On appeal from Superior Court of New Jersey, Law Division Somerset County, Docket No. L-1079-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 10, 2008
Before Judges Parrillo, Lihotz and Messano.
Plaintiff Lance Austenberg appeals from the Law Division order dismissing his complaint without prejudice. Although we affirm the dismissal of the claims alleged against the municipal defendants,*fn1 we reverse the portion of the Law Division order that dismissed plaintiff's tort claims against the non-municipal defendants. Accordingly, counts two and five of plaintiff's complaint are reinstated, and this matter is remanded for further proceedings.
The facts are not disputed. Plaintiff owns residential property located at Block 41, Lot 30, in the Township of Bedminster (Township), which he purchased on August 1, 2000. The real property adjacent to plaintiff's residence was owned by defendant Michael Anthony Gianetti (the Property).*fn2 Peter Gianetti, Michael's son, operates defendant Central Jersey Construction Division, Inc. a/k/a CenJer Construction (CenJer). CenJer and other commercial enterprises owned by the Gianettis use the Property.*fn3 The Gianettis also lease portions of the Property to store commercial vehicles and other commercial equipment. The Property is located in an R-3 residential zoning district. Its commercial use is authorized by a pre-existing non-conforming use variance.
Disputes between the Gianetti defendants and the Township regarding the approved use of the Property are longstanding. In the late 1980s, Gianetti Excavators, Inc., the predecessor in interest to CenJer, was cited by the Township for zoning violations. At that time, the Gianetti defendants leased the Property. A settlement agreement was reached to set the parameters of the Gianetti defendants' commercial use (1988 Agreement). The only evidence of the settlement is found in an August 11, 1988 letter between counsel for the parties.
The 1988 Agreement required the Gianetti defendants to: limit equipment storage to two blasting mats and three bulldozer blades; remove two trailers, vehicles, metal construction debris, used tires, and any other unwanted construction items; deplete the existing wood pile and prospectively cease wood storage; relocate iron tanks to the real lot line behind the building; provide a one-inch thick layer of three-quarter inch stone on the front parking and driveway areas; and seed the northern side of the building, creating a grassy buffer not available for parking or storage. Additionally, the Gianetti defendants agreed to prepare and send to the Township Engineer a "plot plan" depicting the dimensions of the building, side and rear set-backs, parking, and landscaped areas.
In 1995, the Township warned the owner the Gianetti defendants "had illegally expanded the non-conforming use at the Subject Property." At some point thereafter, Michael Gianetti purchased the Property.
In September 2000, plaintiff met Peter Gianetti at the Property. The two "walked the [P]roperty" to assure plaintiff that the Gianetti defendants' use did not encroach upon plaintiff's realty. Later in 2001, the Township filed a complaint against Michael Gianetti, citing municipal zoning violations and breach of the 1988 Agreement. Following trial, the Township Municipal Court held Gianetti impermissibly "expanded the non-conforming use of the Property by . . . increasing the number of commercial vehicles kept on the Property[.]" Gianetti appealed.
Meanwhile, in 2003, plaintiff attended a Township Committee (Committee) meeting. Plaintiff aired his perceived concerns regarding the improper expansion of the permitted commercial use of the Property by the Gianetti defendants.
On November 15, 2004, the Township, through its governing body, the Committee, entered into a Deed Restriction Agreement with Michael Gianetti (2004 Agreement). The Agreement was designed to settle the ongoing litigation and "provide a final and conclusive writing as to the limits of commercial activity [o]n the Property and to identify measures to screen the Property from view." To this end, the 2004 Agreement mandated that the Property conform to a site plan drawn by the Township Zoning Officer (TZO), which required: installation of fencing on the northern and eastern portions of the Property line; construction of decorative concrete walls on the eastern side of the Property line; extension of the graveled portion along the southern edge of the Property; restriction of parking to specified areas of the Property; limitation of the number of vehicles on-site to fifty; designation of mandatory storage of work related materials to the western side of the Property; planting trees, vegetation, and landscaping to partially shield the commercial use from view; and removal of all abandoned vehicles and debris.
The 2004 Agreement was introduced at the Committee's regularly scheduled meeting on November 15, 2004 at which time it was accepted and formally executed. Subsequently, Michael Gianetti dismissed his municipal court appeal.
On January 24, 2005, the Gianetti defendants requested an extension of time to comply with the terms of the 2004 Agreement. During its February 7, 2005 meeting, the Township agreed and adopted a ...