Opinion
DOCKET NO. A-1239-12T3
06-25-2014
LANCE AUSTENBERG, Plaintiff-Appellant, v. LAND USE BOARD OF THE TOWNSHIP OF BEDMINSTER; TOWNSHIP OF BEDMINSTER, a body politic; NORTH JERSEY 1225 ROUTE 206, LLC, a New Jersey Limited Liability Company; and CENTRAL JERSEY CONSTRUCTION CO., INC., Defendants-Respondents.
Lance Austenberg, appellant, argued the cause pro se. David H. Soloway argued the cause for respondent Land Use Board of the Township of Bedminster (Vogel, Chait, Collins and Schneider, attorneys; Mr. Soloway, of counsel and on the brief). John P. Belardo argued the cause for respondent Township of Bedminster (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Belardo, on the joint brief). Tracy B. Bussel argued the cause for respondents Land Use Board of the Township of Bedminster & Township of Bedminster (Gebhardt & Kiefer, PC, attorneys; Richard P. Cushing, on the joint brief). Thaddeus R. Maciag argued the cause for respondents North Jersey 1225 Route 206, LLC, and Central Jersey Construction, Inc.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson, Lihotz, and Maven.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-2006-10.
Lance Austenberg, appellant, argued the cause pro se.
David H. Soloway argued the cause for respondent Land Use Board of the Township of Bedminster (Vogel, Chait, Collins and Schneider, attorneys; Mr. Soloway, of counsel and on the brief).
John P. Belardo argued the cause for respondent Township of Bedminster (McElroy, Deutsch, Mulvaney & Carpenter, LLP, attorneys; Mr. Belardo, on the joint brief).
Tracy B. Bussel argued the cause for respondents Land Use Board of the Township of Bedminster & Township of Bedminster (Gebhardt & Kiefer, PC, attorneys; Richard P. Cushing, on the joint brief).
Thaddeus R. Maciag argued the cause for respondents North Jersey 1225 Route 206, LLC, and Central Jersey Construction, Inc. PER CURIAM
Plaintiff appeals from the October 5, 2012 trial court order dismissing his complaint in lieu of prerogative writs arising out of his challenge to an action by defendant, the Land Use Board of the Township of Bedminster (Board), which action plaintiff claims has permitted the operation of a construction yard adjacent to his property. Plaintiff contends the operation is an illegal, nonconforming use. We disagree and affirm.
The present action is not the first time plaintiff has challenged the construction yard's activities. To give historical context to this appeal, we review the procedural history of this case, in addition to the factual record before the Board, which is essentially undisputed.
In August 2000, plaintiff purchased a residential property designated as Block 41, Lot 30 on the Township of Bedminster tax map. Plaintiff's property adjoins Block 41, Lot 29 owned by defendant, North Jersey 1225 Route 206, LLC. Defendant, Central Jersey Construction, Inc., is a tenant on the property. Peter Gianetti is a principal of both companies. Since 1946, Lot 29 has been zoned for residential use in the Township's R-3 zone, but its commercial use is authorized by a pre-existing, nonconforming use variance.
Bedminster Township (Township), dating back to the 1980s, has been embroiled in disputes with the Gianetti family over how Lot 29 has been used for the various commercial enterprises operated on the property. In 1988, the Township cited Gianetti Excavating Co., Inc. for various zoning ordinance violations. The parties reached a settlement, the terms of which were placed on the record before the municipal court judge on July 25, 1988.
In 2000, plaintiff purchased Lot 30, which is adjacent to Lot 29. In February 2004, the Township cited Michael Gianetti, who became the new owner of Lot 29 in the late 1990s, for zoning ordinance violations. He pled not guilty to the charges and appeared before the municipal court judge for a hearing. The municipal judge found there had been an illegal expansion of a permitted nonconforming use and assessed a $200 daily fine against Gianetti for each day the illegal expansion continued. Gianetti appealed to the Law Division. Prior to the court's de novo review, Gianetti and the Township entered into an agreement, which resolved all outstanding issues in dispute between the parties. The agreement was memorialized in a Deed Restriction Agreement, which the Township Committee incorporated into Resolution 2004-197, adopted on November 15, 2004, and recorded with the Somerset County Clerk.
