complaint was that the pool was not

being constructed in conformance with the Borough ordinances.

He made the following statements:

. . . I want to have you hear my - - our grief that we have. And once again, if we've got these ordinances - - the pool decking, it's described here, shall be at grade level. However, the coping around the edge of the pool may extend no more than two inches above grade. And here's the reason I wanted to come here tonight. I took a tape measure over there. The designation, and you may know this, you may not know this, for a swimming pool to be built, if it's an in ground pool, it must be 15 feet from the bulkhead. They built a pool that was 15 - - I'm sorry, it was ten feet from the bulkhead. The construction office told them rip it out, it's too close. So, now they've built an in ground pool that's above the ground.

. . . .

Here we've got this rule on the books that say [sic] here is a pool that must be 15 feet, it must be no more than two inches above grade. This thing, like I mentioned, is 63 inches above grade and it's going to have a fence on top of it.

. . . .

. . . I'm reading our ordinance here. It says no more than two inches above grade.

. . . .

And this is 63 inches above grade. It's not even close.

[(Emphasis added.)]

In response to plaintiff's complaints, the Board directed him to the zoning official and then described the appeals process:

[I]f [the zoning official] will not give you the satisfaction you're looking for, he will give you the remedy to get around it. And the remedy, by the way, is to come here and get us to do an interpretation. But we can't do that until [the zoning official] requests it.

. . . .

[To get an interpretation,] [y]ou have to file an application with the Board, pay an application fee and escrow fees, and seek - - come before us for a hearing.

In response to his complaints, plaintiff was referred to the Borough's zoning official, Jeff Hesley.

Hesley sent plaintiff an October 12, 2007 letter, which stated:

In response to your complaint concerning the above referenced property, I have reviewed the zoning permit for this project. The pool meets the minimum requirements of the zoning ordinance for setbacks and lot coverage. The pool is considered an above ground pool and also meets CAFRA requirements. Accordingly, I consider the pool to be conforming. If you disagree with this determination, you may appeal my decision to the Avalon Planning/Zoning Board.

Rather than appeal, plaintiff engaged in an extensive letter-writing campaign. In a November 8, 2007 letter to the Borough Business Administrator, he detailed his complaints (including substantial technical references), expressed his disagreement with Hesley's interpretation of the ordinance and argued that the pool is in violation of an ordinance requirement that "[a]ll proposed pools shall not protrude above the maximum permitted grade." Noting that this pool was 63 inches above grade, plaintiff concluded, "[w]e do not feel we should have to go to a hearing to the Planning and Zoning Board, and pay for legal representation, and a $400.00 application fee to have Avalon enforce its ordinances."

The Business Administrator responded and advised plaintiff that the issues raised were properly within the jurisdiction of the Zoning Official. He reiterated that the proper course of action was an appeal to the Planning/Zoning Board. Undaunted, plaintiff did not appeal but on December 12, 2007 wrote another letter to Hesley, again setting forth his technical objections to the pool. He noted in his letter that the ordinances provided that "pool decking shall be at grade level, however the coping may be no more than 2" above grade. The pool in question is 67" above grade and is illegal according to Avalon's ordinances."

In a December 21, 2007 letter, plaintiff's counsel advised the Borough's Mayor and Solicitor of his representation of the McLaughlin family and again outlined their grievances regarding the subject pool. The Borough Solicitor responded in a December 28, 2007 letter, which summarized the myriad interactions that plaintiff had engaged in with various Borough officials regarding this matter and stated that:

I have repeatedly tried to explain to Mr. McLaughlin, including during our meeting, that the administration simply does not have the authority under any State statute or Borough ordinance to reverse the decision of the zoning official. The Borough zoning ordinance provides an administrative remedy which permits an individual dissatisfied with the decision of the zoning official to appeal that decision to the zoning board. Mr. McLaughlin seems unwilling to accept this limitation on the authority of the Mayor and Administrator.

