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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...