In July 2006, plaintiff commenced an action in Superior Court, seeking to set aside the 1988 and 2004 agreements. The court dismissed the complaint without prejudice after concluding the matter should have proceeded as a complaint in lieu of prerogative writs and was well-beyond the forty-five-day time period in which to bring such actions. On appeal, we affirmed the dismissal of the complaint as to the municipal defendants, but reversed and remanded that portion of the trial order dismissing plaintiff's tort claims asserted against the non-municipal defendants. Austenberg v. Gianetti, No. A-0021-07 (App. Div. Oct. 14, 2008) (slip op. at 2-3) ("Austenberg I"). As to the claims asserted against those defendants alleging nuisance, harassment, and emotional distress, we found the trial court failed to make the requisite findings of fact and conclusions law, thereby impeding meaningful appellate review. Id. at 12-13. Upon remand, however, the parties entered into a stipulation of dismissal with prejudice.
In June 2010, Francis P. Linnus, an attorney retained by plaintiff, filed a "Request for Interpretation or Decision on Special Questions Relating to the Zoning Ordinance Pursuant to N.J.S.A. 40:55D-70(b)[.]" Plaintiff's request sought an interpretation or decision in connection with nine specific questions:
[1] Whether the activities being conducted on Block 41 Lot 29 constitute a pre-existing nonconforming use pursuant to N.J.S.A. 40:55D-68 and Section 13-507 of the Bedminster Township Zoning and Land Use Ordinance.
[2] Whether any commercial or industrial use is permitted on any portion of Block 41 Lot 29 without a variance since the property is currently located and has continuously been located in a residential zone since 1947.
[3] If the answer to the above special question is yes, whether commercial or industrial use is permitted on Tract 2 of Block 41 Lot 29, and if so, whether it is permitted on the entire lot.
[4] Pursuant to the Bedminster Township Zoning and Land Use Ordinance, specifically 13-602.2 and 13-105.a, are any commercial vehicles (or trailers, equipment) permitted on a residentially zoned lot without a variance or a determination by the Board of Adjustment that these uses constitute a pre-existing nonconforming use under N.J.S.A. 40:55D-68 and Section 13-507 of the Bedminster Township Zoning and Land Use Ordinance and, if so, how many?
[5] Whether subletting of Block 41 Lot 29 to tenants or other commercial entities is permitted by Section 13-602.6 of the Bedminster Township Zoning and Land Use Ordinance.
[6] Whether Sections 13-105 or 13-405.5.c of the Bedminster Township Zoning and Land Use Ordinance permits storage of materials (including dumping, loading and distribution) on Block 41 Lot 29.
[7] In the event a certification of pre-existing nonconforming use has been issued by the Board of Adjustment pursuant to N.J.S.A. 40:55D-68 and Section 13-507 of the Bedminster Township Zoning and Land Use Ordinance, what types of commercial vehicles or businesses are permitted on Block 41 Lot 29?
[8] Whether construction activities, specifically the operation of loaders, York rakes, backhoes, bulldozers, dumpster trucks and excavators, are permitted to take place on Block 41 Lot 29 and, if so, what is the nature and extent of permitted construction activities?
[9] Whether the Township of Bedminster Zoning Officer is required by Section 13-1002.3 of the Bedminster Township Zoning and Land Use Ordinance and N.J.S.A. 40:55D-18 to enforce compliance with the Bedminster Township Zoning and Land Use Ordinance.
At the hearing, prior to proceeding to consider the merits of plaintiff's request, the Board determined that plaintiff's first six requests had previously been addressed in the earlier litigation, and declined to revisit those issues. The Board therefore limited the hearing to consideration of whether there had been an expansion of the nonconforming use of the property. Upon conclusion of the hearing, the Board determined Lot 29 was being utilized substantially in accordance with the provisions of the 2004 Agreement, and there had been no unlawful expansion. It found, however, vehicles located on the property should be restricted to the parking areas, and materials located on the property should be stored in the storage areas. It further found that areas not restricted within the commercial construction yard could be used for customary and incidental construction yard activities, such as loading and unloading of vehicles, equipment, and similar activities, which would be subordinate to and accessory to the commercial construction yard.
