Opinion
DOCKET NO. A-5288-14T1
02-10-2017
LIBERTY STORAGE, LLC and JOHN MONDRY, Plaintiffs-Appellants, v. THE CITY OF JERSEY CITY and NICK TAYLOR, ZONING OFFICER OF THE CITY OF JERSEY CITY, Defendants, and GXR AUTO BODY CORP and METRO REALTY, INC., Defendants-Respondents.
Ira E. Weiner argued the cause for appellants (Beattie Padovano, LLC, attorneys; Mr. Weiner, of counsel and on the briefs; Martin R. Kafafian and Mariya Gonor, on the briefs). Jennifer Borek argued the cause for respondents (Genova Burns, LLC and William J. Pollinger, P.A., attorneys for respondents; Ms. Borek and Mr. Pollinger, of counsel and on the brief; Jenna M. Beatrice and Thomas P. Leane, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Alvarez and Manahan. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-5077-14. Ira E. Weiner argued the cause for appellants (Beattie Padovano, LLC, attorneys; Mr. Weiner, of counsel and on the briefs; Martin R. Kafafian and Mariya Gonor, on the briefs). Jennifer Borek argued the cause for respondents (Genova Burns, LLC and William J. Pollinger, P.A., attorneys for respondents; Ms. Borek and Mr. Pollinger, of counsel and on the brief; Jenna M. Beatrice and Thomas P. Leane, on the brief). PER CURIAM
Plaintiffs Liberty Storage, LLC (Liberty) and John Mondry (Mondry) (collectively, plaintiffs) appeal from a Law Division order granting summary judgment in favor of defendants GXR Auto Body Corporation (GXR) and Metro Realty, Inc. (Metro Realty) (collectively, defendants). Plaintiffs originally filed a complaint in lieu of prerogative writs against the City of Jersey City, its zoning officer, Nick Taylor, and defendants. On appeal, plaintiffs have dismissed the action against Jersey City and its zoning officer.
The Law Division judge dismissed the complaint on the sole basis of plaintiffs' failure to exhaust administrative remedies. As we have determined that an action in lieu of prerogative writs ordinarily requiring exhaustion of administrative remedies may only be addressed to municipal agency actions, we reverse and remand for further proceedings.
We recite the following facts as those relevant to our decision. Liberty is a self-storage business in Jersey City. Mondry is the principal of Liberty. Metro Realty owns property designated on the Jersey City Tax Map as Block 2701, Lot 39 (formerly Block 1505, Lot C1.PL) (the property). GXR occupies the property operating a junkyard business. The property is located between two former railroad tracks owned by Consolidated Conrail in a highly industrialized area of Jersey City, and is located approximately one mile from plaintiffs' property. The property was previously owned by Lehigh Valley Railroad Company, prior to being deeded to Vincent Liebhart. The Liebhart family has used the property for automobile storage since the 1950s. In 1992, the principals of Metro, members of the Liebhart family, formed GXR, with another individual, in furtherance of the automobile storage operation.
In December 1993, GXR applied to the State of New Jersey Motor Vehicle Commission for a motor vehicle junkyard license. The Jersey City zoning officer at the time, Anthony Lambiase, approved the application as to "the location, establishment and maintenance of the motor vehicle junkyard[.]" GXR also applied for and was approved by Jersey City for second-hand, used motor vehicle, and junkyard licenses. GXR has maintained these licenses over the years.
In July 2005, Lambiase, sent a notice of violation to Consolidated Conrail, defendants' neighbor, stating that junkyards of any type were not permitted "within the 'Port Industrial District,' as per the 'Jersey City Zoning Map' last amended October 2004." In late August 2006, defendants wrote to Lambiase requesting an issuance of a Certificate of Non-Conformity for their property, which was also located in the Port Industrial District. Defendants' request was denied as untimely because its application for a Certificate of Non-Conformity had not been made within one year of the adoption of the zoning ordinance as required under N.J.S.A. 40:55D-68. Thereafter, defendants filed an appeal with Jersey City.
In October 2007, the Division of City Planning wrote to defendants advising them that since their appeal was incomplete, it would be dismissed if defendant did not contact the office within thirty days. As no certificate was ever issued, we presume that the appeal was dismissed. --------
Defendants' property is located within an area of Jersey City designated for redevelopment in September 2008. The redevelopment plan (the plan) involved transformation of the area from its historically industrial uses to residential uses. The plan prohibited junkyards except for permitted uses of the property that were existing at the time of the plan's enactment.
In November 2014, plaintiffs filed a complaint in lieu of prerogative writs. Plaintiffs filed an amended complaint in April 2015, alleging that defendants have been and continue to violate the uses permitted in the plan and, prior to the enactment of the plan, uses permitted by the Jersey City Zoning Code. The amended complaint sought to compel the City and Taylor, the then zoning officer, to enforce its zoning code. The amended complaint sought: (1) a declaration that defendants' junkyard operation was not a permitted use under the Port Industrial District; (2) to enjoin defendants from conducting any further junkyard operations without first obtaining appropriate zoning approvals; and (3) to compel the City and its zoning officer to enforce its zoning code.
Defendants filed a motion for summary judgment seeking to dismiss the amended complaint. Jersey City also moved for summary judgment. Plaintiffs opposed both motions. During oral argument, defendants argued that plaintiffs lacked standing to bring the action since the matter in dispute did not involve an application that would affect the integrity of the zoning plan, but rather involved a pre-existing nonconforming use, for which plaintiffs did not allege they had a "special interest." Defendants further argued that the doctrine of laches barred plaintiffs from bringing the action because of Mondry's awareness of the existence of a junkyard for at least ten years. Plaintiffs, in turn, argued that defendants' junkyard operation had expanded. As to standing, plaintiffs' argued that it had standing under the Municipal Land Use Law to have Jersey City enforce its own ordinance.
In reaching his decision, the Law Division judge did not make specific findings whether plaintiffs had standing or whether laches barred plaintiffs from bringing the action. The judge held that the dismissal was based on plaintiffs' failure to exhaust all administrative remedies. The judge also noted that "[p]laintiff[s] here seek[] to bypass the governing body altogether, and have not established that they are a competing business that 'may be particularly well equipped to frame the challenge and to provide the background that will illuminate its merits and faults.'" (quoting DePetro v. Twp. of Wayne Planning Bd., 367 N.J. Super. 161, 172 (App. Div.), certif. denied, 181 N.J. 544 (2004)).
The judge held that "[b]y plaintiff's own admission, they have not made any complaint or sought formal relief from the municipality, including City Council or the zoning officer, prior to commencing the action." The judge further held that plaintiffs were mandated to exhaust administrative remedies before initiating their complaint, and that the matter involved the interpretation and application of local ordinances and the plan. As such, the judge concluded it would be "best if the record is made at the local level first." Accordingly, the judge entered the order dismissing the amended complaint as to all defendants.
Plaintiffs filed a notice of appeal on July 24, 2015. On September 16, 2015, plaintiffs withdrew their appeal as to Jersey City and Taylor.
Plaintiffs raise one point on appeal.
POINT I
THE TRIAL COURT ERRED IN DISMISSING THE COMPLAINT BASED ON THE DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES.
"A ruling on summary judgment is reviewed de novo." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citing Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014)). Thus, appellate review requires application of the same standard which governs the trial court. Ibid. (citing Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012)).
A motion for summary judgment should be granted when there are no genuine issues of material fact in dispute and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Facts are to be viewed in a light most favorable to the non-moving party. Brill, 142 N.J. at 540.
Plaintiffs argue that the exhaustion of remedies doctrine does not apply because (1) no viable administrative remedy exists; (2) the suit was brought under statutory authority not requiring the exhaustion of administrative remedies; (3) the relief sought is legal and thus, proper before the court; and (4) pursuing administrative remedies would be futile.
Since plaintiffs have dismissed Jersey City and its zoning officer on appeal, in part, plaintiffs' requested relief in the amended complaint against those municipal actors is now moot. Specifically, plaintiffs' averred that Jersey City and Taylor be compelled to enforce the zoning code and be ordered to enforce any court order enjoining defendants from continuing the operation of the junkyard is moot. After dismissal of Jersey City and Taylor, plaintiffs' remaining averments seek a declaration that defendants' junkyard operation was not a permitted use and that such continued use is a violation of the terms of the plan. They also seek injunctive relief.
Stated succinctly, we hold the dismissal of the municipal actors and therefore, the relief sought against those municipal actors, converts the action from one in lieu of prerogative writs to an action between private parties for injunctive relief pursuant to N.J.S.A. 40:55D-18.
Actions in lieu of prerogative writs generally require exhaustion of administrative remedies while actions brought under N.J.S.A. 40:55D-18 for injunctive relief do not. See Mullen v. Ippolito Corp., 428 N.J. Super. 85, 102 (App. Div. 2012) ("[T]he prerogative writ has been historically used in our State as a comprehensive safeguard against official wrong." (internal quotation omitted)); Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 58 (1998) (internal quotations omitted) ("Derived from the common law, actions in lieu of prerogative writs vest courts with jurisdiction to review the actions of municipal agencies to ensure that such agencies are acting within their jurisdiction and according to law."); see R. 4:69-5 ("Except where it is manifest that the interest of justice requires otherwise, actions under R. 4:69 shall not be maintainable as long as there is available a right of review before an administrative agency which has not been exhausted."); but see Cox & Koenig, N.J. Zoning & Land Use Administration 131 (2016) ("There is no requirement that a party undertaking an injunctive action request a review by either the officer giving the permit or appeal such a decision to the zoning board pursuant to N.J.S.A. 40:55D-70a and N.J.S.A. 40:55D-72a.").
We next address plaintiffs' argument that N.J.S.A. 40:55D-18 authorizes an interested party to institute an action without first requiring that the party exhaust administrative remedies. An "interested party" may bring an action under N.J.S.A. 40:55D-18 of the Municipal Land Use Law to enforce a zoning ordinance:
In case any building or structure is erected, constructed, altered, repaired, converted, or maintained, or any building, structure or land is used in violation of this act or of any ordinance or other regulation made under
authority conferred hereby, the proper local authorities of the municipality or an interested party, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use, to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land, or to prevent any illegal act, conduct, business or use in or about such premises.
[(emphasis added).]
In Garrou v. Teaneck Tryon Co., 11 N.J. 294, 305 (1953), the Court held that an action for injunctive relief could be joined with an action in lieu of prerogative writs. In Garrou, plaintiff, the owner of a home in a residential zone, sought to enjoin his neighbor, defendant, from constructing a parking lot in violation of local ordinances. Id. at 296. Plaintiff also sought to compel the municipality to enforce its zoning ordinances against defendant. Id. at 298. The Court found that the trial court was incorrect in dismissing the prerogative writ claim since plaintiff could maintain both claims. Id. at 304. Further, it noted that:
[W]e find that the trial court should not have dismissed the plaintiff's claim seeking enforcement of the ordinance. Upon his showing there was a clear violation of the zoning ordinance which specially affected him adversely and which had, without any appropriate action resulting, been duly and sufficiently brought to the attention of the supervising official charged with the public duty of executing the ordinance . . . . It
may very well be that at the close of the entire case the trial court, upon proper application of the principles governing the extraordinary remedy of mandamus in proceedings in lieu of prerogative writs, will deny the relief sought against the defendant municipal officials; in any event, that would seem to be the course indicated if the plaintiff obtains wholly adequate injunctive relief against the private defendants.
[Ibid.]
Nonetheless, "either of th[e]se actions could proceed individually, or together." Cox & Koenig, N.J. Zoning & Land Use Administration, 130 (2016). Moreover, unlike in prerogative writ actions, in actions for injunctive relief brought under N.J.S.A. 40:55D-18, the exhaustion of remedies doctrine does not apply. Id. at 131. In Garrou, supra, 11 N.J. at 306, the Court specifically noted that when injunctive relief is sought, "[t]he ordinary requirement that administrative remedies be exhausted would clearly have no applicability." This is because the plaintiff would not be a party in the administrative proceedings, and would not be noticed on the applications of permits or certificates. Ibid.
Here, the judge granted dismissal of the amended complaint as to all causes of action for failure to exhaust administrative remedies. Since we conclude that the exhaustion of remedies does not apply to the injunctive relief sought by plaintiffs, the order of dismissal on those grounds must be vacated.
Although we have determined that the issues raised by defendants on appeal as to standing and laches must abide a hearing in the Law Division, we briefly address these issues solely for the purpose of guiding the trial court's analysis.
"New Jersey courts have long taken a liberal approach to standing in zoning cases and in that connection have broadly construed the [Municipal Land Use Law]'s definition of 'interested party.'" DePetro, supra, 367 N.J. Super. at 172. "Interested party" is defined under N.J.S.A. 40:55D-4 as:
[A]ny person, whether residing within or without the municipality, whose right use, acquire, or enjoy property is or may be affected by any action taken under this act, or whose right to use, acquire, or enjoy property under this act, or under any other law of this State or of the United States have been denied, violated or infringed by an action or a failure to act under this act.
Our courts have held that in order to have standing in a case involving a violation of a municipal zoning ordinance, an interested party must show "special damages." Morris v. Borough of Haledon, 24 N.J. Super. 171, 178 (App. Div. 1952). In Booth v. Bd. of Adjustment, Rockaway Twp., 50 N.J. 302, 305 (1967), the Court found that plaintiff, a private citizen and taxpayer, had standing to "challenge the establishment of a blacktop plan in a mining district," because "the contemplated blacktop use had a potential impact on the integrity of the zoning plan and the community welfare sufficient to permit the intervention of a citizen and taxpayer." In DePetro, supra, 367 N.J. Super. at 172-73, the court found that plaintiff, a competing business, had standing to challenge the planning board's site approval grant to defendant's proposed development.
Here, the judge cited to DePetro, without deciding the issue of standing by noting, that plaintiffs must establish that they are a competing business that may be "particularly well equipped to frame the challenge and to provide the background that will illuminate its merits and faults." Id. at 172. Whether the plaintiffs can demonstrate they are a competing business as in DePetro, or whether they can demonstrate "special damages" as in Morris requires a fact-finding analysis for resolution.
Defendants also maintain that plaintiffs have sat on their rights for years and thus are barred from bringing the claim. "Laches is an equitable doctrine, operating as an affirmative defense that precludes relief when there is 'an unexplainable and inexcusable delay' in exercising a right, which results in prejudice to another party." Fox v. Millman, 210 N.J. 401, 417-418 (2012) (quoting Cty. of Morris v. Fauver, 153 N.J. 80, 105 (1998)). This court has held that "a cause of action is deemed to accrue when facts exist which authorize one party to maintain an action against another." Marini v. Borough of Wanaque, 37 N.J. Super. 32, 38 (App. Div. 1955). Here, defendants argue that they and their predecessors operated a junkyard on the property since the 1950s and that plaintiffs had knowledge of the junkyard since at least 2005. In reply, plaintiffs argue that defendants have not shown actual harm by the delay. Again, the resolution of this issue requires a fact-finding analysis for resolution.
Finally, notwithstanding our discussion of these unresolved issues and related decisions of law, we express no view as to the outcome of the proceeding before the Law Division.
Reversed and remanded for further proceedings. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION