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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 with Lamanteer about the permit between July 5 and the meeting on July 13, 2010.

On July 13, 2010, the Board conducted its regular meeting, during which the subject of plaintiff's home and the necessary permits was raised during the public comment portion of the meeting. Weisenburg expressed a number of objections to the Board. In particular, she asserted that before plaintiff obtained any permits, the water company had excavated a portion of the road to install a water connection to plaintiff's new home. She also asserted that plaintiff's home was not on a proper foundation, and that other Township residents had been unable to obtain similar permits to improve their own properties.

Not until the comment period did Lamanteer acknowledge that he had issued plaintiff the zoning permit. At that point, the Board solicitor explained the procedure residents could follow to appeal Lamanteer's issuance of the zoning permit. The solicitor explained that "any interested party" could appeal the issuance of the permit, and that any such appeal must be filed within twenty days.

Two days after the July 13, 2010 Board meeting, Weisenburg wrote to Lamanteer notifying him of her intention to appeal the permit decision. She also requested copies of certain documents, which were provided to her. On July 28, 2010, Weisenburg filed her permit appeal with the Board, challenging Lamanteer's issuance of the zoning permit to plaintiff on July 6, 2010. She asserted the following grounds for her appeal: "Permit granted was not in total compliance with ordinances and state and county approvals are not in compliance. No variance. Footprint does not match."

On August 8, 2010, plaintiff filed with the Board a motion to dismiss Weisenburg's appeal. He asserted that her appeal was untimely, as it had been filed twenty-two days after the issuance of the zoning permit, in violation of the twenty-day deadline imposed by N.J.S.A. 40:55D-72(a). He also asserted that Weisenburg had no standing to file the permit appeal as she was not "affected" by the issuance of the permit, and thereby failed to satisfy the requirement of N.J.S.A. 40:55D-72(a) that an appeal may be taken "by any interested party affected by any decision of [a zoning officer]." (Emphasis added).

On August 10, 2010, the Board held a regular meeting and rendered a decision on plaintiff's motion to dismiss Weisenburg's permit appeal. The Board unanimously determined that Weisenburg had standing as an "interested party affected" by the permit, and that Weisenburg had filed her appeal in a timely fashion.

Plaintiff did not wait until the Board considered the merits of Weisenburg's permit appeal before filing an action in the Law Division. Instead, on August 18, 2010, he filed a complaint in lieu of prerogative writs against both Weisenburg and the Board, appealing the Board's denial of his request to dismiss Weisenburg's permit appeal.

Following case management conferences that spanned a seven month period, the Law Division conducted a hearing on April 1, 2011 to consider plaintiff's challenge to the Board's August 10, 2010 resolution refusing to dismiss Weisenburg's permit appeal. During the hearing, the judge acknowledged "[i]t's not for today for me to determine whether the zoning permit was properly issued. That's for the Board on a later day." Consequently, the judge ruled solely on the standing and timeliness issues, deciding both in favor of Weisenburg and the Township. We need not discuss the judge's reasoning in any detail, in light of our determination that the present appeal is interlocutory.

On appeal, plaintiff raises the following claims: 1) the trial court erred when it found that Weisenburg could not reasonably have known of the issuance of the permit prior to July 13, 2010, and that her appeal of the zoning permit was therefore timely filed; and 2) because Weisenburg was not affected by the issuance of the zoning permit to plaintiff, the trial court erred when it found that Weisenburg had standing to file an appeal from its issuance.

II.

Rule 2:2-3(a)(1) states that an appeal as of right may be taken to the Appellate Division only from a "final judgment." To be a final judgment, an order generally must "dispose of all claims against all parties." Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549 (App. Div. 2007) (citation and internal quotation marks omitted). "This rule, commonly referred to as the final judgment rule, reflects the view that 'piecemeal [appellate] reviews, ordinarily, are [an] anathema to our practice.'" Id. at 550 (alterations in original) (quoting S.N. Golden Estates, Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)).

As we have stated:

The chief thrust of our judicial system - adopted in order to eliminate the unnecessary complications and convolutions of the system it replaced - was to promote efficiency, fairness and the reduction of needless costs and delays. The Supreme Court recognized that these goals require that the judicial process, as described by Justice Brennan, chiefly consist of "a single and complete trial with a single and complete review." One of the ways intended to achieve this goal was the elimination of an unseemly parade to the appellate courts, which would occur if our courts adopted an indulgent approach to interlocutory review. As a result, our judicial system recognizes that, with very few exceptions, only an order that finally adjudicates all issues as to all parties is a final order and that an interlocutory appeal is permitted only by leave of our appellate courts. To ensure that interlocutory review would be limited to those exceptional cases warranting appellate intervention, the sole discretion to permit an interlocutory appeal has been lodged with the appellate courts. [Grow Company, Inc. v. Chokshi, 403 N.J. Super. 443, 457-58 (App. Div. 2008) (internal citations and quotation marks omitted).]

Unquestionably, the present appeal is interlocutory. At the time the appeal was filed, the Board had not yet decided the merits of Weisenburg's permit appeal. The parties advised us at appellate oral argument that during the Board's October 2011 regular meeting, the Board considered Weisenburg's permit appeal and agreed with her contention that the issuance of the zoning permit to plaintiff on July 6, 2010 was ultra vires. The Board then proceeded to nullify the permit Lamanteer had issued. Plaintiff's counsel advised us that plaintiff will shortly be filing before the Law Division a challenge to the Board's nullification of the zoning permit.*fn1 Plaintiff has also filed with the Board an application for several bulk variances.

No doubt, there will be several proceedings before both the Board and the Law Division between these parties, all addressing whether, and under what circumstances, plaintiff should be permitted to situate the modular home on his property. Were we to decide the merits of the present interlocutory appeal, our decision would in no sense resolve the controversy between the parties, as both the Board and the Law Division will in the future be considering whether the granting of Weisenburg's permit appeal was proper and whether a variance will be required. Under such circumstances, deciding the present appeal -- which involves a challenge to the procedural aspects of Weisenburg's permit appeal -- creates the very perils that informed our decisions in Grow and Janicky.

On our own motion, during appellate oral argument, we raised with the parties the interlocutory status of the present appeal. Relying on the unpublished opinion in K-Land No. 54, L.L.C. v. Twp. of N. Brunswick, No. A-1950-07 (App. Div. July 22, 2009), plaintiff asserts that he is not required to exhaust his administrative remedies where the jurisdiction of the Board is directly at issue. We need not consider plaintiff's argument stemming from our per curiam decision in K-Land, as unpublished decisions lack any precedential authority. R. 1:36-3. Moreover, the issue before us is not exhaustion of remedies, but instead plaintiff's failure to seek our leave before filing an interlocutory appeal. We reject plaintiff's argument that the circumstances here warrant deciding the present appeal despite its interlocutory character.

Having determined that the appeal is interlocutory, and that our consideration of the appeal at the present time would disserve the interests of justice, we decline to consider the appeal, and dismiss it as interlocutory.

Appeal dismissed.


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