WILLIAM H. JOHNSON, JR v. DOWNE TOWNSHIP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WILLIAM H. JOHNSON, JR.,

Plaintiff-Appellant,

v.

DOWNE TOWNSHIP, DOWNE TOWNSHIP

COMBINED PLANNING/ZONING BOARD,

and KATHRYN L. WEISENBURG,

Defendants-Respondents.

____________________________________

December 7, 2016

Before Judges Sabatino, Nugent and Currier.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket Nos. L-848-10 and L-1127-11.

Laura J. Scruggs argued the cause for appellant.

Edward F. Duffy argued the cause for respondents Downe Township and Downe Township Combined Planning/Zoning Board.

Law Office of Nathan Van Embden, attorney for respondent Kathryn L. Weisenburg (Dean R. Marcolongo, on the briefs).

PER CURIAM

Plaintiff William H. Johnson, Jr., appeals a series of orders of the trial court in this land use case. The rulings have the ultimate consequences of upholding the municipal land use board's decisions to deny plaintiff a zoning permit and bulk variances that would have enabled him to install a mobile home on his presently vacant lot. For the reasons that follow, we affirm, without prejudice to plaintiff's right to bring a future inverse condemnation action against the municipality.

I.

This litigation has a long and complicated procedural history, only a portion of which we detail here. In a nutshell, plaintiff is seeking legal permission to make use of a new mobile home that he had delivered in 2010 to vacant property he owns on Newport Avenue in the Fortescue section of Downe Township.

Plaintiff previously had a mobile home on the property in the early 1990s. That original mobile home was apparently compliant with the township's zoning ordinances in effect at the time. That home was repossessed and removed from the lot some time after 1990.

During the ensuing decade or more, the property was vacant, except for the underground septic system and above-ground concrete pad that remained in place. In the interim, the township's zoning provisions were amended. The updated provisions require any new home in the zone to have a minimum 980-square foot interior. The amended ordinance also increased the setback requirements in the zone. In addition, septic system requirements also changed. A homeowner seeking to improve his or her property in the zone, whether by replacing an existing mobile home or by raising the home to protect against flooding, is now required to upgrade the septic system. According to plaintiff, such a septic upgrade is unduly expensive.

The municipality's local code official initially granted plaintiff a permit for the new mobile home, which plaintiff had purchased and delivered to the site. The permit did not require plaintiff to update his septic system. However, issues arose concerning plaintiff's apparent non-compliance with the updated setback requirements and other ordinance provisions.

A fellow resident who owns property with a mobile home in the same neighborhood, Kathryn Weisenburg, objected to the issuance of the permit to plaintiff. She appealed to the township's combined Planning Board and Zoning Board of Adjustment ("the Board"). In July 2010 plaintiff filed a notice to dismiss Weisenburg's appeal either for lack of standing or as untimely. The Board denied plaintiff's notice, and found Weisenburg was an interested party and that her appeal was timely. Plaintiff filed a complaint in lieu of prerogative writs with the Law Division appealing the Board's decision. The Law Division in April 2011 affirmed the Board's decision, and this court in January 2012 dismissed plaintiff's appeal as interlocutory.

The Board then considered Weisenburg's appeal on its merits. After hearings, the Board ultimately rejected plaintiff's proposed installation of the trailer home and later denied him variance relief.

Plaintiff filed a second complaint in lieu of prerogative writs in the Law Division, seeking on various grounds to overturn the Board's denial. The trial court issued a written decision on April 22, 2013, upholding the Board's denial of a variance to plaintiff under N.J.S.A.40:55D-70(c)(1) sought on alleged hardship grounds, but remanded the matter back to the Board to reconsider his alternative request for variance relief under the positive and negative criteria of N.J.S.A.40:55D-70(c)(2).

After reconsidering the matter on remand and better articulating its reasoning, the Board issued another resolution, again concluding that plaintiff had not met his burden for obtaining a Section (c)(2) variance. Plaintiff again sought review in the trial court.

In a third opinion dated May 7, 2014, the trial court determined that although the record supported plaintiff's argument that his application satisfied the negative criteria for a Section (c)(2) variance, he nevertheless failed to establish before the Board the positive criteria requiring a sufficient demonstration that the proposed use advances the overall objectives of the municipal ordinance, which in part sought to reduce density in this particular zone. The trial court rejected plaintiff's argument that the municipality was equitably estopped from voiding the permit that the zoning officer had initially issued.

Plaintiff now seeks review of the trial court's May 2014 order, in addition to its earlier ruling on the issue of Weisenburg's right to object to his original permit.

II.

Plaintiff raises numerous issues on appeal. The principal issues that warrant comment in this opinion may be reorganized and rephrased as follows: (1) whether Weisenburg had standing to challenge the grant of a zoning permit and, if so, was her challenge timely; (2) whether plaintiff needs any variances to install his new home on the site and, even if he does, did the trial court err in not finding that the Board's denial of variance relief to plaintiff was arbitrary, capricious, or unreasonable; (3) whether the Board failed to articulate sufficient reasons for denying the requested Section (c)(2) variance in a timely manner, and, if so, does that compel default approval of plaintiff's application; and (4) whether the Board was estopped from voiding the originally-issued permit.

Having considered these and plaintiff's other contentions in light of the record, the governing law, and the appropriate scope of review, we affirm the trial court's dismissal of his complaint for relief, substantially for the cogent reasons detailed in Judge Timothy G. Farrell's written decisions. We add several comments by way of amplification.

As an overarching consideration, we must be mindful that the scope of judicial review of a local land use board's determinations is generally limited. "A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable." Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965); see also Ten Stary Dom P'ship v. Mauro, 216 N.J.16, 33 (2013). Courts afford substantial deference to such land use bodies because they "are comprised of local citizens who are far more familiar with the municipality's characteristics and interests and therefore uniquely equipped to resolve such controversies." First Montclair Partner, L.P. v. Herod Redevelopment I, L.L.C., 381 N.J. Super. 298, 302 (App. Div. 2005). Moreover, where, as here, a local land use board denies rather than grants variance relief from the municipal ordinance, we accord even greater deference and the property owner bears a heavier burden to set aside the board's decision. See, e.g., CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of Adjustment, 414 N.J. Super. 563, 578 (App. Div. 2010); Saddle Brook Realty, LLC v. Twp. of Saddle Brook Zoning Bd. of Adjustment, 388 N.J. Super. 67, 75 (App. Div. 2006).

That said, we are also cognizant that we need not give any deference to a land use board's determinations on questions of law, such as the legal issues of the objector Weisenburg's standing and the timeliness of her challenge. Rather, we consider such legal questions de novo. See, e.g., Fallone Properties, L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004); Grancagnola v. Planning Bd. of Verona, 221 N.J. Super. 71, 75 (App. Div. 1987).

A.

We agree with the trial court's determinations that Weisenburg had standing to object to the installation of plaintiff's proposed new mobile home, and that her challenge was timely presented to the Board. As a fellow mobile home and property owner in the same neighborhood as plaintiff, Weisenburg was sufficiently "interested" in, and "aggrieved" by, plaintiff's alleged non-compliance with the updated zoning requirements to enable her challenge to the permit. See N.J.S.A.40:55D-4 (defining an "interested party" in pertinent part as a person "whose rights to use, acquire, or enjoy property is or may be affected by any action taken" under the Municipal Land Use Law ("MLUL")); see alsoHoward Sav. Inst. v. Peep, 34 N.J. 494, 499 (1961) (describing an "aggrieved" party as one whose "personal or pecuniary interest or property right [is] adversely affected by the judgment in question").

The MLUL specifically confers upon "all interested parties" the right to appeal a zoning or land use determination. SeeN.J.S.A. 40:55D-72. Judge Farrell correctly reasoned that if the zoning permit had, in fact, been improperly issued to plaintiff without necessitating his compliance with ordinance requirements, then his neighbor Weisenburg's rights would be negatively impacted. That impact would include the dilution of local standards for the neighborhood and the potential diminution of property values in Fortescue.

Judge Farrell also correctly rejected plaintiff's contention that Weisenburg's challenge was not timely filed with the Board within the twenty days prescribed by N.J.S.A.40:55D-72. There was substantial credible evidence presented, despite plaintiff's contentions to the contrary, that Weisenburg did not learn that the permit had been granted to plaintiff until July 13, 2010. Hence, her challenge filed on July 28, 2010 was within the statutory twenty-day period.

B.

We are likewise persuaded that the trial court appropriately upheld the Board's denial of Section (c)(1) and (c)(2) variances to plaintiff. The Board's ultimate determinations on those requirements are supported by substantial credible evidence in the record and comport with the applicable law.

As a threshold point of law, plaintiff was required to adhere to the updated requirements of the zoning ordinance adopted since the time that his previous mobile home was removed from the property years ago. The underlying facts and chronology of events reflect that, as a matter of law, the use of the property was abandoned for over a decade until plaintiff had a new mobile home delivered to the site in 2010. Although legal principles of abandonment were not specifically applied by the Board in the proceedings below, we must be guided by those principles of law here.

"Because nonconforming uses are inconsistent with the objectives of uniform zoning, the courts have required that consistent with the property rights of those affected and with substantial justice, they should be reduced to conformity as quickly as is compatible with justice." Town of Belleville v. Parrillo's, Inc., 83 N.J. 309, 315 (1980). "In that regard the courts have permitted municipalities to impose limitations upon nonconforming uses." Ibid. "[T]he actual abandonment of a nonconforming use is fatal to its continuance." Borough of Saddle River v. Bobinski, 108 N.J. Super. 6, 16 (Ch. Div. 1969). Temporary non-use does not constitute abandonment. Children's Inst. v. Verona Twp. Bd. of Adjustment, 290 N.J. Super. 350, 357 (App. Div. 1996).

"The traditional test of abandonment requires the concurrence of two factors: (1) an intention to abandon, and (2) some overt act or failure to act which carries a sufficient implication that the owner neither claims nor retains any interest in the subject matter of the abandonment." Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment of Trenton, 410 N.J. Super. 255, 265 (App. Div. 2009), certif. denied, 202 N.J. 347 (2010) (citing S & S Auto Sales, Inc. v. Zoning Bd. of Adjustment for Stratford, 373 N.J. Super. 603, 613-14 (App. Div. 2004). The prolonged non-use of a property for its purpose, combined with a failure to maintain the structures on the property during the period of nonuse, fulfills these requirements. Villari v. Zoning Bd. of Adjustment of Deptford, 277 N.J. Super. 130, 137 (App. Div. 1994).

This court's opinion in Motley v. Borough of Seaside Park Zoning Bd., 430 N.J. Super. 132 (App. Div.), certif. denied, 215 N.J.485 (2013),1which was published after the Board's original denial of relief to plaintiff but before the trial court's 2014 final judgment, is particularly instructive and factually on point here. In Motley, the homeowner had dismantled an existing residence down to its foundation. Id. at 138-39. We held that the degree of removal in that case amounted to an abandonment of the use, and thus required the owner to comply with current zoning requirements or obtain variances from them. Id.at 148. We noted that "the test of whether a nonconforming use or structure may be restored or repaired is whether there has been some quantity of destruction that surpasses mere partial destruction." Id.at 144-45. We further noted that the "rule of thumb" with respect to destruction of residential structures is that if the foundation and at least two walls remain, the destruction is only partial. Id. at 146-47; seeCox & Koenig, N.J. Zoning & Land Use Admin. 27-4 at 588 (2015).

In this case, the entire original mobile home was removed from plaintiff's property. All that remained after the home's removal were concrete slabs and a septic system. The slabs are not considered permanent fixtures, as indicated by N.J.S.A.40:55D-102 (defining nonpermanent foundations as "any foundation consisting of nonmortared blocks, wheels, concrete slab, runners, or any combination thereof, or any other system approved by the commissioner for the installation and anchorage of a manufactured home on other than a permanent foundation"). The "foundation" in this case is not permanent. All that otherwise remained after the mobile home was repossessed was the underground septic system.

We reject plaintiff's contention that the ongoing presence of an underground septic system suffices to prevent the abandonment of a parcel, when the structure above the ground has been removed or destroyed. Just as the presence of the mere foundation to the dwelling in Motleydid not allow the perpetuation of a non-conforming use, the continued presence of the underground septic system to support a new future dwelling on site likewise must fail. Hence, plaintiff is obligated, absent variance relief, to meet the current ordinance's setback and other requirements.

We concur with the trial court that the record before the Board adequately supports its rejection of plaintiff's application for a hardship variance under subsection (c)(1). The Board and the trial court recognized the financial burdens involved because plaintiff's new mobile home cannot be connected to the existing septic system without violating the setback requirements. Even so, that claimed hardship is essentially of plaintiff's own creation by purchasing a home, without prior township approval, which cannot be placed on the site without violating the zoning requirements.