Finally, on January 7, 2008, plaintiff appealed to the Board. Interestingly, the appeal to the Board stated that it was based on "the final decision of the Zoning Officer, received December 17, 2007 . . . ." The Board's counsel responded and noted that N.J.S.A. 40:55D-72 contains a twenty-day limit on the filing of an appeal from an action of a zoning official. He advised plaintiff that the time began to run on October 12, 2007, the date of the zoning official's letter to plaintiff, and expired on November 1, 2007. Nevertheless, counsel agreed to place the matter on the agenda for a March Board hearing for the purpose of establishing whether the Board had jurisdiction.

Plaintiff's appeal to the Board was considered on March 3, 2008, for the limited purpose of establishing whether the appeal of the zoning official's decision was time-barred. The Board determined that the appeal was untimely and that the Board lacked jurisdiction to consider the appeal. In an April 1, 2008 memorializing resolution, the Board concluded that "the applicant had sufficient time to file his notice of appeal but did not file the notice of appeal within the time frames set forth in N.J.S.A. 40:55D-72 or within any expanded time frame which would have been permitted pursuant to New Jersey Case Law . . . ."

In the Law Division, on a motion for summary judgment, the judge found:

any claims respecting the determinations that the zoning officer made in the October the 12th letter are time-barred. . . . with respect, however, to any subsequent claims for violation of the ordinance that were not included in those determinations, including without limitation, the grading and the pitch claims and whatnot, they would not be time-barred by the October the 12th letter.

At trial, despite the zoning official's letter of October 12, 2007, plaintiff's comments at the public meeting and his various correspondence, the judge concluded that the coping issue was not time-barred. He then applied the ordinance in accordance with its plain meaning:

There is no dispute that the coping in this construction extends more than 2 inches above grade. So by the literal language of the ordinance, the pool was improperly constructed or, more accurately said, the pool construction does not comport or comply with the language of the ordinance. . . . The suggestion, rather, is [that the two-inch coping requirement] doesn't apply, notwithstanding the words, because this construction is not subject to the ordinance because it's not an in-ground pool. The ordinance does not undertake to define an in-ground or an above-ground pool . . . . And if that's what they meant to distinguish, they should have said so. They didn't . . . . The ordinance says what it says and means what it means, as far as I'm concerned, whether it's an inground pool or it isn't . . . . There's no reason in this record not to read the ordinance as it's written and apply it as it's written and, in that respect, the pool does not comply with the ordinance with respect to coping.

The judge ordered that defendant had ninety days to make the pool compliant with the ordinance or remove it.

OMP and the Borough now appeal challenging both the failure to find that plaintiff's appeal was not time-barred and the merits of the compliance with the ordinance. We consolidated the appeals and stayed the trial judge's judgment.

We address the issue of whether plaintiff's appeal was time-barred, for that issue is dispositive.

The positions of the parties are simply stated. The trial court determined that any issues not addressed in Hesley's October 12, 2007 letter remained timely. Specifically, plaintiff asserts that the underpinning of the trial judge's decision - the coping issue - was not time-barred since it was not addressed in the zoning official's letter.

Additionally, plaintiff states that on the date of the zoning official's letter, the "final grade had not yet been constructed." Plaintiff contends that the final grade of the lot was not completed until March 2008, and that until that time, the height of the coping could not be determined.

The Borough counters that "not only was it possible for Plaintiff to determine whether the pool and coping were more than two inches above grade" prior to the completion of the lot's final grading, but "Plaintiff and her son, Frank McLaughlin actually did make that determination as of October 2, 2007 . . . ." The Borough argues that plaintiff cannot claim that the pool was in violation of the two-inch coping requirement at the October 2, 2007 Board hearing and then claim at trial that a determination of whether the pool violated the ordinance could not be made until final grading.

