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Angelo R. Bisceglie, Jr v. Mehmet Oz and Lisa Oz

January 14, 2013

ANGELO R. BISCEGLIE, JR., PLAINTIFF-APPELLANT,
v.
MEHMET OZ AND LISA OZ, BOROUGH OF CLIFFSIDE PARK, DEFENDANTS-RESPONDENTS, AND CLIFFSIDE PARK ZONING BOARD OF ADJUSTMENT, CLILFFSIDE PARK ZONING OFFICIAL, CLIFFSIDE PARK CODE OFFICIAL, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-11157-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 30, 2012

Before Judges Reisner and Hoffman.

Plaintiff appeals from a July 21, 2011 order that dismissed his action in lieu of prerogative writs for failure to exhaust administrative remedies. We affirm.

I.

Plaintiff Angelo Bisceglie and defendants Lisa and Mehmet Oz are next-door neighbors, living on parcels of land in Cliffside Park. The properties are located near the Hudson River and overlook the New York City skyline. In 2008, defendants submitted an application to the Cliffside Park Zoning Board of Adjustment (the Board), seeking approval for a landscaping project where they intended to construct a guesthouse and in-ground pool. The board approved defendants' request, subject to the approval of a landscaping plan by the "Borough engineer/planner," which defendants submitted on August 13, 2010.*fn1 That same day, defendants personally provided plaintiff with a copy of the landscaping plan.

On approximately August 16, 2010, defendants planted the bamboo trees depicted in the plan. Eight days later, plaintiff filed a motion for a probable cause hearing in the Cliffside Park Municipal Court challenging that the bamboo trees violated the local fence ordinance. This application came before the municipal court on September 16, 2010, with the judge expressing doubts as to whether the municipal court was the appropriate forum for this complaint:

But I don't know if that's strictly a municipal code violation that falls under the municipal court's jurisdiction. That's the . . . first problem I have. That's the first hurdle I'll have to overcome. I believe it sounds more of a zoning issue than it is a municipal court issue. What should be heard by . . . either the planning board or the zoning board[.]*fn2

Following the hearing, defendants moved the bamboo trees to the other end of their property, away from plaintiff's parcel of land, in an apparent attempt to accommodate plaintiff's objection.

In addition to the municipal court proceeding, plaintiff took other steps to voice his objections to different aspects of the landscaping plan. He discussed his objections with the planner and wrote letters to the mayor and other municipal officials. However, plaintiff never appealed to the Cliffside Park Zoning Board of Adjustment for a determination of these issues. We also note that plaintiff did not raise an objection to the cedar pine trees depicted in the landscaping plan, which are at issue in this case, at any time prior to filing this action.

On October 28, 2010, defendants planted the three cedar pine trees as depicted on the approved plan. The trees partially obstructed plaintiff's view of the New York City skyline and the Hudson River. On November 16, 2010, plaintiff filed an action in lieu of prerogative writs against defendants claiming that the trees constituted a "fence" in violation of the fence ordinance. On July 21, 2011, Judge Menelaos W. Toskos dismissed the action for failure to exhaust administrative remedies.

On appeal, plaintiff argues that the judge improperly dismissed the action and should have heard the merits of the case. We disagree, finding no mistaken exercise of discretion in the judge's determination that exhaustion of administrative remedies was required. We affirm substantially for the reasons expressed by Judge ...


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