The trial court also had an ample basis to uphold the Board's denial of a (c)(2) variance. We agree with Judge Farrell's analysis that, while plaintiff's use does not appear to "substantially impair" the intent and purpose of the township's zoning ordinance, plaintiff has failed to demonstrate that the purposes of the MLUL would be positively "advanced" by granting him variance relief. SeeN.J.S.A.40:55D-70(c)(2). Plaintiff has not shown, under the positive criteria of the statute, that the grant of variances to him will "actually benefit the community" and represent "a better zoning alternative for the property." Kaufmann v. Planning Bd. of Warren, 110 N.J.551, 563 (1988). Plaintiff did not meet his heavy burden of proving that the benefits of deviating from the setback and other bulk requirements "substantially" outweigh the potential detriments of a loss of privacy and quiet enjoyment to nearby neighbors. Id. at 565; see also Price v. Himeji, LLC, 214 N.J.263, 292 (2013) (reiterating the "substantially outweigh" standard).

C.

We need not say much about plaintiff's contention that the trial court should have granted him relief by default because the Board did not provide adequate reasons for denial in its original decision prior to the court's remand. His reliance upon the default provisions in N.J.S.A. 40:55D-10.4 for situations of "failures to act" by local land use boards is misplaced here. "The evil which the automatic approval provisions [in N.J.S.A. 40:55D-10.4] were designed to remedy was municipal inaction and inattention. We are persuaded that this legislative purpose would be unjustifiably distorted in a manner patently subversive to the public interest if the automatic approvalmechanism were to be applied in a mechanical fashion." Allied Realty v. Upper Saddle River, 221 N.J. Super. 407, 418 (App. Div. 1987), certif. denied, 110 N.J.304 (1988).

There was no municipal "inaction" or "inattention" in this case. The Board discussed both the (c)(1) and (c)(2) variances at the hearings. While the Board's initial resolution did not fully analyze the application under (c)(2), similar to the circumstances in Allied Realty, supra, the "overriding and critical fact is that the Board made its determination and rendered its decision[.]" Id.at 418. Even if the Board's initial review of (c)(2) was inadequate, the trial court correctly remanded for further analysis and the Board did so. Plaintiff is not entitled in these circumstances to any relief by default.

D.

Lastly, we readily sustain the trial court's conclusion that plaintiff cannot gain relief under principles of equitable estoppel. The application of equitable estoppel to governmental agencies is generally disfavored. Berg v. Christie, 225 N.J. 245, 280 (2016). Moreover, although there are sympathetic aspects to plaintiff's apparent inability to make use on the site of the new mobile home he decided to purchase, the situation is not so extraordinary to amount to "very compelling circumstances . . . where the interests of justice, morality and common fairness clearly dictate that course." Palatine I v. Planning Bd. of Montville, 133 N.J.546, 560 (1993), overruled on other grounds, D.L. Real Estate Holdings, L.L.C. v. Point Pleasant Beach Planning Bd., 176 N.J.126, 133 (2003).

Our affirmance of the trial court's decisions does not, however, foreclose plaintiff from all potential avenues for redress. Nothing in the present case precludes plaintiff from pursuing a future action against the municipality for inverse condemnation. In such an action, plaintiff would have the burden of demonstrating that the adoption of more stringent land use requirements and the denial of variance relief has effectively zoned his property "into inutility," seeCommons v. Westwood Zoning Board of Adjustment, 81 N.J.597, 607 (1980), and deprived the property of all productive or beneficial use. We need not comment here on plaintiff's prospects for success in such a future inverse condemnation action, other than to note that this unfortunately-lengthy litigation which concludes with no variance relief being afforded shall be evidence of his attempt to exhaust administrative remedies. Toll Bros., Inc. v. N.J. Dept. of Envtl. Prot., 242 N.J. Super. 519, 531 (App. Div. 1990) (treating the exhaustion of administrative remedies as a prerequisite to an inverse condemnation action).

Plaintiff's remaining arguments lack sufficient merit to warrant discussion in this opinion. R.2:11-3(e)(1)(E).

Affirmed.

1 At our request, counsel provided to us supplemental letter-briefs addressing Motley after the oral argument on appeal.