On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2454-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 21, 2011 -
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Plaintiff, Wilson X. Bezerra, appeals from the trial court's grant of summary judgment, dismissing with prejudice his complaint against defendant, Frank DeLorenzo, the Belleville Township's zoning officer and construction code official. Bezerra alleged that DeLorenzo wrongfully interfered with his effort to construct a two-family home. Among other things, Bezerra alleged DeLorenzo wrongfully issued a stop-work order before the structure was weather-tight, resulting in significant water damage. DeLorenzo asserted Bezerra's building violated the local zoning ordinance that limited building height to twoand-a-half stories and thirty-five feet. Bezerra argued DeLorenzo was on notice of his plans all along, approved them, but then wrongfully blocked his project to cause him harm, and made various false statements to defend his action before other local governmental bodies. Bezerra challenges the court's finding that the Tort Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-3, shielded DeLorenzo from liability for Bezerra's claims. We affirm.
We discern the following material facts from the record, granting Bezerra all reasonable inferences.
Bezerra purchased the lot for the two-family home in 2002 for $75,000. The lot was located in the R-B two-family zoning district, where structures were limited to a height of two-and-half stories or thirty-five feet. Bezerra had never constructed a residential, or pre-fabricated structure before.
He filed his request for a building permit in November 2002. It described plans to build a two-story prefabricated structure. The various drawings of the house depicted a residence with two floor-through apartments, and a main front entrance door at ground level that was five steps below the floor and entrance of the lower apartment, and five steps above the below-grade basement. A handwritten note indicated the foundation level would rise four feet above grade. Another drawing depicted a deck off the first floor apartment that was almost at ground level, with no visible foundation. Other drawings indicated that the grade would vary.
The plans also included a notation, "SEE ORDER VERIFICATION FORM FOR FINAL ELEVATION SPECIFICATIONS[.]" This and other notes, Bezerra asserted, notified DeLorenzo that the grading depicted in the drawings did not necessarily indicate how the structure's foundation would appear as built by Bezerra.
On November 26, DeLorenzo wrote to Bezerra that his request was incomplete, in part because it lacked plans in compliance with the Belleville Planning Board's 1988 resolution authorizing the subdivision of Bezerra's property. In January 2003, Bezerra filed a January 10, 2003 plot plan signed by Matarazzo Engineering, LLC, Bezerra's professional engineer that depicted a "PROPOSED 2 STORY TWO FAMILY DWELLING." The plan indicated the surrounding land at 100 feet elevation, the entrance to the garage at 101 feet, and "F.F.," which apparently means finished floor, at 110 feet. Bezerra maintained that this plan notified DeLorenzo that there would be two living floors atop an above-grade foundation level that included a garage.
After the Township Engineer's review, DeLorenzo signed the permit on February 11, 2003, but did not issue it until March 12, 2003. There are two versions of the construction permit in the record. One version reflects permission to perform foundation work. A box marked "other" is checked off and the handwritten word "foundation" is inserted, and the words "PreFab as per prints" are written in the space for "description of work." The boxes for approval of building, electrical, plumbing and fire protection are not checked. However, payments of $280, $100, $125 and $50, are reflected for those permits in the payment section of the form, which lists those categories. The form also indicates receipt of a check for the total of $705. The $280 building fee in particular was equal to two percent of the estimated $14,000 cost of the foundation work. Subcode permits for electrical, plumbing and fire protection work were issued in December 2002 and January 2003. The electrical and plumbing permits indicate they authorized work connecting the pre-fab building to electrical and plumbing systems.
In June 2003, Bezerra obtained a revised version of the permit from the Township. On this second version, boxes for building, electrical, plumbing and fire protection were checked, and the word "Foundation" was added in front of the words "PreFab as per prints." Bezerra asserts that DeLorenzo altered the permit to support an allegedly false statement he made to a county agency that he approved only the foundation and not construction of the entire building.
After receipt of the March 12, 2003 permit, Bezerra began work on the footings for a pre-cast foundation. DeLorenzo inspected the footings on March 17, but refused to permit further construction until Bezerra presented a foundation drawing with the signature and seal of his licensed engineer. Bezerra asserted that he had previously provided those drawings before DeLorenzo issued the permit, and that DeLorenzo had requested the sealed drawing again to delay his work.
According to Bezerra, DeLorenzo then solicited a bribe, but Bezerra points to no oral or written communication from DeLorenzo. Instead, Bezerra points only to a "feeling" he had, when DeLorenzo silently leaned against his car at the construction site. "I had the feeling this guy was looking for a bribe." When asked what gave him that feeling, he responded:
The way he leaned up against the car. He had all the documentation with him. He had the prefab drawing. He had the plot plan and he had the foundation drawing and the way he just stated I am not gonna let this project go on. And he just leaned up against the car and he made no motion whatsoever. Other than to wait for me to say I got the feeling, you know, ["]Frank, can you help me[?"]
Bezerra submitted a signed drawing for a pre-cast foundation soon thereafter and DeLorenzo advised Bezerra he could proceed with construction. The drawings did not expressly state the extent to which the foundation would rise above grade. However, Bezerra maintained that the drawings indicated the foundation would be ten feet above grade because one detailed plan indicated that the foundation would consist of ten-foot-high panels, that is, "10' Panels Totaling 154'-8"."
