Opinion
DOCKET NO. A-1617-09T3
08-25-2011
KATHERINE NEWMARK, Plaintiff-Appellant, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF MENDHAM, and ROGER HANLEY, Defendants-Respondents, and THE TOWNSHIP OF MENDHAM, ERIN HANLEY, THOMAS HANLEY, and GAYLE HANLEY, Defendants.
Lawrence B. Litwin argued the cause for appellant. John M. Mills, III, argued the cause for respondents Board of Adjustment of The Township of Mendham and The Township of Mendham (Mills & Mills, P.C., attorneys; Mr. Mills, of counsel and on the brief). 1 Gary C. Algeier argued the cause for respondent Roger Hanley (Algeier Woodruff, P.C., attorneys; Mr. Algeier and Linda Geiger Kern, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2984-05.
Lawrence B. Litwin argued the cause for appellant.
John M. Mills, III, argued the cause for respondents Board of Adjustment of The Township of Mendham and The Township of Mendham (Mills & Mills, P.C., attorneys; Mr. Mills, of counsel and on the brief).
Although Mr. Mills' brief states "[t]his [b]rief is on behalf of both [the] Board of Adjustment of the Township of Mendham and the Township of Mendham[,]" we are in receipt of a letter dated April 16, 2010 from Maraziti, Falcon and Healey stating: (1) they represent the Township of Mendham (Township) "as [t]ownship [a]ttorneys and take no position as to this appeal; (2) the Township was not a party below and "remains a non-party"; and (3) although they made an appearance at the motion, their actual participation "in the appeal is not warranted nor appropriate unless the [c]ourt reverses the [o]rder of Judge Bozonelis and permits the filing of the [s]upplemental [c]omplaint naming the Township as a defendant." (Emphasis added).
Gary C. Algeier argued the cause for respondent Roger Hanley (Algeier Woodruff, P.C., attorneys; Mr. Algeier and Linda Geiger Kern, of counsel and on the brief). PER CURIAM
In this appeal, plaintiff Katherine Newmark appeals from the Law Division order denying her motion for relief in aid of litigant's rights pursuant to Rule 1:10-3 in connection with defendant Roger Hanley's (Hanley) illegal subdivision of a parcel of land owned by him without first securing subdivision approval from defendant, the Board of Adjustment of the Township of Mendham (Board). We affirm.
The relevant facts in this appeal were previously set forth in our unpublished opinion, Newmark v. Board of Adjustment, No. A-4857-05 (App. Div. July 19, 2007) (slip op. at 1-4):
Plaintiff owns property in Mendham Township designated as Lot 12, Block 126 on the tax map. Her property adjoins Lot 11, Block 126, owned by Roger, Erin and Thomas Hanley (the Hanleys). Lot 11 adjoins Lot 16, Block 126, also owned by the Hanleys. Plaintiff's and the Hanleys' lots are all located in an R-3 residential zone, requiring a minimum of three acres and all are undersized.
In January 2005, the Hanleys submitted an application for bulk variances to build a 3,554 square foot house on Lot 11, Block 126, which consists of .791 acres. Hanleys' Lot 16 is a corner lot consisting of 1.5 acres on which a 2,674 square foot home currently exists. Plaintiff's property consists of 1.5 acres on which a 2,542 square foot home currently exists. Lot 16 is a corner lot, which fronts on Washington Valley Road and a private right-of-way known as Martins Lane. Lot 11 also fronts on Martins Lane, as does plaintiff's Lot 12. In other words, the three lots sit side-by-side on Martins Lane, with Lot 16 occupying the corner of Martins Lane and Washington Valley Road.
. . . .
When the Hanleys submitted the application to the Zoning Board, it included plans for the proposed house on Lot 11. The architect who prepared the plans was a current member of the Zoning Board. In her complaint in lieu of prerogative writs, plaintiff sought to have the Zoning Board's proceedings and resolution declared null and void on the grounds that (1) the Zoning Board's decision was arbitrary, capricious, and unreasonable; and (2) the submission of plans prepared by the architect/member of the Zoning Board resulted in a conflict of interest.
After hearing the matter, the trial court determined that "there was unity of title, albeit . . . for a very short period of time." The court noted, however, that Gayle Hanley's Lot 16, on which a house is already built, is a corner lot fronting on both Martins Lane and Washington Valley Road. Relying on Chirichello v. Zoning Bd. of Adj., 78 N.J. 544 (1979), the court found that the lots had not merged because they fronted on different streets.
The trial court nonetheless vacated the Board's approval, concluding that the decision was tainted by the apparent conflict of interest resulting from the Hanleys' architect also serving as a member of the Board, notwithstanding his recusal from voting on the Hanley application. Both parties appealed. Citing Loechner v. Campoli, 49 N.J. 504 (1967), and the Court's more recent decision in Jock v. Zoning Board of Adjustment, 184 N.J. 562 (2005), we concluded that since both Lots 11 and 16 have a contiguous side yard border without intervening properties and because the lots were substandard, they merged when they came under common legal title, irrespective of how brief the common legal title may have been. Newmark v. Bd. of Adj., supra, slip op. at 8. We determined the "Hanleys, therefore, are required to obtain subdivision approval before the variance application can be considered." Id. at 8-9.
Our decision was filed on July 19, 2007, and on August 31, 2007, Hanley sold Lot 16 to John S. and Elise G. Paquette. Plaintiff learned of the conveyance sometime in 2008 and attempted to resolve the issue, to no avail. Plaintiff subsequently filed a motion to enforce litigant's rights pursuant to Rule 1:10-3.
The court conducted oral argument on the motion October 23, 2009. Plaintiff argued that because we had ruled on July 19, 2007, that Lot 11 and Lot 16 had merged, reversing the trial court on that issue, the Hanleys, in subsequently conveying one of their lots the following month, were in direct violation of our decision, and, therefore, relief pursuant to Rule 1:10-3 was appropriate.
The Board argued that N.J.S.A. 40:55D-55 (or "statute") "confers upon the municipality the right, but not necessarily the duty, to pursue an action to cause the lots to be joined[,] or to seek a penalty[,] or to set aside the conveyance and cause the lots to be . . . put together as one single entity." Additionally, the Board argued that the "two-year window [set forth in the statute] may or may not run based upon the notice provisions of [N.J.S.A.] 40:55D-55."
Following oral argument, the court issued its ruling from the bench, finding that although the $1000 fine provided in N.J.S.A. 40:55D-55 was mandatory, the time limitation also set forth in the statute prevented the municipality from filing an action for injunctive relief because two years had already elapsed since our decision. Therefore, the court found that although the Hanleys subdivided the lots without the requisite subdivision approval, the result was that Lot 11 would remain subdivided without development rights.
Addressing plaintiff's contention that the conveyance to the Paquettes violated our order, the court stated:
[U]nfortunately the two-year period has run here. . . . [A]n interested party . . . could have come forward and said to the Town, you must perform under [N.J.S.A. 40:55D-55]. For whatever reason, that didn't happen, even though you [plaintiff's attorney] wrote to the Town and they chose not to do anything, or whatever, and no lawsuit was filed before this [c]ourt in that regard.
. . . .
Is it a concern to the [c]ourt that Mr. Hanley, knowing of the Appellate Division decision, within a month or so . . . conveyed out to the Paquet[te]s in the face of that Appellate Division decision? Of course it is. But is there any legal bar that would prevent him from doing that, knowing that the lot was merged? . . . There simply is not a bar, except he's stuck with Lot 11. He can't do anything with it.
The court additionally reasoned:
This is not a case where Mr. Hanley is in violation of litigant[']s rights, because he conveyed out part of this parcel on an illegal subdivision. What [Hanley] is left with is a parcel of land . . . . It's an illegal subdivision, but it's not a problem.
Why is it not a problem? Can't build on it. Can't do anything with it. Just becomes part of another piece of property in that regard.
That [is] essentially what happened here. . . . [H]is approvals were set aside, and he has a merged lot. And he decided to convey the house part of that lot to the Paquet[te]s. He is now left with property that he can do nothing with unless he gets the appropriate approvals after the fact, and he may have a difficult time . . . in that regard.
[I]t certainly was . . . within a month of an Appellate Division decision telling him he doesn't have a subdivision. And the Town could have acted on that. They could have come in [with]in the two years and vacated that deed. Or, if you look under Subsection 18, an interested party could have come forward and sought to have the [T]own do that. Nothing was filed with me in that regard.
The court subsequently supplemented its oral decision with a written statement of reasons in which it explained its finding that Hanley's conveyance of Lot 16 to the Paquettes "was an illegal subdivision and the 'inescapable conclusion' is that it was calculated, knowing of the Appellate Division ruling." The court noted further that "while the Hanleys may not technically be in violation of litigant's rights, they were left with an undevelopable lot in Lot 11. This is a self[-]created hardship for variance purposes."
Finally, the court found that "the fact that the two years has run does not convey on [Hanley] any rights with respect to development of that property." The court reasoned that "while legal title to Lot 16 conveyed to a third party is effective, the remainder Lot 11 is left without any further development rights by virtue of the Hanleys['] actions." The present appeal followed.
