September 23, 2013
WHITE BEECHES GOLF & COUNTRY CLUB, INC., Plaintiff-Appellant,
ST. GABRIEL'S SYRIAN ORTHODOX CHURCH, THE ZONING BOARD OF ADJUSTMENT FOR THE BOROUGH OF HAWORTH, and THE BOROUGH OF HAWORTH, Defendants-Respondents
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 11, 2013
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4789-12.
Reginald Jenkins, Jr. argued the cause for appellant (Price, Meese, Shulman & D'Arminio, P.C., attorneys; Mr. Jenkins, of counsel and on the briefs).
David M. Watkins argued the cause for respondent St. Gabriel's Syrian Orthodox Church (Law Offices of David M. Watkins, attorneys; Marc A. Greenberg, on the brief).
Alexander T. West, Jr. argued the cause for respondent Zoning Board of Adjustment for the Borough of Haworth.
Peter J. Scandariato argued the cause for respondent Borough of Haworth (Phillips Nizer, LLP, attorneys; Mr. Scandariato, of counsel and on the brief).
Before Judges Fuentes, Simonelli, and Fasciale.
In this action in lieu of prerogative writs, plaintiff appeals from the judgment of the Law Division upholding a decision by the Zoning Board of Adjustment (the "Zoning Board") for the Borough of Haworth (the "Borough") denying plaintiff's appeal to the Zoning Board, as time-barred under N.J.S.A. 40:55D-72a. We affirm.
Plaintiff and St. Gabriel's Syrian Orthodox Church ("St. Gabriel's") own real property in the Borough. In 2011, St. Gabriel's sought approval from the Haworth Planning Board (the "Planning Board") to modify certain aspects of a previously-approved site plan. On November 10, 2011, David A. Hals, Borough Engineer, analyzed the request and determined that the proposed modifications did not require Planning Board approval because they were minor and otherwise materially conformed to the Borough's zoning requirements.
On December 7, 2011, Timothy Tracy, plaintiff's president, wrote a letter to Hals and the Borough's Construction Code Official Harry Kraus (the "Tracy letter"), questioning Hals' determination and asking Hals to "review and [provide an] opinion on this matter." On January 13, 2012, Hals responded to the Tracy letter indicating that his opinion remained the unchanged.
On February 16, 2012, plaintiff's counsel wrote a letter to the Zoning Board's attorney specifically citing N.J.S.A. 40:55D-70a in support of plaintiff's request for "an interpretation hearing" before the Zoning Board "in regard to the zoning interpretation presented by David A. Hals, P.E., Municipal Engineer on behalf of the Planning Board." Plaintiff's counsel enclosed five specific "exhibits" that he presumably believed were relevant to the Zoning Board's determination. Of particular relevance here, we note that plaintiff's counsel specifically asked the Zoning Board to consider his February 16, 2012 letter and "the accompanying documents" as plaintiff's objection "to the zoning interpretation made by Mr. Hals on January 13, 2012."
The Zoning Board conducted a public hearing on May 1, 2012, to consider plaintiff's appeal. After hearing from counsel for both plaintiff and St. Gabriel's, by a vote of three in favor and four opposed, the Zoning Board rejected a motion "that the Board of Adjustment [had] jurisdiction to hear testimony on the appeal" and therefore deemed plaintiff's appeal untimely under N.J.S.A. 40:55D-72a. On June 5, 2012, the Zoning Board adopted a resolution memorializing its decision.
Plaintiff thereafter filed this action in lieu of prerogative writs challenging the decision of the Zoning Board. Judge Menelaos W. Toskos conducted a hearing, at which plaintiff's counsel maintained that the Tracy letter constituted a timely appeal from Hals' November 10, 2011 determination and reiterated plaintiff's position that the February 16, 2012 "application" merely supplemented the Tracy letter.
Judge Toskos found that the Tracy letter was insufficient to serve as plaintiff's appeal to the Zoning Board because it merely "request[ed Hals] to reconsider his [November 10, 2011] opinion." The judge then concluded that plaintiff's February 16, 2012 actual "application" and accompanying correspondence from counsel was therefore untimely because plaintiff filed it more than twenty days from Hals' January 13, 2012 response to the Tracy letter. Judge Toskos then dismissed the complaint. This appeal followed.
On appeal to this court, plaintiff argues primarily that the trial judge erred in upholding the Zoning Board's conclusion that it lacked jurisdiction because (1) the Tracy letter constitutes sufficient notice of its appeal from Hals' November 10, 2011 determination; (2) its appeal was timely because it issued the Tracy letter within twenty days from Hals' November 2011 determination, and (3) its February 16, 2012 letter/application was "simply complementary" to the Tracy letter.
When reviewing a trial court's decision regarding the validity of a local board's determination, "we are bound by the same standards as was the trial court." Fallone Properties, L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J.Super. 552, 562 (App. Div. 2004). Courts must give deference to the actions and factual findings of local boards and may not disturb such findings unless they were arbitrary, capricious, or unreasonable. Id . at 560. A board's actions must be based on substantial evidence. Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 89 (2002). Courts review de novo local boards' determinations on questions of law. Wilson v. Brick Twp. Zoning Bd. of Adjustment, 405 N.J.Super. 189, 197 (App. Div. 2009).
With this standard in mind and after carefully reviewing the record developed before the trial court, we affirm substantially for the reasons Judge Toskos expressed in his December 3, 2012 oral opinion. We add the following brief comments.
N.J.S.A. 40:55D-72a states:
Appeals to the board of adjustment may be taken by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance or official map. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal. The officer from whom the appeal is taken shall immediately transmit to the board all the papers constituting the record upon which the action appealed from was taken. (Emphasis added).
The purpose of the twenty-day deadline is "to insulate the recipient of a building permit or other favorable disposition from the threat of unrestrained future challenge" and to "provide a degree of assurance that the recipient could rely on the decision of the administrative officer." Sitkowski v. Zoning Bd. of Adjustment of the Borough of Lavallette, 238 N.J.Super. 255, 260 (App. Div. 1990). Ordinarily, "the form and contents of a notice required by a statute . . . 'must be clear, definite, and explicit, and not ambiguous.'" Borough of Keyport v. Maropakis, 332 N.J.Super. 210, 222 (App. Div. 2000) (quoting Portage Shoe Mfg. Co. v. Reich, 53 N.J.Super. 600, 605 (App. Div. 1959)) (internal quotation marks omitted). The Tracy letter did not clearly express plaintiff's intent to appeal from Hals' November 10, 2011 determination. Thus, the letter is insufficient to constitute an appeal pursuant to the statute.
Here, the Borough does not require that those seeking appellate relief under N.J.S.A. 40:55D-72a complete a specific "Notice of Appeal" form. Plaintiff was thus required to communicate its intent to appeal by submitting a letter that would reasonably and unambiguously apprise the recipient of plaintiff's intention to appeal a particular decision made by "an administrative officer of the municipality based on or made in the enforcement of the zoning ordinance or official map." Ibid. At the very least, such a writing should identify with particularity the decision that the sender of the letter wishes to appeal, the date the decision was made, and the name and title of municipal official who made it.
An interested party must file an appeal within twenty days of the date the interested party knew or should have known of the Zoning Board's decision. Sitkowski, supra, 238 N.J.Super. at 260. Here, plaintiff's counsel admitted during the hearing before the Zoning Board that plaintiff knew about Hals' November 10, 2011 determination in late November or early December 2011, yet plaintiff waited until February 16, 2012 to seek appellate review. Thus, plaintiff filed its appeal well beyond twenty days from the date it became aware of the November determination.
Even if plaintiff now contends, which it has not, that it intended to appeal from Hals' January 13, 2012 response to the Tracy letter, rather than from Hals' November 10, 2011 determination, the record contains sufficient credible evidence to support the findings of both the Zoning Board and the trial judge that plaintiff failed to file a timely appeal from the January 13, 2012 letter. Although plaintiff characterizes its February 16, 2012 "application" as "simply complementary" to the Tracy letter, Judge Toskos correctly interpreted the Tracy letter as nothing more than a request for reconsideration. The February 16, 2012 letter from plaintiff's counsel was not "simply complimentary, " but rather acted as plaintiff's actual untimely appeal because plaintiff filed it more than twenty days from Hals' reconsideration decision.
We conclude that plaintiff's remaining arguments raised on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).