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


January 14, 2013


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

Per curiam.


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.


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 Toskos in his cogent and well-reasoned oral opinion. We add the following comments.


Pursuant to N.J.S.A. 40:55D-70, the powers of a zoning board include the authority to:

a. hear and decide appeals where it is alleged by the appellant that there is error in any order, requirement, decision or refusal made by an administrative officer based on or made in the enforcement of the zoning ordinance;

b. hear and decide requests for interpretation of the zoning map or ordinance or for decisions upon other special questions upon which such board is authorized to pass by any zoning or official map ordinance, in accordance with this act.

Such an appeal must be brought to the board of adjustment within twenty days of "the date an interested party knows or should know of the action[.]" Sitkowski v. Zoning Bd. of Adjustment of Borough of Lavallette, 238 N.J. Super. 255, 260 (App. Div. 1990). This time limit protects individuals from "the threat of unrestrained future challenge." Ibid. "[A] person to whom a permit is issued may protect his right by providing reasonable notice to all those who might wish to challenge the undertaking." Ibid. This provides an additional "measure of protection against direct and collateral attacks upon his rights." Id. at 261.

Generally, actions in lieu of prerogative writs are not "maintainable as long as there is available a right of review before an administrative agency which has not been exhausted."

R. 4:69-5. Also, "[n]o action in lieu of prerogative writs shall be commenced later than [forty-five] days after the accrual of the right to the review, hearing or relief claimed."

R. 4:69-6. However, a trial court may excuse the requirement to exhaust administrative remedies or extend the forty-five day statute of limitations in the interests of justice. Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 169 N.J. 135, 152 (2001) ("Rule 4:69-6(c) . . . authorizes enlargement 'where it is manifest that the interest of justice so requires'"); 21st Century Amusements, Inc. v. D'Alessandro, 257 N.J. Super. 320, 322 (App. Div. 1992) ("R[ule] 4:69-5 permits a trial court to waive the exhaustion of administrative remedies requirement where 'it is manifest that the interest of justice requires otherwise [.]'").

[T]he doctrine of exhaustion of administrative remedies serves three primary goals: (1) the rule ensures that claims will be heard, as a preliminary matter, by a body possessing expertise in the area; (2) administrative exhaustion allows the parties to create a factual record necessary for meaningful appellate review; and (3) the agency decision may satisfy the parties and thus obviate resort to the courts. [Atlantic City v. Laezza, 80 N.J. 255, 265 (1979).]

"It is axiomatic that the exhaustion of remedies requirement is neither jurisdictional nor absolute." 21st Century Amusements, supra, 257 N.J. Super. at 322 (citing Matawan Borough v. Monmouth Cnty. Bd. of Taxation, 51 N.J. 291, 296 (1968)). "[T]he exhaustion of remedies requirement is a rule of practice designed to allow administrative bodies to perform their statutory functions in an orderly manner without preliminary interference from the courts." Brunetti v. Borough of New Milford, 68 N.J. 576, 588 (1975).

Courts should determine whether to dispense with the "interest of justice" requirement on a case by case basis, "bearing in mind . . . that the interest of justice is ordinarily best served by requiring the plaintiff to first exhaust his other remedies and that it is only in special circumstances that the interest of justice will require otherwise." Nolan v. Fitzpatrick, 9 N.J. 477, 487 (1952). There is "a strong presumption favoring the requirement of exhaustion of remedies." Brunetti, supra, 68 N.J. at 588.

Our Supreme Court has set forth the following guidelines for determining when an interest of justice exception should be permitted:

This has been held to mean that exhaustion of remedies will not be required where administrative review will be futile, where there is a need for prompt decision in the public interest, where the issues do not involve administrative expertise or discretion and only a question of law is involved and where irreparable harm will otherwise result from denial of immediate judicial relief. [Id. at 589 (footnotes omitted).]

The standard of review for a trial court's "interest of justice" determination is abuse of discretion. See Hopewell Valley Citizens' Group, Inc. v. Berwind Prop. Group Development Co., L.P., 204 N.J. 569, 578 (2011).


Plaintiff contends that there was no need to appeal the approval of defendants' landscaping plans to the Board because the interpretation of a zoning ordinance is purely a legal issue. Plaintiff relies heavily on Supermarkets Oil Co., Inc. v. Zollinger, 126 N.J. Super. 505 (App. Div. 1974). In Supermarkets Oil, the plaintiff filed an action in lieu of prerogative writs after a building inspector revoked his permit to build a car wash at the gasoline station he owned. Id. at 506-07. The trial court directed issuance of the permit, finding that "such an operation is a permitted use under the borough's zoning ordinance in that it comes within the definition of a "public garage," a permitted use in [that] [d]istrict." Id. at 507.

On appeal, the defendants challenged the trial court's determination on the basis that the plaintiff had failed to exhaust administrative remedies. Ibid. We rejected this argument, finding that where interpretation of a zoning ordinance is called for, the issue is a legal one and is peculiarly suited to the judicial function, and resort need not be first had to administrative remedies. Here we have an issue as to interpretation of a "public garage" as defined in the borough's ordinance, and therefore exhaustion of administrative remedies was not required before institution of this "in lieu" action. [Ibid. (internal citations omitted).]

Plaintiff contends that the holding in Supermarkets Oil expressly contradicts the trial court's determination that plaintiff was required to appeal to the Board and claims that failure to exhaust administrative remedies is inapplicable whenever the issue raised relates to the interpretation of a zoning ordinance. Plaintiff further argues that "[t]he only result of requiring an exhaustion of administrative remedies where only a question of law is in issue would be useless delay, and this in the interest of justice cannot be countenanced." See Nolan, supra, 9 N.J. at 487. However, Supermarkets Oil does not stand for the proposition that the doctrine of failure to exhaust administrative remedies never applies where a plaintiff contests an issue involving the interpretation of a zoning ordinance. Rather, we merely affirmed that the trial court did not inappropriately fail to dismiss that specific action for failure to exhaust administrative remedies. Restated, where an action relates to the interpretation of a zoning ordinance, the trial court has the discretion to determine whether the case should be dismissed for failure to exhaust administrative remedies or not. See 21st Century Amusements, supra, 257 N.J. Super. 320.

In 21st Century Amusements, "[t]he plaintiff applied for a certificate of occupancy for a commercial use, specifically an amusement facility for video games and billiards." Id. at 321. The city's construction official denied the application, determining that the proposed use was not permitted by a local zoning ordinance. Ibid. Without first appealing this determination to the board of adjustment, the plaintiff filed an action in lieu of prerogative writs. Id. at 322. The trial court entered a judgment in favor of the plaintiff and directed that a certificate of occupancy be issued to the plaintiff. Id. at 322. However, we reversed this decision, finding that the plaintiff failed to exhaust available administrative remedies prior to filing the action and that the "question of law" exception did not relieve plaintiff of this obligation. Ibid.

Citing Supermarkets Oil and Riggs v. Twp. of Long Beach, 101 N.J. 515, 525-26 (1986), we noted that "[t]he 'question of law' exception ordinarily includes challenges to ordinances, and may also be applied where the issues involve interpretation of ordinances." Id. at 322-23. However, we found it relevant that the action was not an "attack upon the validity of the zoning ordinance, but rather concerns its interpretation and application." Id. at 323 (emphasis added). The case was not merely a legal interpretation of statutory language, but involved questions relating to the "municipality's urban renewal program" which implicated "questions of local land use policy and its implementation." Ibid. "In such matters, it is best if the record is made at the local level rather than in a trial court." Ibid.

Furthermore, we added that "this is not a case challenging an action of the local board itself or conduct clearly undertaken at its behest, which would suggest the futility of requiring that local administrative remedies be exhausted." Ibid. Rather, the case involved substantive issues relating to local land use. "We are obliged to respect established principles of local governance. These principles require exhaustion of remedies so that the board of adjustment, as a policy-making body, may be called upon to exercise its statutory authority to review and pass upon the challenged decisions of local land use officers." Ibid. As a result, we dismissed the case finding that plaintiff failed to properly exhaust available administrative remedies. Id. at 324.

The instant case is more comparable to 21st Century Amusements in that it involves both the interpretation as well as the application of the ordinance. It can also be distinguished from Supermarkets Oil, where the question presented to the court was purely legal; there was no dispute that the plaintiff was operating a car wash, the purpose behind operation of the car wash or regarding the factual setting surrounding the operation of the car wash. The dispute was strictly whether a "car wash" fell within the legal definition of a "public garage" under the statute. Supermarkets Oil, supra, 126 N.J. Super. at 507. The board of adjustment would not have had any particular expertise on this legal interpretation and the straightforward nature of the facts negating any reason for the zoning board to develop a factual record for the court's review.

Here, the question presented involves interpretation of factual issues as applied to a legal determination. It is not simply whether "trees" fall within the legal definition of a "fence" under the ordinance. Our Supreme Court already decided that issue in Bubis v. Kassin, 184 N.J. 612 (2005), holding that a row of trees may constitute a "fence" under a zoning law.*fn3 However, that decision does not render a row of trees a "fence" in every case. Whether a row of trees constitutes a "fence" therefore becomes a case by case determination, involving a more fact intensive review. In determining whether defendants' three trees constitute a "fence," considerations such as the size of the trees, the positioning, the use and placement, the purpose behind their planting, and any other factors that make the trees more or less likely to be considered a "fence" must be taken into account.

As we noted in Sitkowski, in discussing the merits of exhausting administrative remedies in zoning cases, a party cannot bypass the twenty-day time restraint provided in N.J.S.A. 40:55D-72a by cloaking the request as an interpretation of law.

In Sitkowski, the plaintiff acquired a building permit and began construction. Supra, 238 N.J. Super. at 257. Five months after construction had commenced, one of the plaintiff's neighbor's appealed to the board of adjustment, and the board found that the plaintiff was in violation of a local zoning ordinance and issued a stop order. Id. at 258-59. The plaintiff then filed an action in lieu of prerogative writs and the trial court set aside the board's order. Id. at 259. We affirmed, finding the twenty-day time limitation was created to "insulate the recipient of a building permit or other favorable disposition from the threat of unrestrained future challenge." Id. at 260.

Plaintiff does not dispute that defendants provided him with a copy of the original landscaping plan on August 13, 2010. The plan clearly indicated that defendants were planting the subject trees. In fact, the initial plan had more trees (five) than were eventually planted (three). Both the municipal court judge and the borough's attorney indicated to plaintiff that this was a matter that may be best handled by the Board. The current action was not filed until November 16, 2010, over three months after plaintiff received the landscaping plan, which is when he should have known that defendants were planning to plant trees that might interfere with his view. Similar to Sitkowski, permitting plaintiff to file the instant action would "render nugatory the time constraint provided by N.J.S.A. 40:55D-72a." Ibid.

If plaintiff filed a timely appeal with the Board and was denied, the trial court would have had the benefit of reviewing the determination with a developed factual record produced at the local level as well as a written explanation produced by individuals familiar with the municipality and its land use policies. See First Montclair Partner, L.P. v. Herod Redevelopment I, L.L.C., 381 N.J. Super. 298, 302 (App. Div. 2005) ("municipal bodies are composed of local citizens who are far more familiar with the municipality's characteristics and interests and therefore uniquely equipped to resolve such controversies") (citing Ward v. Scott, 16 N.J. 16, 23 (1954)).

Accordingly, the dismissal of plaintiff's action in lieu of prerogative writs is affirmed.

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