On appeal plaintiff raises the following points for our consideration:
POINT I
LOT 11 AND LOT 16 MERGED AS A MATTER OF LAW AND COULD NOT BE DIVIDED WITHOUT PROPER SUBDIVISION APPROVAL.
POINT II
HANLEY VIOLATED THE APPELLATE COURT'S ORDER BY PROCEEDING WITH THE SALE OF LOT 16 WITHOUT FIRST OBTAINING SUBDIVISION APPROVAL.
POINT III
PLAINTIFF IS ENTITLED TO RELIEF UNDER R[ULE] 1:10-3 AS THE DEFENDANT HANLEY FAILED TO COMPLY WITH THE APPELLATE DIVISION'S DECISION.
POINT IV
PLAINTIFF IS ENTITLED TO RELIEF AGAINST DEFENDANT TOWNSHIP OF MENDHAM BECAUSE IT FAILED TO BRING ACTION AGAINST DEFENDANT HANLEY IN THE TWO-YEAR PERIOD[,] IN CONTRAVENTION OF THE APPELLATE DIVISION'S DECISION.
POINT V
DEFENDANT HANLEY SHOULD BE FINED $1[]000 FOR SELLING LOT 16 TO PAQUETTE WITHOUT FIRST PROCURING A SUBDIVISION APPROVAL.
POINT VI
PLAINTIFF SHOULD BE GRANTED LEAVE TO FILE A SUPPLEMENTAL COMPLAINT AS IT SETS FORTH TRANSACTIONS OR OCCURRENCES WHICH HAVE HAPPENED SINCE THE ORIGINAL PLEADINGS.
We have considered the points raised in light of the record, briefs filed, arguments of counsel, and applicable legal principles, and we reject each of the points advanced by plaintiff. We affirm substantially for the reasons set forth by Judge Theodore Bozonelis in his oral opinion of October 23, 2009, supplemented by his statement of reasons also issued October 23, 2009. We add the following comments.
Under N.J.S.A. 40:55D-55, an individual who "transfers or sells or agrees to transfer or sell, except pursuant to an agreement expressly conditioned on final subdivision approval," without first obtaining the proper subdivision approval, faces a potential penalty of up to $1000. In addition, "each lot disposition so made" that is the subject of a sale or transfer in violation of N.J.S.A. 40:55D-55 "may be deemed a separate violation" and therefore may trigger an additional penalty of up to $1000. The statute provides this remedy in the form of a civil penalty in addition to setting forth the potential cause of action that a municipality may file in order to either obtain injunctive relief, N.J.S.A. 40:55D-55(a), or "[t]o set aside and invalidate any conveyance made pursuant to such a contract of sale[.]" N.J.S.A. 40:55D-55(b).
Under the clear language of N.J.S.A. 40:55D-55, Hanley's sale of Lot 16, in the absence of prior subdivision approval or any condition upon such approval, violated the statute, and that violation subjected him to the $1000 civil penalty as well as the cause of action by the Township provided therein. However, the Township did not assess a penalty or take any other action.
Following the passage of the two-year time frame set forth in the statute, the Hanleys were no longer "subject to" liability under N.J.S.A. 40:55D-55. As the trial court observed, the statute permits an interested party, such as plaintiff, to file an action seeking injunctive relief, an order invalidating the sale that violated the statute, or imposition of the $1000 penalty. Plaintiff, however, did not avail herself of this remedy.
Here, because neither plaintiff nor the municipality pursued any of the available remedies under N.J.S.A. 40:55D-55 within the proscribed two-year time limit, there is no basis, as a matter of law, to impose a penalty against the Hanleys arising out of the illegal conveyance. Moreover, plaintiff has no separate cause of action against the Township. It was not a party to the proceedings before the trial court, and even if it were, such action would have been subject to dismissal pursuant to N.J.S.A. 59:2-4, which immunizes a public entity for any injury caused by its failure to enforce any law. Therefore, Judge Bozonelis properly denied relief to plaintiff pursuant to Rule 1:10-3.
We make one additional observation. It is unclear whether, in light of our earlier decision, the trial court subsequently entered an order enjoining the Hanleys from developing the lot they retained until such time, if ever, that it is "remerged" with the Paquettes' lot. Such an order would provide notice to future potential purchasers of the impediment created by the Hanleys' conveyance without subdivision approval. Thus, to the extent that no such order has been entered, we remand to the trial court for the entry of such an order which should thereafter be properly recorded.
Plaintiff's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed and remanded for the entry and recording of an order enjoining further development of the lot retained by the Hanleys. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION