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John Mullen and Howard Levine v. the Ippolito Corporation

September 10, 2012

JOHN MULLEN AND HOWARD LEVINE, PLAINTIFFS-APPELLANTS,
v.
THE IPPOLITO CORPORATION, SAMUEL IPPOLITO, PAUL IPPOLITO, ELAINE PETRILLO, IN HER CAPACITY AS THE ZONING OFFICER OF THE BOROUGH OF POINT PLEASANT BEACH, THE BOROUGH OF POINT PLEASANT BEACH, MICHAEL GARDNER, IN HIS CAPACITY AS THE CONSTRUCTION OFFICER OF THE BOROUGH OF POINT PLEASANT BEACH, AND MARYANN ELLSWORTH, IN HER CAPACITY AS THE OFFICIAL IN CHARGE OF ENFORCING THE BOROUGH OF POINT PLEASANT BEACH'S DUNE ORDINANCES, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3579-09.

The opinion of the court was delivered by: Fuentes, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued February 16, 2012

Before Judges Fuentes, Graves, and Koblitz.

The opinion of the court was delivered by FUENTES, P.J.A.D.

Plaintiffs John Mullen and Howard Levine own a one-family house in an area of the Borough of Point Pleasant Beach that is zoned exclusively for low density residential use. Plaintiffs' residence is adjacent to the Driftwood Motel, a pre-existing nonconforming use in this otherwise residential zone. The Driftwood is owned and operated by defendant Ippolito Corporation, the principals of which are defendants Samuel and Paul Ippolito.

Over the past thirteen years, plaintiffs have complained to municipal officials in Point Pleasant Beach that the Ippolitos were expanding the Driftwood's business operations as well as the property's physical footprint, in violation of: (1) applicable zoning restrictions intended to preserve the residential character of the neighborhood; (2) municipal housing and construction codes; and (3) dune protection ordinances. Plaintiffs allege that municipal officials ignored their numerous complaints and failed to take any corrective or enforcement action against the Ippolitos.

Unable to get relief from the municipality, plaintiffs brought suit in the Superior Court against the Ippolitos, seeking compensatory damages and injunctive relief. Plaintiffs also sought declaratory and mandamus relief against the Borough of Point Peasant Beach, Zoning Officer Elaine Petrillo, Construction Official Michael Gardner, and Maryann Ellsworth, the official responsible for enforcing the Borough's dune ordinance (collectively the municipal defendants).

Shortly after joinder of issue, the municipal defendants moved for summary judgment, seeking to dismiss plaintiffs' complaint based on the immunities provided to governmental entities and their employees under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3; the time restrictions imposed by Rule 4:69-1 on those seeking to challenge municipal action in the Superior Court; and plaintiffs' failure to exhaust administrative remedies under N.J.S.A. 40:55D-70, within the time restrictions imposed by N.J.S.A. 40:55D-72.

The trial court granted the municipal defendants' motion for summary judgment based on plaintiffs' failure to exhaust administrative remedies as required by Rule 4:69-5. The court also found plaintiffs' action untimely under Rule 4:69-6(a) because it was commenced more than forty-five days after the occurrence of the events from which relief was sought. We denied plaintiffs' motion seeking interlocutory review of the trial court's order. On appeal, the Supreme Court reversed our decision and directed us to consider the merits of plaintiffs' arguments. We now take on this charge.

Relying primarily on Garrou v. Teaneck Tryon Co., 11 N.J. 294 (1953), plaintiffs argue that the trial court should not have dismissed their complaint against the municipal defendants because they have shown that: (1) there has been clear violations of local zoning and public safety laws, (2) the violations have particularly and adversely affected their right to the quiet enjoyment of their home, and (3) the violations have remained unabated despite having been duly brought to the attention of the relevant municipal officials. After reviewing the record before us, and mindful of the procedural posture of the case, which requires us to view all facts and reasonable inferences therefrom in the light most favorable to plaintiffs, Rule 4:46-2(c), we are persuaded by plaintiffs' argument. We reverse the trial court's order dismissing plaintiffs' complaint against the municipal defendants and remand the matter for further proceedings.*fn1

I

Plaintiffs purchased their beachfront home in 1998. The Driftwood Motel has operated adjacent to plaintiffs' property "since at least the 1960's." Both properties are located in the SF-5 zoning district, an area permitting only single-family residences, schools operated by the Point Pleasant Beach Board of Education, public playgrounds, parks, and "other public purpose uses." Borough Ordinance 19-9.1 delineates other permitted non-residential uses:

a. Principal Permitted Uses on Land and in Buildings.

4. Notwithstanding any other provision of this chapter, no building or structure shall be permitted on the beaches or boardwalk in the areas east of the boardwalk or boardwalk line as described on the zoning map, with the following exceptions:

(a) Participatory recreational activities, including swimming, bathing beaches and other similar recreational activities which will preserve the natural condition of these lands between the hours of 7:00 a.m. and 10:00 p.m., so long as adequate life guards, life saving apparatus and other necessary facilities are provided and the use meets the licensing requirements of the borough;

(b) Temporary structures to house beach umbrellas and other equipment appurtenant to the principal use;

(c) One unlighted attached or free standing sign, not to exceed 15 square feet, identifying the beach, its operating hours and rules and regulations.

5. Two-family dwellings only in that portion of the SF-5 zone east of Ocean Avenue and south of Carter Avenue, extending not more than 110 feet from Carter Avenue and not within 100 feet of the boardwalk right-of-way.

b. Accessory Uses Permitted.

1. Private residential swimming pools (see subsection 19-11.11 for standards).

2. Private residential utility sheds (see subsection 19-11.1a. for standards).

3. Off-street parking and private garages for storage of a maxi-mum of three vehicles. The garage shall not exceed 16 feet in height.

4. Fences and walls (see subsection 19 11.4).

The Driftwood Motel existed on its present site before the Borough adopted these zoning restrictions, and is therefore considered a pre-existing nonconforming use under N.J.S.A. 40:55D-68.

The Driftwood was partially destroyed in 1977; it was rebuilt thereafter with the knowledge and approval of the Borough's Zoning Board of Adjustment (Board). As part of the rebuilding, the motel expanded the third story of the fire-damaged building. Although this expansion was initially attempted without the Board's knowledge, municipal construction officials quickly discovered it and halted construction pending formal approval by the Board. The Board eventually granted the motel a variance for the expansion of the third story to accommodate "one living unit." (Emphasis added). Despite this express limitation, the Board characterized the outcome as "a substantial enlargement of the nonconforming use."

Plaintiffs maintain, however, that the Ippolitos did not submit a specific site plan at the time the Board voted to approve the expansion of the third story. According to plaintiffs, the absence of a site plan has permitted the Ippolitos to unlawfully expand and intensify the business activities of the motel, without complying with the relevant zoning restrictions. Plaintiffs are particularly concerned about the erosion and, in some areas, the outright destruction of the motel's sand dunes, a vital barrier that constitutes the first line of defense against coastal storms.

At present, the motel consists of two separate buildings erected on a lot measuring 100 feet by 250 feet, for a total of 25,000 square feet. The buildings house thirty-five rooms and have a number of amenities, including an in-ground pool, a concrete patio, a snack bar, lavatory and shower facilities for non-motel guests using the beach, and parking spaces to accommodate the motel's guests. According to plaintiffs, the motel is overdeveloped given the size of its property.

Plaintiffs emphasize that living next door to the motel has given them a unique and clear vantage point from which they have detected the systematic, covert expansion of the motel's business activities, all to the detriment of their quality of life and right to the quiet enjoyment of their home. Plaintiffs have identified the following areas of concern.

Snack Bar

The first of these alleged unlawful expansions involved the snack bar, which is located at the rear of the motel. In a certification submitted in opposition to the municipal defendants' summary judgment motion, Mullen averred:

In 1999, I observed that a snack bar servicing the "Driftwood" was being enlarged so that is [sic] double in size. I contacted the Borough of Point Pleasant Beach's then- Code Enforcement/Zoning Official*fn2 (Robert Evans) and was told that the motel operators had obtained a "permit" (it was actually to renovate -- not to expand -- the snack bar). The doubling in size of the snack bar expands and intensifies the Driftwood. Noises and smells from the snack bar carry over into our property. Non-motel guests now use the snack bar. [(Footnote omitted).]

Plaintiffs retained Phillip R. Kavanaugh, a licensed professional engineer, "to review the history of expansion modification and intensification of the hotel as they relate to the requirements of the Borough's Land Development Ordinance particularly with respect to Zoning." ...


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