Due to its "'peculiar knowledge of local conditions,'" the factual determinations of a zoning board of adjustments are "entitled to substantial deference." New York SMSA, L.P. v. Bd. of Adjustment of Tp. of Weehawkin, 370 N.J. Super. 319, 331 (App. Div. 2004) (quoting Pierce Estates Corp., Inc. v. Bridgewater Tp. Zoning Bd. of Adjustment, 303 N.J. Super. 507, 514 (App. Div. 1997)). The Board's actions will not be reversed unless they were arbitrary, capricious or unreasonable, Jock v. Zoning Bd. of Adjustment, Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005), but its legal determinations are subject to de novo review by the trial court. New York SMSA, supra, 370 N.J. Super. at 331 (citations omitted). However, both the trial court's and the Board's interpretation of "the law and the legal consequences that flow from established facts are not entitled to any special deference[,]" Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) (citations omitted), and are subject to de novo review. Wilson v. Brick Tp. Zoning Bd. of Adjustment, 405 N.J. Super. 189, 197 (App. Div. 2009).

Here, the Board concluded that plaintiff was acutely aware of the issues related to the construction of the pool (1) during the Summer of 2007; (2) at the public portion of the hearing on October 2, 2007; and (3) at the time of plaintiff's receipt of the zoning official's October 12, 2007 correspondence. These findings supported the Board's determination that plaintiff failed to file a timely notice of appeal under N.J.S.A. 40:55D-72.

We review de novo, the application of these facts to the statute, and we are satisfied that this analysis is supported by the record. We also address de novo, the trial judge's analysis as to the timeliness of plaintiff's appeal. See Manalapan Realty, supra, 140 N.J. at 378. N.J.S.A. 40:55D-72a, states in relevant part:

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.

This time limitation was created to "insulate the recipient of a building permit or other favorable disposition from the threat of unrestrained future challenge." Sitkowski v. Zoning Bd. of Adjustment of Borough of Lavallette, 238 N.J. Super. 255, 260 (App. Div. 1990).

"[T]he time for an appeal runs from the date an interested party knows or should know of the action of an administrative officer . . . ." Ibid. (citing Trenkamp v. Twp. of Burlington, 170 N.J. Super. 251, 269 n.1 (Law Div. 1979)). Plaintiff became aware of the pool's construction subsequent to the commencement of the July 2007 construction, and at his appearance at the October 2, 2007 Board hearing, he was fully versed in both his understanding of the relevant ordinances and the course of the pool construction.

The critical issue both for plaintiff and ultimately for the trial judge was the coping. The judge ruled that the swimming pool violated the Borough ordinance because its coping was more than two-inches above grade. The judge found that the issue was not addressed; that finding is not supported by the record. At the October 2, 2007 Board hearing, plaintiff raised the issue of the coping. The absence of a specific reference to the coping in Hesley's October 12, 2007 letter is irrelevant. Plaintiff's focus was on the zoning officer's finding of compliance.

Plaintiff was repeatedly advised of the appropriate methodology to challenge the officer's decision. All of these efforts were ignored. Plaintiff can not be rewarded for his attempt to bypass the appropriate avenues of redress. His view that he did "not feel [he] should have to go to a hearing to [sic] the Planning and Zoning Board, and pay for legal representation, and a $400.00 application fee to have Avalon enforce its ordinances[,]" provides no refuge from limitation provisions.

This was not a case where plaintiff was lulled into a sense of security or misled. At every juncture, he was advised by government officials of the proper course of action; he chose another route and is now barred from relief.

We conclude that the "coping" issue was included in the zoning officer's rejection of plaintiff's challenge to the approval. We further conclude that the judge erred by parsing out that issue as remaining extant and forming the basis for relief. The coping issue was time-barred under N.J.S.A. 40:55D-72a, should not have been considered by the trial judge, and judgment should have been entered dismissing plaintiff's complaints.

Our resolution of this issue makes it unnecessary to address the remaining issues raised by the parties.

 
We reverse that portion of the August 28, 2008 judgment, which granted relief to plaintiff and order the complaints dismissed.

For ease of reference, we refer to Frank McLaughlin as plaintiff.

(continued)

(continued)

14

A-0777-08T1

January 15, 2010