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Austenberg v. Gianetti


October 14, 2008


On appeal from Superior Court of New Jersey, Law Division Somerset County, Docket No. L-1079-06.

Per curiam.


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 resolution granting an extension until May 1, 2005.

On March 6, 2006, plaintiff attended a Committee meeting after he filed a complaint with the Department of Environmental Protection regarding "pollution" originating from the Property. Plaintiff also alleged the Gianetti defendants committed ongoing zoning violations. The Committee referred plaintiff's concerns to the TZO, who visited the Property and found no violations.

On July 24, 2006, plaintiff initiated this action. In his complaint, plaintiff sought to set aside the 1988 and 2004 Agreements, arguing they are void ab initio as impermissible zoning by the Township or Committee. The first count entitled, "Set Aside Committee Approval of a Zoning Matter Without Adequate Notice or Hearing,"*fn4 asserted the 2004 Agreement illegally expanded the non-conforming use, and the Committee lacked the authority to approve the 2004 Agreement.

Additionally, plaintiff requested an order of mandamus to require the Township to compel the Gianetti defendants to return the Property to its 1988 condition, and to restrain future illegal expansion of the nonconforming use (count four). As to the Gianetti defendants, plaintiff asserted public and private nuisance claims (count two); sought abatement of repeated and continuing zoning and other municipal ordinance violations (count three); harassment and emotional distress (count five).

The Gianetti defendants filed a counterclaim against plaintiff and a third-party complaint against plaintiff's wife. Those claims alleged harassment, defamation, and tortious interference with existing economic opportunities.

The Township moved for summary judgment seeking to dismiss count one of plaintiff's complaint. It argued the requested relief was untimely, as the action was not commenced within forty-five days from the date of the municipal resolution adopting the 2004 Agreement. N.J.S.A. 10:4-15. As to any tort claims alleged, the Township argued plaintiff failed to comply with the notice and limitations periods delineated by the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-2 to -12-3. See N.J.S.A. 59:8.8(a) and N.J.S.A. 59:8.9.

The Committee filed a summary judgment motion for dismissal of count four, arguing the adoption of the 2004 Agreement to settle the ongoing litigation was proper and authorized. Additionally, the Committee raised the lack of notice required by the Act.

Plaintiff's response challenged whether the activities conducted on the Property were permissible and argued the 2004 Agreement improperly expanded the allowed non-conforming use.

Plaintiff also presented a jurisdictionally-based argument that the Committee's adoption of the 1988 and 2004 Agreements usurped the authority vested solely in the Township Board of Adjustment. Further, plaintiff suggested he, as an adjacent property owner, did not receive proper notice of the zoning decisions, tolling any limitations period. Plaintiff filed a separate motion to dismiss the Gianetti defendants' affirmative pleadings due to discovery lapses.

Following argument on the municipal defendants' motions, the judge dismissed plaintiff's complaint in its entirety. Without distinguishing between the municipal and non-municipal defendants, the motion judge stated: "I am going to dismiss the complaint without prejudice. I think this is really a prerogative writ action and, therefore, I am dismissing the entire complaint."

We strain to reconcile the motion judge's comments as they relate to the substantive matters presented. Generally, when a trial court has not made adequate findings of fact, the appellate court will remand for the trial court to make the necessary factual findings. Foley, Inc. v. Fevco, Inc., 379 N.J. Super. 574, 588-89 (App. Div. 2005); Barnett & Herenchak, Inc. v. N.J. Dep't of Transp., 276 N.J. Super. 465, 470-73 (App. Div. 1994). However, if the appeal turns on an interpretation of the law and the legal consequences that flow from established facts, our review is de novo. Manalapan Realty v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

Count one of plaintiff's complaint challenged the municipal entities' actions in executing the 1988 and 2004 agreement. Challenges to municipal actions must be presented by filing a prerogative writ action, R. 4:69-1, and are subject to the forty-five-day limitations period enunciated in Rule 4:69(b)(3). Mason v. City of Hoboken, 196 N.J. 51, 69 (2008); N.J.S.A. 10:4-15(a). The time limit is necessary to provide certainty and repose to public entities. The facts presented offer no basis for an enlargement of that time frame to permit plaintiff's untimely action. Swanson v. Plan. Bd. of Tp. of Hopewell, 149 N.J. 59 (1997) (J. Stein, concurring).

Based upon our review of the record, we infer the motion judge recognized the claims asserted against the municipal entities seeking redress regarding the 1988 and the 2004 Agreements were untimely, warranting dismissal. Dismissal was without prejudice to plaintiff's right to timely file future claims that are properly presented. See Milford Mill 128, LLC v. Borough of Milford, 400 N.J. Super. 96, 109 (App. Div. 2008) ("if a plaintiff's complaint is manifestly untimely or procedurally deficient, the defendant should not be compelled to suffer the burdens of continued litigation.").

Count four requests a writ of mandamus,*fn5 ordering the Committee to compel the Gianetti defendants to return the Property to its 1988 condition. This request infers the Township has allowed the Gianetti defendants to use the Property in a manner that exceeds the scope of the pre-existing non-conforming use protected by N.J.S.A. 40:55D-68. The issue of whether an ongoing violation of the nonconforming use exists is not properly before us because plaintiff has failed to exhaust available administrative remedies.

A zoning compliance challenge must be presented to the TZO who is charged with zoning enforcement. Appeal of that determination must be presented to the Township Board of Adjustment. N.J.S.A. 40:55D-70; N.J.S.A. 40:55D-72; see Dolan v. DeCapua, 16 N.J. 599, 612 (1954) ("The zoning statute provides for hearings and determinations of a quasi-judicial nature before the board of adjustment."). We recognize "that local officials 'who are thoroughly familiar with their community's characteristics and interests and are the proper representatives of its people are undoubtedly the best equipped to pass initially on such [issues].'" Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965) (quoting Ward v. Scott, 16 N.J. 16, 23 (1954)). A party must exhaust its rights before an administrative agency before seeking judicial review. R. 4:69-5.

Similarly, to the extent the claims presented in these counts allege other tort actions against the municipal defendants, they too are barred for failure to comply with the notice and limitations requirements of the Act. N.J.S.A. 59:8.8(a) and N.J.S.A. 59:8.9.

Count three recites claims similar to that set forth in count four, as it maintains various zoning and other municipal ordinances have been violated by the Gianetti defendants. As stated, plaintiff failed to make the necessary record before the Township Board of Adjustment precluding our review of these issues. Thus, we conclude counts three and four of plaintiff's complaint also were properly dismissed.

The remaining counts of plaintiff's complaint are directed to the Gianetti defendants and allege nuisance (count two), and harassment and emotional distress (count five). The motion judge's failure to make necessary findings of fact and conclusions of law, as required by Rule 1:7-4(a), precludes our review.*fn6 We are at a loss to understand the legal basis employed by the court for the dismissal of these claims. None of the bases we have discussed requiring dismissal of the claims against the municipal defendants apply or support dismissal against the non-municipal defendants.

Therefore, we reverse the order of August 17, 2007, as to counts two and five. Plaintiff's complaint as to these claims is reinstated. As a result of this opinion, the counterclaim against plaintiff and the Gianetti defendants' third party claim must also be reinstated.

Finally, in his reply brief, plaintiff asserts error because the motion judge did not address his discovery compliance motion. We decline to address this matter as plaintiff failed to present this issue in his merits brief. Therefore, the issue is deemed waived. Rule 2:6-2(a)(5); Roa v. LAFE, __ N.J. Super. __ (App. Div. 2008).

Affirmed in part and reversed in part.

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