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MacElree v. Township of Middle Zoning Board

July 29, 2008

JAMES P. MACELREE AND JOHN DRIMAK, JR., PLAINTIFFS-APPELLANTS, AND HAROLD C. WRIGHT, JR., PLAINTIFF,
v.
TOWNSHIP OF MIDDLE ZONING BOARD, TOWNSHIP OF MIDDLE ZONING OFFICER, TOWNSHIP OF MIDDLE SEWER OFFICER, TOWNSHIP OF MIDDLE CONSTRUCTION OFFICER, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION LAND USE REGULATION, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, BUREAU OF TIDELANDS MANAGEMENT, TIDELANDS COMMISSION, AND ISLAND BAY, LLC, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-289-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 8, 2008

Before Judges Skillman, Yannotti and LeWinn.

Defendant Island Bay owns eleven residential lots on Seabreeze Lane, which is located in the Avalon Manor section of Middle Township in Cape May County. These lots are the remaining undeveloped portion of a larger subdivision known as Sterback Harbor.

In 1976, the DEP issued a letter acknowledging that the Avalon Manor development project "was in the state of 'on-site construction including site preparation' on the effective date of the [Coastal Area Facility Review Act (CAFRA), N.J.S.A. 13:19-1 to -21]." Therefore, the DEP concluded that the development was "exempt from the provisions of the Act, and a CAFRA permit will not be required[.]" The DEP has subsequently granted a series of extensions of the CAFRA exemption for this development.

On October 22, 1981, defendant Middle Township Planning Board approved an updated preliminary plat of the Avalon Manor area, and on December 17, 1986, the Board granted final major subdivision approval "for single family homes contingent upon public water and sewer being available[.]" The Board approved the final plat on February 25, 1988, and it was filed on March 14, 1988.

On July 27, 1989, the DEP issued CAFRA Permit No. 88-1016-5, which authorized construction of a sewer line in Avalon Manor, subject to certain conditions. The sewer system was ultimately constructed, and all existing and subsequently constructed homes within Avalon Manor have been tied into the system.

On December 3, 1991, Island Bay purchased the remaining undeveloped lots in the subdivision. Between 1998 and 2005, Island Bay constructed twenty-five homes in the subdivision. However, there are eleven remaining lots on Seabreeze Lane on which there has been no construction.

On July 9, 2003, the DEP sent a letter to Island Bay which stated that Island Bay's construction of single family houses in Avalon Manor continues to be exempt from CAFRA for an additional five years, through December 28, 2008, and that the houses Island Bay proposed to construct on the eleven remaining lots could be connected to the sewer system. However, the DEP conditioned its recognition of Island Bay's continuing exemption from CAFRA upon Island Bay constructing no more than seven houses, rather than the eleven houses it had originally planned to construct.

Subsequently, Island Bay applied to Middle Township for zoning permits for the construction of six houses on nine of the remaining lots.*fn1 The defendant Middle Township zoning officer issued the permits in November 2004 and December 2004. Thereafter, the owners of properties in the vicinity of the Island Bay lots appealed the issuance of those permits to the defendant Middle Township Zoning Board of Adjustment. After an evidentiary hearing, the Board affirmed the Zoning Officer's decision.

On June 6, 2005, three of the property owners brought this action, which they entitled "Complaint In Lieu of Prerogative Writ and Writs of Mandamus, Environmental Rights Action, Enforcement of Deed Restrictions," challenging not only the Zoning Board's affirmance of the Zoning Officer's issuance of zoning permits for construction of six houses but also various past actions by State and municipal officials relating to the Island Bay development. Because many of the actions challenged in plaintiffs' complaint were actions of State administrative agencies and officers, the trial court transferred the case to this court.

Island Bay filed a motion to dismiss the appeal on the grounds that plaintiffs' challenges to the actions of State administrative agencies and officers were untimely and that their claims were barred by a September 4, 2002 consent order resolving prior litigation brought by plaintiffs relating to the Island Bay development. On February 21, 2006, we granted Island Bay's motion and dismissed the appeal as untimely.

Plaintiffs filed a motion for reconsideration in which they argued, among other things, that the part of their complaint that challenged the Zoning Board's affirmance of the Zoning Officer's issuance of zoning permits for the six houses had not been untimely. On April 7, 2006, we granted plaintiffs' motion and entered an order which stated in pertinent part:

The court's dismissal as untimely of appellant's challenge to the DEP's final action of July 9, 2003 is reaffirmed.

Appellant's claims that are not dependent upon the validity of the DEP's final action are transferred back to the Law Division.

Judge Armstrong, sitting in the Law Division, subsequently issued a comprehensive written decision rejecting plaintiffs' challenges to the Zoning Board's final decision, and on December 19, 2006, she entered final judgment dismissing plaintiffs' ...


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