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Gerald A. Greenberg,*Fn1 v. 236 E. Absecon Boulevard Mobile Home Park

August 23, 2011

GERALD A. GREENBERG,*FN1 PLAINTIFF-APPELLANT,
v.
236 E. ABSECON BOULEVARD MOBILE HOME PARK, LLC, CITY OF ABSECON AND ZONING BOARD OF ADJUSTMENT OF THE CITY OF ABSECON, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-611-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 10, 2010

Before Judges Axelrad, Lihotz and J. N. Harris.

Plaintiffs appeal from summary judgment by the Law Division dismissing their complaint in lieu of prerogative writs, challenging the grant of land use approvals by defendant, the Zoning Board of Adjustment of the City of Absecon (the Board). The court found the Board had jurisdiction to grant site plan approval and bulk variances*fn2 to defendant 236 E. Absecon Boulevard Mobile Home Park, LLC (Absecon Homes). The approvals allowed the residential development of defendants' property, which is adjacent to plaintiffs' homes. The court also found plaintiffs' complaint was untimely, and the circumstances did not warrant enlarging the limitations period. We affirm, albeit on narrower grounds than the Law Division.

I.

On February 16, 2010, plaintiffs filed a complaint in lieu of prerogative writs against Absecon Homes, the City of Absecon, and the Board. Count I alleged the Board lacked jurisdiction to hear Absecon Homes' site plan application and associated bulk variances and thus, the 2008 approvals for the proposed redevelopment were void and of no effect. Count II alleged the Board's 2007 determination that the proposed redevelopment plan was not an expansion of a non-conforming use was arbitrary and capricious. Count III alleged there was a substantial deviation between the 2007 and 2008 site plans, rendering invalid or inapplicable the Board's 2007 conclusion that the project did not expand a pre-existing non-conforming use and did not need a "special reasons" variance under N.J.S.A. 40:55D-70d(l) or (2) (a "d" variance). Plaintiffs sought an order declaring: (1) the Board's 2008 site plan and variance approval to be void and of no effect and (2) as currently configured, Absecon Homes' project to be an improper expansion of a non-conforming use and requiring a "special reasons" variance. Plaintiffs also sought injunctive relief. Plaintiffs additionally filed an order to show cause seeking to enjoin Absecon Homes from further construction. On February 24, 2010, the parties agreed Absecon Homes would not perform any additional work on the site except for delivery of materials until the anticipated cross-motion for summary judgment was heard.

According to the parties, they and the court agreed plaintiffs' submission would be treated as a motion for summary judgment. Absecon Homes and the Board filed cross-motions for summary judgment. Following oral argument, the court granted summary judgment in favor of all defendants, and dismissed, with prejudice, plaintiffs' complaint. A memorandum of decision and memorializing order was issued on April l4, 2010. This appeal ensued.

On appeal, plaintiffs argue:

POINT I

BECAUSE IT IS A COLLATERAL ATTACK ON AN "UTTERLY VOID" MUNICIPAL ACTION, PLAINTIFFS' CHALLENGE TO THE ZONING BOARD'S 2008 APPROVAL IS BOTH TIMELY AND MERITORIOUS.

A. THE TRIAL COURT ERRED IN HOLDING THAT THE ZONING BOARD HAD "ANCILLARY JURISDICTION" TO GRANT SITE PLAN APPROVAL WITH BULK VARIANCES.

B. BECAUSE THE ZONING BOARD LACKED JURISDICTION, ITS 2008 SITE PLAN AND VARIANCE APPROVAL WAS "UTTERLY VOID."

C. COUNT I OF PLAINTIFFS' COMPLAINT IS A COLLATERAL ATTACK ON THE 2008 APPROVAL.

D. NEITHER EQUITABLE ESTOPPEL NOR LACHES BARS PLAINTIFFS' CHALLENGE TO THE 2008 APPROVAL.

POINT II

UNRESOLVED FACTUAL ISSUES PRECLUDE SUMMARY JUDGMENT ON PLAINTIFFS' CHALLENGE TO THE ZONING ...


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