The foundation was installed virtually at ground level between March 17 and 20, 2003. On March 27, 2003, Bezerra's construction workers, with the use of a crane, lifted the two modular units into place on top of the foundation, creating a three-story structure. As depicted in photographs of the partially completed structure, the foundation level included two large openings for garages that were slightly above grade, and an opening to accommodate a full front door. A cut-out opening on the bottom part of the first modular residential floor - that apparently had been intended for the top of the front door - was covered with what appeared to be a piece of plastic.
DeLorenzo asserted that he was prompted to visit the site by neighbors who called the Township offices to complain as soon as the building was erected. One resident testified that the building was assembled in a single day; when he returned home from work, he was concerned about its height; and he called to complain the next morning. Bezerra's workers maintained that DeLorenzo monitored the construction from his car as it proceeded, and intervened once the units were in place on the foundation. Bezerra argued DeLorenzo was therefore not prompted by neighbors, but by his own animus toward him.
DeLorenzo determined that Bezerra's still-unfinished structure was three stories, and over thirty-five feet high - in both respects in violation of the zoning ordinance. However, it was later established that even with the roof installed, the height from the foundation floor to the peak of the roof was a few inches under the thirty-five foot limit. As the zoning ordinance prescribed that height measurements be taken from the mid-point of a roof, Bezerra's building was even shorter than that.
DeLorenzo ordered the construction to cease. The workers had not yet raised the roof; it was "laying down with the hinges collapsed." As a result, although the upper apartment was generally enclosed by a ceiling, there was a hole in the center of the building. Another worker testified that he asked DeLorenzo for permission to raise the roof, to protect the building from rain and other elements. DeLorenzo refused. He told the workers that further construction would be illegal and that they would be arrested if they continued.
Another worker asked if the crew could remain for an hour to install a tarp to shield the house from the rain, which could void the building's warranty. DeLorenzo allowed the crew a half hour, and a tarp was installed.
One construction crew member testified that when the site was shut down, the workers had not yet bolted together the structure's two major units. He claimed that as a result, the buildings could have collapsed. "[I]f we didn't bolt it together, the buildings could have collapsed. They should have been bolted together and should have had the posts set up in the middle to keep the two buildings together and keep them from sagging." He testified that when the workers returned to the site about five to ten days after, he detected some "sagging."
DeLorenzo then issued a written Stop Construction Order that reflected a "date issued" of March 28, 2003, and a "Date of Notice" of March 31, 2003.*fn1 The order stated that Bezerra had violated N.J.A.C. 5:23-2.16, as the work was "NOT IN COMPLIANCE WITH APPROVED PLANS VARIANCE REQUIRED[.]" It stated that construction could continue if fines were paid in full and the violation were eliminated. On April 4, 2003, DeLorenzo informed Bezerra by letter that he had issued the stop construction notice for the following reasons:
The structure that has been erected on the property has not been approved and is in violation as followed.
The approval was based on a two (2) story structure, the Township Regulations 230-3 states that maximum stories are two and half (2 1/2) which is allowed in the R-B Two Family Zoning District in which the property is located. Also, the maximum height in this zone is 35' feet. Owner shall submit a certification on the height from a licensed Architect or Engineer.
It appears that the building may not be structural[ly] secured and unsafe.
You are hereby order[ed] to eliminate the violation immediately. Failure to eliminate the violation immediately will result in a fine of $500.00 dollars a day each day [the] violation exist[s].
The applicant may apply for a variance.
However, the structure shall be removed until such approvals are granted, or conform to the Zoning District.
Bezerra maintained that notwithstanding this notice, based on what DeLorenzo orally told his employees on the site the day of the inspection, he believed he faced arrest if he returned to the site to remediate the condition. Bezerra met with DeLorenzo after the stop work order to complain that DeLorenzo had issued a permit, to allow construction of the building he had just stopped. Bezerra said DeLorenzo answered, "I am God. I giveth and I taketh." Bezerra also maintained that DeLorenzo alleged his building was thirty-eight feet high.
Although Bezerra did seek a variance, as we discuss below, he did not remove the structure pending his application. But, before applying for a variance, Bezerra challenged the stop work order in an appeal filed April 9, 2003 with the Essex County Construction Board of Appeals ("County Board").
Prior to the County Board hearing, DeLorenzo began issuing tickets charging Bezerra with ordinance violations. Between April 22 and early May, DeLorenzo issued forty-seven violation notices. On April 22, 23 and 24, he issued a ticket charging that Bezerra had violated the zoning ordinance because of the building's height. On April 25, and on each of ten days thereafter, DeLorenzo issued four summonses a day. In addition to a summons charging the zoning ordinance violation, DeLorenzo issued summonses charging violations of the Township's Property Maintenance Code. Bezerra construed the summonses as retaliatory. As potential fines accrued for each day the violation persisted, the repeated summonses were apparently redundant, although Bezerra maintained they threatened him with multiplied fines. An expert on behalf of DeLorenzo, a former code enforcement official, testified the issuance of daily violations over a two-week period was "absolutely appropriate" and in compliance with the advice of the municipal prosecutor.
Also, pending the County Board's decision, Bezerra filed a complaint with the Department of Community Affairs ("DCA") alleging harassment by DeLorenzo. In the meantime, however, Bezerra's crew returned to the ...