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William H. Johnson, Jr v. Downe Township Combined Planning/Zoning Board and Kathryn L.

January 9, 2012

WILLIAM H. JOHNSON, JR., PLAINTIFF-APPELLANT,
v.
DOWNE TOWNSHIP COMBINED PLANNING/ZONING BOARD AND KATHRYN L. WEISENBURG, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-848-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 20, 2011 -

Before Judges Baxter and Nugent.

Plaintiff William Johnson, Jr. appeals from an April 1, 2011 Law Division order denying his motion to dismiss defendant Kathyrn Weisenburg's appeal of the grant of a zoning permit to plaintiff. The Law Division determined that (1) Weisenburg had standing to file the permit appeal, which would be decided by defendant Downe Township Combined Planning/Zoning Board (Board), and (2) Weisenburg filed her permit appeal with the Board in accordance with the time requirements of N.J.S.A. 40:55D-72(a).

Although the Board had not yet determined whether Weisenburg's challenge to the issuance of the permit was meritorious, plaintiff appealed the Board's adverse decision on his motion to dismiss by filing in the Law Division a complaint in lieu of prerogative writs. The Law Division's April 1, 2011 order dismissing plaintiff's challenge to the Board's denial of his motion to dismiss was interlocutory, as the Law Division order did not resolve all issues between all parties. Plaintiff did not seek leave to appeal the interlocutory order. Because piecemeal review is highly disfavored, we decline to consider the merits of plaintiff's appeal, and dismiss the appeal as interlocutory.

I.

Plaintiff is the owner of a parcel of land on Newport Avenue in Downe Township (Township). In 1990, he was granted a permit to place a 14' x 70' trailer on the property. Five years later, he removed the trailer, and the lot lay vacant until May 2010, when plaintiff placed a 15' x 76' pre-fabricated modular home on the property. Plaintiff did not obtain a zoning permit from the Township Zoning Officer before the home was delivered.

Weisenburg owns a property on Garrison Avenue that is within 200' of plaintiff's property line. She acknowledges she first saw plaintiff's modular home when it was delivered to plaintiff's lot on May 26, 2010.

Although plaintiff's attorney met with the Zoning Officer, Anthony Lamanteer, to obtain a zoning permit for the home on May 27, 2010, Lamanteer refused to issue the permit because plaintiff failed to supply a letter from the County Board of Health (Health Department) approving the twenty-year-old septic system that was on the lot; however, Lamanteer allowed plaintiff to retain the home on the property until he or his attorney was able to provide Lamanteer with the necessary documents from the Health Department.

Starting on May 28, 2010, a mere two days after the modular home was delivered to plaintiff's property, both Lamanteer and the Township clerk began to receive phone calls from Township residents complaining about the home, and questioning how plaintiff was able to obtain permission for the new home when they themselves had been unable to obtain similar permission. Weisenburg made two such calls to Lamanteer in June.

On July 1, 2010, the Health Department issued a "Letter of No Action" on the existing septic system at plaintiff's property, thereby signifying that the Health Department had no objection to plaintiff's continuing use of that system. The Health Department forwarded a copy of its July 1, 2010 letter to Lamanteer.

On July 5, 2010, Weisenburg called Lamanteer to complain that a water line was dug adjacent to and connected with plaintiff's modular home prior to plaintiff's receipt of any permits to do so. During that telephone call, Lamanteer advised Weisenburg to "[c]ome to the [Board] meeting" on July 13, 2010, where the community would discuss plaintiff's modular home and "everything that night."

On the following day, July 6, 2010, Lamanteer issued the zoning permit to plaintiff, thereby allowing plaintiff to permanently maintain the modular home on the existing footprint. Lamanteer did not require plaintiff to seek a variance or obtain any other approvals. Weisenburg had no further communication ...


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