March 31, 2008
ALEXANDER VIECELLI AND POINT ICE CREAM DELIGHTS, INC., PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
PLANNING BOARD OF THE BOROUGH OF POINT PLEASANT, DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND BOROUGH OF POINT PLEASANT, ROBERT FORSYTH INDIVIDUALLY AND AS THE ENGINEER FOR THE PLANNING BOARD OF THE BOROUGH OF POINT PLEASANT, SCHOOR DEPALMA AS ENGINEER FOR THE PLANNING BOARD OF THE BOROUGH OF POINT PLEASANT, CHARLES WILLS INDIVIDUALLY AND AS A MEMBER OF THE PLANNING BOARD OF THE BOROUGH OF POINT PLEASANT, BEVERLY WILLS, AND KEVIN R. BURKE, INDIVIDUALLY AND AS ZONING OFFICER OF THE BOROUGH OF POINT PLEASANT, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, C-226-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2007
Before Judges Parrillo, Sabatino, and Alvarez.
Plaintiffs Alexander Viecelli and Point Ice Cream Delights, Inc., appeal from an order of the Chancery Division which by way of summary judgment dismissed all of their claims against defendants, Planning Board of the Borough of Point Pleasant (Planning Board); Borough of Point Pleasant (Borough); Robert Forsyth, engineer for the Planning Board and employee of Schoor DePalma; Schoor DePalma, a New Jersey corporation, engineers for the Planning Board; Charles Wills, a member of the Planning Board; Beverly Wills; and Kevin R. Burke, a zoning officer for the Borough of Point Pleasant. The matter arises from site plan approvals the Planning Board issued for the construction of a Dairy Queen owned and operated by plaintiffs. After the issuance of the certificate of occupancy (CO), the Planning Board learned that the completed project differed from the approved plans, and it demanded plaintiffs conform the site to the plans.
Plaintiffs filed an action challenging the Planning Board's decision requiring compliance with the approved plans. The Chancery Division denied plaintiffs the relief they requested.
Plaintiffs contend on appeal that the Chancery Division should have recognized that the differences from the site plan are all de minimis, and that the Planning Board is estopped from requiring adherence to the approved site plan because of the issuance of the CO. The Planning Board cross-appeals the denial of counsel fees it sought pursuant to the frivolous litigation statute, N.J.S.A. 2A:15-59.1. We affirm.
The Planning Board approved plaintiffs' site plans on March 21, 2002. As the construction progressed, Schoor DePalma engineers inspected the site for more than sixty-five hours on behalf of the Planning Board. The $5000 cost for this work was passed on to plaintiffs, who reimbursed the Planning Board for the expense.
In March 2004, the CO was issued upon Schoor DePalma's letter to the Borough advising that the completed project was found to be "acceptable and in general accordance with the Planning Board's [r]esolution of [a]pproval." Defendants Charles Wills (Wills) and his wife, Beverly Wills, live next door to the Dairy Queen and years earlier owned the lot on which it is located. Once the Dairy Queen opened they began to complain about the noise generated by its operation. At some point thereafter, Wills was appointed to the Planning Board.
Plaintiffs allege that because Wills was so vocal in his opposition to the operation of the Dairy Queen, Kevin R. Burke, the Point Pleasant zoning officer, issued a municipal summons to plaintiffs "for failure to apply for Administrative approval" for the differences between the completed project and the approved plan. The record before us does not disclose the disposition of the summons, if any. The alleged deviations are:
1. The location of the "menu board," which on the site plan was located on the east side of the building, and now faces the Wills' home to the south of the structure and is some three feet removed from where it was designated on the site plan.
2. The installation of a speaker/receiver for the placement of food orders in the drive-thru area that was not included in the site plan. The orientation of the speaker/receiver is presently towards the Wills' home.
3. The use of six-foot vinyl fencing to surround a dumpster, as opposed to a masonry wall.
4. Additional multiple signage and banners, including a four-foot high Dairy Queen ice cream cone at the entrance and one at the exit as opposed to just a free-standing sign and the façade sign.
Although Wills has not directly participated in any Planning Board decision related to the Dairy Queen, plaintiffs further allege that he has masterminded all the Planning Board's decisions about their business after the approvals were granted. Wills personally filed a disciplinary complaint against the Borough's engineer, Robert Forsyth, regarding the deviations, with the New Jersey State Board of Professional Engineers and Land Surveyors.
On September 1, 2005, plaintiffs filed a lengthy verified complaint in the Chancery Division, as well as an order to show cause, mainly seeking injunctive relief as well as damages under state law and 42 U.S.C.A. § 1983. The order to show cause was heard on September 19, 2005, at which time the chancery judge dismissed those counts of plaintiffs' verified complaint which sought to enjoin the Planning Board from taking further action against the Dairy Queen. Plaintiffs also sought a declaratory judgment that the CO estopped any future governmental action. The chancery judge not only dismissed the claims for injunctive relief, but also dismissed the claims for declaratory judgment without prejudice, as she found that the plaintiffs had not yet exhausted their administrative remedies and needed, in light of the alleged deviations, to return to the Planning Board to obtain an amended site plan approval.
Thereafter, on defendants' application, on November 4, 2005, partial summary judgment was granted dismissing claims for monetary damages against the Wills, the zoning officer, the municipal engineering corporation and its employee, Forsyth, and the municipality, because plaintiffs failed to comply with the New Jersey Tort Claims Act. This dismissal too was without prejudice.
On February 17, 2006, the chancery judge again entertained summary judgment motions, this time from both plaintiffs and defendants. As a result, the chancery judge dismissed the still-outstanding § 1983 claims against the zoning officer with prejudice, because she concluded he enjoyed governmental immunity for any action undertaken in relation to the Dairy Queen. She also dismissed the Wills' nuisance counterclaim against plaintiffs. Because plaintiffs had still not submitted an amended site plan to the Planning Board, the chancery judge remanded the matter back to the Planning Board for its consideration as to whether the deviations from the original site plan existed at the time the CO was issued, whether they were in fact de minimis, and whether an actual amended site plan approval was required.*fn1
On June 20, 2006, the Planning Board determined on the remand that the deviations existed prior to the issuance of the CO. It also determined that the deviations were more than de minimus, and that plaintiffs would either have to submit an amended site plan for approval or comply with the original site plan.
On September 16, 2006, a second judge in the chancery action entertained additional motions for summary judgment. Plaintiffs sought an order that defendants were equitably estopped from enforcing the site plan because of the CO. Defendant Planning Board sought summary judgment compelling plaintiffs' conformance with the site plan. Defendants Wills requested that they be granted partial summary judgment on plaintiffs' estoppel argument and permission to reinstate their counter-claims. This judge denied plaintiffs' motion for summary judgment in its entirety. He granted the Planning Board's motion for summary judgment, finding that either plaintiffs had to submit an amended site plan, or comply with the site plan as approved, in accordance with N.J.S.A. 40:55D-18.
The chancery judge further found the Planning Board was not estopped from requiring compliance with the original site plan despite the issuance of the CO. Although he denied the Planning Board's request to close the Dairy Queen because of non-compliance, he reserved the right of the Planning Board to renew the request if plaintiffs did not act as ordered within the ninety days. The chancery judge granted the Wills' request for summary judgment in part, denying plaintiffs' claim of estoppel. He denied the Wills' request, however, to reinstate their nuisance claim in the Chancery Division, without prejudice to their right to reassert it by way of a counter-claim to plaintiffs' Law Division proceeding. Finally, the judge denied counsel fees as sought by the Planning Board pursuant to the frivolous litigation statute. N.J.S.A. 2A:15-59.1.
Plaintiffs now appeal, raising the following contentions:
POINT I. PURSUANT TO THE APPLICABLE STANDARD OF APPELLATE REVIEW, THE PLANNING BOARD ACTED ARBITRARILY ON REMAND AND THE TRIAL COURT IS NOT ENTITLED TO DEFERENCE AS TO ITS INTERPRETATION OF THE LAW.
POINT II. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT DISMISSED THE VERIFIED COMPLAINT, DENIED APPELLANTS' MOTION FOR SUMMARY JUDGMENT AND GRANTED RESPONDENTS' MOTION FOR SUMMARY JUDGMENT ON THE COUNTERCLAIMS.
POINT III. THE TRIAL COURT ERRED IN GRANTING RESPONDENTS' MOTION TO DISMISS BASED UPON ALLEGED VIOLATIONS OF THE TORT CLAIMS ACT.
We begin our analysis with a recognition of the standards of review applicable to local planning board decisions. A planning board's findings ordinarily will not be overturned unless its actions are arbitrary, capricious or unreasonable. N.Y. SMSA, Ltd. P'ship v. Bd. of Adj. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004) (citing Charlie Brown of Chatham, Inc. v. Bd. of Adj. of Chatham, 202 N.J. Super. 312, 321 (App. Div. 1985)). It is the plaintiffs' burden to demonstrate that the Board's decision was made in error. Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81-82 (2002) (quoting N.Y. SMSA, Ltd. P'ship v. Bd. of Adj. of Bernards, 324 N.J. Super. 149, 163 (App. Div.) certif. denied, 162 N.J. 488 (1999)). We do not substitute our judgment for that of the Planning Board. Fallone Props., L.L.C. v. Bethlehem Plan. Bd., 369 N.J. Super. 552, 561 (App. Div. 2004) (citing Kaufmann v. Plan. Bd. for Warren Twp., 110 N.J. 551, 558 (1988)). We may not suggest a better decision, but only determine if there is a reasonable legal basis in the record for the Planning Board's decision. Ibid. (quoting Davis Enters. v. Karpf, 105 N.J. 476, 485 (1987)).
In this case, the merits of the Planning Board's decisions were presented in the Chancery Division in the procedural context of competing and successive motions for summary judgment. Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Here, there is no genuine issue as to any material fact. All agree that the asserted deviations from the site plan were in place prior to the issuance of the CO and that it was issued upon the Planning Board's engineer's recommendation. Our task is therefore limited to determining whether the Planning Board abused its discretion when it found the deviations from the site plan were not de minimis, and if not, whether the Planning Board is estopped from revoking the CO.
The Planning Board's judgment that the deviations were not de minimis was well within its discretion, and was not arbitrary, capricious or unreasonable. The approved plans did not show a take-out speaker oriented towards a residence, and the actual placement of the speaker and its corresponding noise are a significant deviation. Similarly, if the Planning Board considered signage important enough to have detailed both the size and placement of the two signs on the plan, the deviations by way of multiple signage are not de minimis. Although reasonable minds may differ as to the comparative merits of the material surrounding the dumpster, (i.e., vinyl fencing v. masonry wall) it is up to the Planning Board members to determine whether the modification is of consequence. We will not substitute our judgment for theirs under these circumstances. "A [c]court will not substitute its judgment for that of a board 'even when it is doubtful about the wisdom of the action.'" Cell, supra, 172 N.J. at 81 (quoting Cellular Tel. Co. v. Zoning Bd. of Adj. of Harrington Park, 90 F. Supp. 2d 557, 563 (D.N.J. 2000)).
The original resolution which approved the site plan application clearly stated that the applicants had to resubmit the plan "should there be any deviation from this [r]esolution."
When plaintiffs requested issuance of the CO, their agent certified, apparently in error, that the completed project was built in accord with the approved plans. Accordingly, plaintiffs' uncompromising reliance on the issuance of the CO to support their theory of estoppel is misplaced.
Plaintiffs contend that their circumstances fit two of three hypothetical scenarios of potential estoppel described in Jantausch v. Borough of Verona, 41 N.J. Super. 89, 93 (Law Div. 1956), aff'd, 24 N.J. 326 (1957), and that as a result the CO cannot be withdrawn. The first hypothetical situation occurs when a "permit is regularly issued in accordance with the ordinance." Ibid. Because the CO was not issued in accordance with the resolution approving the site plan, the first situation does not apply here. Id. at 93-94. The second scenario from Jantausch that plaintiffs contend applies to them is one where "the administrative official in good faith and within the ambit of his duty makes an erroneous and debatable interpretation of the ordinance and the property owner in like good faith relies thereon." Id. at 94. In such a circumstance, "reliance upon the permit in the intervening period when an appeal to the board of adjustment may be taken generally does not suffice to sustain a plea of estoppel." Sitkowski v. Zoning Bd. of Adj. of Lavallette, 238 N.J. Super. 255, 262 (App. Div. 1990) (citing Jantausch, supra, 41 N.J. Super. at 95)). Thereafter, the municipality is estopped from withdrawal of the permit.
That second situation is not present here because plaintiffs, though not necessarily acting in bad faith, had full knowledge of the differences between the approved site plan and the subsequently completed project. Although the CO was issued by the Planning Board on their engineer's apparently erroneous recommendation, plaintiffs did not fulfill their obligations either. The authorizing resolution and the application for the CO specifically required plaintiffs to bring any deviations to the Planning Board's attention, and they chose not to do so.
As the chancery judge ruled, the plaintiffs cannot complain that they were not on notice of their obligation to comply strictly with the site plan documents:
This is also in the [c]court's view, not an instance where the doctrine of equitable estoppel can be invoked under . . . [Jantausch v. Borough of Verona] because the regulation here was clear specifically that the site plan again must be developed in accordance with the documents which were originally before the Board and the testimony in support thereof.
In other words, plaintiffs' knowledge and failure to act in accord with the resolution and the application for a CO defeats their claim of equitable estoppel. The Planning Board therefore will not be barred from compelling plaintiffs to modify their completed site, or seek approval of a modified site plan, despite the issuance of a CO. See Twp. of Mahwah v. Landscaping Techs., Inc., 230 N.J. Super. 106 (App. Div. 1989).
Furthermore, as the Planning Board points out, no prejudice inures to plaintiffs from having to conform their project, as built, to the terms of the original site plan. Whether the non-compliance was discovered today or five years ago, the corrective steps they need to take are exactly the same. Plaintiffs cannot complain that they are now in a worse position because of their supposed reliance on the CO. Had they disclosed the deviations before the issuance of the site plan, they would likely have either had to submit an amended application or conform the site.
Additionally, plaintiffs object to the remand procedure followed by the Planning Board in considering whether the deviations were de minimis. The Planning Board's decision was made after a June 15, 2006 public hearing, at which plaintiffs were not permitted to present additional proofs. The Planning Board instead reviewed (1) the transcripts of the original applications and public hearing minutes from January 17 and February 21, 2002, (2) the resolution which considered preliminary and final site plan approval, (3) a copy of the approved plan, (4) the verified complaint in the Chancery Division and all responsive pleadings, (5) the violation letter from the zoning officer, as well as (6) Forsyth's report enumerating the deviations. The Planning Board's review took place after multiple court proceedings, during which plaintiffs fully developed their position that the deviations were minor. We find, as did the motion judge, no error in the Planning Board's decision to proceed in that fashion, as the extensive record before it provided more than adequate elucidation of plaintiffs' position.
Some discussion is necessary as to plaintiffs' remaining contentions. Initially, plaintiffs' Tort Claims Act claims were dismissed, due to violations of the Act's notice provisions, against the Borough and its employees, the Planning Board and its employees and agents, Schoor DePalma and its employees and agents, and Wills in his capacity as a member of the Planning Board. See N.J.S.A. 59:8-8. Plaintiffs have since filed an action for damages against all these entities, as well as Charles Wills and Beverly Wills, in the Law Division. The question of the interim dismissal of those same claims is therefore moot. A "case is moot if the disputed issue has been resolved, at least with respect to the parties who instituted the litigation." Caput Mortuum, L.L.C. v. S & S Crown Servs., Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004) (citing De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring); Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303-04 (1975)). As any decision about the propriety of plaintiffs' notice under the Tort Claims Act has already been resolved by plaintiff's refiling, nothing further is required.
Plaintiffs further contend that the named municipal entities, employees and agents were not acting in their official capacity, but instead were carrying out Wills' vendetta against them and hence are not protected by virtue of governmental immunity. On this record, we cannot say that defendants acted beyond their legal authorization. See N.J.S.A. 59:3-6; N.J.S.A. 59:2-3(a). These comments are not dispositive of whether plaintiffs' claims survive in the Law Division proceeding.
The briefs raise a number of points which do not appear in the parties' notices of appeal and are not properly before the court, and will as a result, not be considered. R. 2:5-1(f), 1266 Apt. Corp. v. New Horizon Deli, 368 N.J. Super. 456, 459 (App. Div. 2004) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994)). This includes the question of the Wills' private nuisance complaint, which in any event presumably will be addressed in the Law Division action which is now pending.
Lastly, the Planning Board seeks on its cross-appeal to recover counsel fees under the frivolous litigation statute, N.J.S.A. 2A:15-59.1. That statute allows for an award of "reasonable litigation costs and reasonable attorney fees" when a party is compelled to defend frivolous claims. N.J.S.A. 2A:15-59.1(a)(1). In order to make an award pursuant to this statute, however, a finding must be made that "[t]he non-prevailing party knew, or should have known, that the complaint . . . or defense was without any reasonable basis in law or equity." N.J.S.A. 2A:15-59.1(b)(2). The frivolous litigation statute must be interpreted restrictively so that citizens are not discouraged from pursuing legitimate claims. DeBrango v. Summit Bancorp, 328 N.J. Super. 219, 226 (App. Div. 2000) (citing McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546, 561-62 (1993)). These plaintiffs had a colorable claim in light of their reliance on the CO. Under the circumstances, the litigation they instituted cannot be considered to have been frivolous. Therefore, the motion judge's ruling will be affirmed.