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Cortese v. Strothers

August 9, 2010

JOHN A. CORTESE, SALLY CORTESE, AND JOHN A. CORTESE, JR., PLAINTIFFS-APPELLANTS,
v.
JOHN STROTHERS AND THE CITY OF NORTH WILDWOOD, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Cape May County, No. L-612-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 3, 2010

Before Judges Wefing and Messano.

Plaintiffs appeal from a trial court order granting summary judgment to defendants. After reviewing the record in light of the contentions advanced on appeal, we have concluded that we are constrained to affirm.

Plaintiffs John Cortese, Sally Cortese and their son John A. Cortese, Jr. are the owners of property located in North Wildwood, New Jersey. The Cortese property is not their principal residence; they use it during the summer months. Defendant John Strothers owns the adjoining property. Strothers is a full-time resident. The parties have been engaged in an extended dispute as a result of two factors: Strothers' construction of an addition to his house that was significantly larger than what he had proposed to build and did not conform to the approvals he had been granted; and the apparent inability of the North Wildwood officials to compel Strothers to comply with the municipality's zoning laws.

This is the second time the parties have been to this court. In the earlier appeal we affirmed the trial court's decision which set aside a Planning Board resolution granting defendant Strothers, in effect, a retroactive variance for this construction. Cortese v. Strothers, No. A-4610-05 (App. Div. July 6, 2007). We noted in our opinion that defendant Strothers had built a second story addition that, contrary to his earlier representations to plaintiffs and to the Board, occupied the entire footprint of the building and had included an entire third story of which he had made no mention and had received no approval.*fn1 We noted that the Board's resolution was "entirely bereft of any reasons" for granting Strothers this relief. Slip op. at 3.

Following this decision, plaintiffs renewed their efforts to have the municipality enforce its land use laws against defendant, but their efforts were unavailing. The municipality issued several summonses to Strothers, but the municipal court did not provide effective relief to plaintiffs, staying any penalty as defendant said he was trying to bring the structure into conformity.

Plaintiffs ultimately filed a second action in lieu of prerogative writs. Their complaint in its final form contained three counts: an allegation that the City had violated the Municipal Land Use Law by not enforcing its own ordinances; an allegation that the City had a policy of having its officers violate the First, Fourth and Fifth Amendment rights of interested parties, in violation of 42 U.S.C. § 1983; and an allegation that the City's intentional failure to enforce its zoning ordinance violated plaintiffs' rights to the equal protection of law and was thus a violation of 42 U.S.C. § 1983. Defendants thereafter moved for summary judgment. Plaintiffs have appealed from the trial court order granting that relief.

We note first the standard governing our review. We employ the same standard as did the trial court in determining whether summary judgment should be granted. We first look to see if there was an outstanding issue of material fact; if we are satisfied that none existed, we then consider whether the trial court correctly applied the relevant legal principles. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

I.

N.J.S.A. 40:55D-18 provides in pertinent part:

In case any building or structure is erected [or] constructed . . . in violation of this act [The Municipal Land Use Law] or of any ordinance or other regulation made under authority conferred hereby, the proper local authorities of the municipality or an interested party . . . may institute any appropriate action or proceedings to prevent such unlawful erection [or] construction . . . to restrain, correct or abate such violation . . . .

In the first count of their complaint, plaintiffs sought an order compelling the municipality to enforce its land use regulations against defendant Strothers. Notably, they did not seek an order on their own behalf seeking to enforce those provisions. In such a posture, we agree ...


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