The Board's findings and conclusions were memorialized in Resolution #2010-027 on October 14, 2010. In the resolution, the Board concluded that while there were some minor violations of the 2004 Agreement, the activities themselves were appropriate for the commercial construction yard use and accordingly did not constitute an unlawful expansion of the preexisting, nonconforming use. The Board rendered an advisory recommendation to the Township Zoning Officer to continue his routine investigation of the property for possible violations of the 1988 Agreement and 2004 Agreement.
On November 24, 2010, plaintiff filed the present complaint in lieu of prerogative writs, alleging the Board's determination was arbitrary, capricious and unreasonable. Plaintiff additionally sought declaratory relief, to include a declaration that the 1988 and 2004 Agreements did not preempt local ordinances and the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and the use of Lot 29 as a contractor's yard is an illegal nonconforming use. Plaintiff also alleged an unlawful taking of his property without just compensation, civil rights violations, and asserted nuisance claims against North Jersey 1225 Route 206, LLC, whose principal, Peter Gianetti, plaintiff alleged "has occupied and commercially operated on [Lot 29] since at least 1987 under various corporate entities."
Defendants filed answers to plaintiff's complaint, and consistent with the trial court's case management order, the parties exchanged discovery between February and April 2011. Thereafter, defendants filed motions for summary judgment, and plaintiff cross-moved for summary judgment. With the exception of plaintiff's claims related to the Board's findings on questions seven, eight, and nine of his request, the court granted summary judgment on the remaining counts alleged in the complaint, with prejudice.
In granting summary judgment, the court found the Board did not act arbitrarily, capriciously or unreasonably, when it refused to consider plaintiff's first six questions. The court found those six questions essentially addressed "whether there was an existing non-conforming use and -- on the property and whether the use is permitted." The court agreed that Austenberg I resolved those issues with its affirmance of the trial court's determination that plaintiff's action challenging the validity of the 1988 and 2004 Agreements was untimely. Austenberg I, supra, slip op. at 10.
Addressing the taking claim, the court found plaintiff had no cause of action for an unlawful taking of his property based upon his claim the Township failed to regulate Lot 29. The court additionally noted:
[P]laintiff[] [himself] admit[s] that the claim is not [ripe], so that would be a second ground for a dismissal, which is not really contested. It's not [ripe] because under our case law, among other things, Rivkin v. Dover Rent Leveling Board, 143 N.J. 352 [(1996)], the parties must exhaust their remedies through [a] prerogative writ proceeding before a federal claim of this kind becomes ripe.
Finally, in granting summary judgment dismissing the civil rights claim, the court, relying upon our decision in Rezem Family Assocs. v. Borough of Millstone, 423 N.J. Super. 103 (App. Div. 2011), concluded plaintiff's allegations failed to rise "to the level of an issue that would shock the conscience."
The only claim preserved for further action was plaintiff's challenge to the Board's decision as to questions seven, eight, and nine of the request and, in particular, plaintiff's claim that defendants expanded the nonconforming use or, alternatively, violated the restrictions set forth in the 1988 and 2004 agreements. The court conducted a trial based upon the record before the Board. The court found:
The evidence amply supports the Board's essential findings. The 2004 deed restrictions, which mimic[] the resolution adopted by the Township at that time, fleshes out what was meant by commercial purposes. The activities specifically mentioned were tenant parking, truck parking for up to 50 vehicles, equipment parking, gravel parking lot, storage of work related materials. Deed, Paragraphs Four, Five, Seven, Eight and Ten.
The deed also provided for visitor, employee parking, and for the removal of only abandoned vehicles and debris . . . .
The accompanying map shows specific areas for parking for vehicles and equipment and for storage of materials.
Together the document and the map establish a right to an active use which is with as many as 50 vehicles entering and leaving the site without any time restriction while depositing materials thereon.
Also, it is clear that the permission to use the property included equipment not just vehicles.
In this connection the Court must also note that that Gianettis . . . are not limited to the exact same intensity of use as existed in 2004. Under our case law even, for instance, if a restaurant succeeds in attracting more customers, it is not thereby expanding a nonconforming use. . . .
In this case the Board affirmatively dealt with the exception -- dealt with the exception of parking -- affirmatively dealt with the placing of storage materials in the parking area which the Board affirmatively dealt with. Resolution, Paragraphs Three and Four.
As to other items, plaintiff has failed to demonstrate that the Board's determination that the 2004 baseline was not exceeded was arbitrary or capricious.
The court additionally noted plaintiff claimed a number of activities, such as grinding of lawn mower blades, the rental of dumpsters, the dumping of material, and fumes emanating from trucks, constituted an impermissible expansion. The court found, however, "at no point did [plaintiff] provide proof to the point where the Board's contrary finding was arbitrary, that what exists now is any different from what existed on the site in 2004."
Based upon its findings, the court dismissed the remaining claims set forth in the complaint. The present appeal followed.
On appeal, plaintiff raises the following points for our consideration:
POINT I
THE EXISTENCE OF A LAWFUL PRE-EXISTING NONCONFORMING USE ON BLOCK 41 LOT 29 HAS NOT BEEN ESTABLISHED IN ACCORDANCE WITH MLUL. A VARIANCE IS REQUIRED TO PERMIT A NONCONFORMING USE.
POINT II
THE NONCONFORMING USE THAT IS PRESENT ON BLOCK 41 LOT 29 HAS SUBSTANTIALLY EXPANDED. THE LAND OWNER MUST ALSO APPLY FOR A VARIANCE TO PERMIT AN EXPANSION OF A NONCONFORMING USE.
POINT III
THE TOWNSHIP FINALLY ADMITS THAT THE DEED RESTRICTION GOVERNS THE USE OF THE PROPERTY AND PERMITS ITS NONCONFORMING USE, A FACT THAT THEY ADAMANTLY DENIED WHEN PREVIOUSLY BEFORE THE APPELLATE DIVISION. THE DEED RESTRICTION MUST BE NULLIFIED, VOIDED OR OTHERWISE ELIMINATED.
POINT IV
THE TRIAL JUDGE INCORRECTLY DISMISSED PLAINTIFF'S CIVIL RIGHTS CLAIM.
POINT V
THE LAND USE BOARD ACTED ARBITRARILY, CAPRICIOUSLY AND UNREASONABLY.
POINT VI
THE TRIAL JUDGE ERRED.
Points I and III are plaintiff's renewed challenges to the validity of the 1988 and 2004 Agreements, challenges we have previously addressed in Austenberg I:
Count one of plaintiff's complaint challenged the municipal entities' actions in executing the 1988 and 2004 agreement. Challenges to municipal actions must be presented by filing a prerogative writ action, R. 4:69-1, and are subject to the forty-five-day limitations period enunciated in Rule 4:69(b)(3). The time limit is
necessary to provide certainty and repose to public entities. The facts presented offer no basis for an enlargement of that time frame to permit plaintiff's untimely action.
Based upon our review of the record, we infer the motion judge recognized the claims asserted against the municipal entities seeking redress regarding the 1988 and the 2004 Agreements were untimely, warranting dismissal. Dismissal was without prejudice to plaintiff's right to timely file future claims that are properly presented.
[Austenberg I, supra, slip. op at 10-11 (citations omitted).]
Plaintiff's contention in Point V that the Board's decision in declining to address the first six questions in his request was arbitrary, capricious and unreasonable, is also a disguised attempt to revisit issues previously resolved in Austenberg I. Thus, the claims asserted in Points I, III, and V are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Addressing Point II, the Board found there had been no substantial expansion of the nonconforming use on Lot 29. A municipal board's fact-finding should control if supported by substantial evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). Here, the Board conducted a hearing at which plaintiff and his spouse, Melissa Austenberg, testified. The Board also considered comments offered by Township Engineer, Paul W. Ferriero, who was present at the hearing and reported that the Township zoning officer had been given direction by the Township attorney to handle the investigations of matters that go on out there. Ferriero represented that the zoning officer visited Lot 29 "frequently," at least "on a monthly basis" and "provides feedback to the property owner, identifies issues that he determines may be violations or potential violations." In addition, the Board reviewed the following exhibits: (1) correspondence from plaintiff's counsel, Linnus, and the application packet submitted with his December 27, 2009 request, the 1988 and 2004 Agreements, DVD of videos and photographs taken by plaintiff, which depict various activities taking place on Lot 29, correspondence to the Township zoning officer from plaintiff alleging numerous violations of the 2004 deed restriction, and our unpublished opinion in Austenberg I.
