June 27, 2007
SANDRA THRONE, PLAINTIFF,
DJF REALTY, INC., MARJAC, LLC, AND THE PLANNING BOARD OF THE TOWNSHIP OF WEST ORANGE, DEFENDANTS.
MARJAC, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, AND DJF REALTY, INC., A NEW JERSEY CORPORATION, PLAINTIFFS-RESPONDENTS,
THE PLANNING BOARD OF THE TOWNSHIP OF WEST ORANGE, MAYOR AND COUNCIL FOR THE TOWNSHIP OF WEST ORANGE, AND THE TOWNSHIP OF WEST ORANGE, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. ESX-L-6159-05 and ESX-L-8573-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 28, 2007
Before Judges Parker and C.S. Fisher.
Defendants Township of West Orange (Township) and its Planning Board (Board) appeal from three orders: one entered on April 4, 2006 denying defendants' motion for summary judgment; one entered on May 12, 2006 denying defendants' motion for reconsideration; and a supplemental order entered on May 23, 2006 clarifying paragraph six of the April 4 order. We affirm in part and reverse in part.
Plaintiffs own property located at 466 Prospect Avenue, in West Orange. On November 13, 2002, the Board granted conditional approval of plaintiffs' preliminary and final site plan applications and granted certain variances for improvements on the property subject to a number of conditions. The Board determined that construction did not comply with the specific conditions of the approval and the structure exceeded the footprint set forth in the approved site plan.
In June 2004, the Township issued a stop work order and adopted an ordinance authorizing the Board to revoke the previously granted approval.*fn1 Pursuant to the newly-adopted ordinance, on February 2, 2005, the Board adopted a resolution declaring its prior approval null and void. In the meantime, the Township had referred the matter to the Department of Community Affairs (DCA) for supervision of the construction on plaintiffs' property.
Plaintiffs filed an action in lieu of prerogative writs, seeking (1) to declare the ordinance unconstitutional; (2) to revoke the resolution declaring the approvals null and void; (3) to direct issuance of a Certificate of Occupancy; and (4) to award damages for constructive condemnation. Defendants moved to dismiss and plaintiffs were not ready to proceed. The trial court offered the parties two options: a two-week extension, or voluntary dismissal. Plaintiffs opted to take a voluntary dismissal and were ordered to file a new application before the Board by August 15, 2005. Rather than comply with the order and file a new application, however, plaintiffs filed a second complaint in lieu of prerogative writs seeking essentially the same relief. The parties subsequently cross-moved for summary judgment.
On March 17, 2006, the trial court heard argument and held that
[t]he whole issue involving the compliance or non-compliance with the . . . plans and the variance that was obtained . . . should be . . . decided where it should be decided, which is with the DCA. They are the ones who have [the] approvals over the construction. They are the ones that should decide.
The court noted that the DCA had begun its hearing but stopped because the Board revoked its approval. But, found no authority and law for the Planning Board to revoke this approval. The ordinance allowing the revocation of approval was adopted after the variance and the site plan approval was made in this case.
The applicant had no notice at the time that the application was made that this might even technically apply. There is no reason for me to deal with the ultimate validity or invalidity of the ordinance allowing the Board . . . to revoke a previously granted approval, which, by statute, the plaintiff is entitled to.
In the order memorializing the ruling, the court directed the parties to pursue all issues regarding construction of the premises . . . [and that such issues,] including without limitation, whether the construction violates the previously issued approvals and zoning regulations, remain with the Department of Community Affairs for determination consistent with the existing jurisdiction of the Department of Community Affairs.
The supplemental order entered on May 23, 2006 clarified the court's instruction regarding the DCA, and stated that the April 4 order does not decrease or affect the jurisdiction of the DCA related to the property after the stop work order issued on July 30, 2004.
In this appeal, defendants argue that (1) they are entitled to summary judgment; (2) the court erred in failing to dismiss plaintiffs' challenge to the Board's revocation of its approval; (3) plaintiffs failed to exhaust their remedies; and (4) the complaint is untimely and frivolous. In essence, defendants argue that the Board retains jurisdiction over the issue of whether the construction conforms to the Board's approval and that the Board has the authority to rescind its approval when it finds that the applicant failed to comply with the conditional approval and the site plan.
A municipal governing body has broad powers of enforcement over its zoning ordinances and regulations. N.J.S.A. 40:55D-18. The municipality does not, however, have the authority to rescind the previous grant of a variance or approval. See Morton v. Twp. of Clark, 102 N.J. Super. 84, 89-90 (Law Div. 1968), aff'd o.b. 108 N.J. Super. 74 (App. Div. 1969). Traditional remedies for enforcing zoning laws include the following: (1) a suit seeking injunctive relief; (2) a prosecution of the property owner seeking to impose penalties provided for violation of the local zoning ordinance; and (3) a proceeding to declare the variance forfeited. . . . Since the courts do not look kindly upon forfeitures, the last approach is hardly a viable one. [Allendale Nursing Home, Inc. v. Borough of Allendale, 141 N.J. Super. 155, 161-62 (Law Div. 1976), aff'd on other grounds, 149 N.J. Super. 286 (App. Div. 1977) (citing Walle v. Bd. of Adj, 124 N.J. Super. 244 (App. Div. 1973)).]
In Walle, the zoning board granted a variance, subject to certain conditions to allow the plaintiff to restore an existing building as an auto repair shop. 124 N.J. Super. at 246. Some years later, when it learned that a new tenant was violating the conditions, the Board forfeited the variance. Ibid. Plaintiff brought an action in lieu of prerogative writs. Ibid. The Law Division determined that "[a] forfeiture should not be suffered to exist," and held that the municipality's remedies were limited to "imposing fines and seeking injunctive relief." Id. at 247. We affirmed.
The municipal zoning officer*fn2 is "the proper local authority to institute actions to review violations of the MLUL or local zoning ordinances." Cox, supra, ch. 20-4.2, at 472. (citing Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 53 (1998)). "[T]he zoning officer may file a complaint for the violation in the municipal court," or "the municipality may bring an action in the Superior Court to enjoin the defendant from continuing to violate the ordinance." Ibid.; 40:55D-18.
With respect to the ordinance adopted by the township authorizing the planning and zoning boards to rescind their approvals, the trial judge conducted no fact finding and expressly declined to "decide the ultimate validity or invalidity" of the ordinance because he deemed it unnecessary to do so. Because we have no record to review on this issue, we also decline to rule on the validity of the ordinance. Nevertheless, we offer the observation that, on its face, the ordinance appears to exceed the authority of the municipality in enforcing its zoning laws.
A municipality may refer a matter to the DCA for determination of whether the construction complies with the Uniform Construction Code. N.J.S.A. 52:27D-119 to -141; N.J.A.C. 5:23-1.2. The DCA, however, does not have jurisdiction to determine whether the construction conforms to zoning ordinances, conditional site plan approvals or variances. Ibid. The trial court erred, therefore, in ordering the DCA to determine "whether the construction violates the previously issued approvals and zoning regulations." That portion of the April 4 order and the May 23 order are, therefore, vacated.
To summarize our decision: (1) we affirm the trial court's order declaring the Board's resolution rescinding the approval null and void; and (2) we reverse and vacate that portion of the trial court's orders entered on April 4 and May 23, 2006 directing the parties to pursue the issue of plaintiff's compliance with the conditional site plan approval with the DCA.
As we have indicated above, the municipality retains the authority to pursue its remedies by way of citing plaintiffs for violations of the zoning ordinances in municipal court or seeking injunctive relief in the Superior Court. Cox, supra, ch. 20-4.2 at 472. "The decision as to which method to use is generally made by the municipal attorney and would depend on the kind of violation involved." Ibid. As the court noted in Allendale, "the efficacy of injunctive relief . . . where the enjoined property owners [are] held in contempt and fined" by the Superior Court cannot be "compared to the imposition of a modest fine by a magistrate," if the property owner is found guilty of violating an ordinance. 141 N.J. Super. at 162. But the filing of "a simple complaint in the municipal court" should not be overlooked, Since each day of a continued violation after notice would constitute a separate violation under the terms of most ordinances, [and] the municipal court judge is in a position in most instances to compel the defendant either to cease certain activities or to take action to remove certain structures under penalty of a high fine for failure to do so. [Cox, supra, ch. 20-4.2 at 472.]
The municipality may pursue its remedies in accordance with this opinion.
Affirmed in part and reversed in part.