Based upon its consideration of the testimony and the exhibits submitted for its consideration, the Board determined there had been no substantial expansion of the permitted nonconforming use on Lot 29. It acknowledged there had been minor violations, but concluded the activities on Lot 29 remained appropriate for the commercial construction yard use and did not constitute an unlawful expansion of the pre-existing, nonconforming use.
These findings are supported by substantial credible evidence in the record. The Board credited the representations from its zoning officer that where there had been violations, the zoning officer met with the landowner to address the issues, and also regularly visited the site to ensure the landowner's continued compliance with zoning requirements. Plaintiff acknowledged in his testimony before the Board that the zoning officer had intervened on occasions where he had complained. We discern nothing in the Board's findings reflecting arbitrary, capricious or unreasonable decision-making. Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment of Trenton, 410 N.J. Super. 255, 263 (App. Div. 2009). As the Board stated in its resolution, plaintiff bore the burden of establishing that a substantial expansion of nonconforming use had occurred.
In evaluating plaintiff's appeal, our standard of review is the same standard as that of the trial court when it considers an appeal of a municipal board's action. Cohen v. Bd. of Adjustment, Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007); New York SMSA, Ltd. P'ship v. Bd. of Adjustment, Twp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004). "[A] decision of a zoning board may be set aside only when it is arbitrary, capricious or unreasonable. A Court will not substitute its judgment for that of a board even when it is doubtful about the wisdom of the action." Cell South of N.J., Inc. v. Zoning Bd. of Adjustment, W. Windsor Twp., 172 N.J. 75, 81 (2002) (citations and internal quotation marks omitted); Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296-97 (1965).
"Boards of adjustment, 'because of their peculiar knowledge of local conditions, must be allowed wide latitude in the exercise of the delegated discretion.'" Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Medici v. BPR Co., 107 N.J. 1, 23 (1987)). We "will not disturb a board's decision unless we find a clear abuse of discretion." Cell South, supra, 172 N.J. at 82; see also Kramer, supra, 45 N.J. at 296-97. Measured under these standards, the Board properly concluded plaintiff failed to meet the requisite burden of establishing there had been a substantial expansion of a nonconforming use and we find no such clear abuse of its discretion on the part of the Board.
Plaintiff's remaining claim that the trial court erred in dismissing his civil rights claim is without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Buchsbaum in his October 5, 2012 oral opinion. We add the following brief comments.
Claims for civil rights violations under 42 U.S.C.A. § 1983 require proof of two key components. "[T]he first task . . . is to identify the state actor, 'the person acting under color of law,' that has caused the alleged deprivation." Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 363 (citing Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611, 636 (1978)), cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996). "The second task is to identify a 'right, privilege or immunity' secured to the claimant by the Constitution or other federal laws of the United States." Ibid. (quoting 42 U.S.C.A. § 1983).
In Rivkin, supra, the Court stated::
[A]bsent egregious misconduct that shocks the conscience in the sense of violating civilized norms of governance, or invidious discrimination on the part of a board member or board, so long as the State provides a plain, adequate and timely remedy to redress irregularities in the proceedings, a party aggrieved by the determinations of a municipal rent leveling board does not have a claim for relief under 42 U.S.C.A. § 1983.
[Rivkin, supra, 143 N.J. at 358.]
On appeal, we apply a plenary standard of review from a trial court's decision to grant a motion to dismiss pursuant to Rule 4:6-2(e). Sickles v. Cabot Corp., 379 N.J. Super. 100, 106, (App. Div.), certif. denied, 185 N.J. 297 (2005). We accord no deference to the trial court's legal conclusions. Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied and appeal dismissed, 208 N.J. 366 (2011). Our task is to review the pleadings with great liberality in an effort to determine whether the fundament of a cause of action may be gleaned from the pleadings. Printing Mart-Morristown v. Sharp Elects. Corp., 116 N.J. 739, 746 (1989).
Count four of plaintiff's amended complaint alleges the actions of the Township and Board violated 42 U.S.C.A. § 1983, causing plaintiff to be "deprived of his constitutionally guaranteed rights of liberty and property secured and guaranteed under the Fifth and Fourteenth Amendments." There are, however, no facts alleged in plaintiff's complaint, which constitute "egregious misconduct" or that "shock the conscience" in a substantive constitutional sense. Nor does the record reflect any violation of procedural due process. Hence, the trial court properly dismissed those claims asserted pursuant to 42 U.S.C.A. § 1983.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION