Opinion
DOCKET NO. A-2781-10T4
06-18-2012
RUSSELL R. REEVES and KATHLEEN C. REEVES, Plaintiffs-Appellants, v. TOWNSHIP OF MARLBORO, THE MAYOR AND TOWNSHIP COUNCIL OF THE TOWNSHIP OF MARLBORO, ROBERT KLEINBERG, in his official capacity as the Mayor of the Township of Marlboro, and ROSA TRAGNI, STEVEN ROSENTHAL, PATRICIA MORELLI, and JEFF CANTOR, in their official capacities as Council Members of the Township of Marlboro, Defendants-Respondents.
F. Patrick Accisano argued the cause for appellants (The Accisano Law Offices, attorneys; Mr. Accisano, of counsel and on the brief). Edward J. Boccher argued the cause for respondents (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Mr. Boccher, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, Espinosa and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-1908-07.
F. Patrick Accisano argued the cause for appellants (The Accisano Law Offices, attorneys; Mr. Accisano, of counsel and on the brief).
Edward J. Boccher argued the cause for respondents (DeCotiis, FitzPatrick & Cole, LLP, attorneys; Mr. Boccher, on the brief). PER CURIAM
Plaintiffs Russell R. Reeves and Kathleen C. Reeves, owners of property in the Township of Marlboro (the Township or Marlboro), filed an action in lieu of prerogative writs, challenging the Township's zoning ordinance based upon its impact upon a section of the Township where they own property. They appeal from an order that granted summary judgment to defendant, the Township, dismissing their action on the ground that they failed to exhaust administrative remedies, and denied their motion for summary judgment. We affirm.
The order appealed from granted summary judgment to the Township and is silent as to the other defendants.
Plaintiffs own approximately eleven acres of land, divided into two parcels, Block 132, Lots 50.01 and 50.02 (the Property), located in a neighborhood of Marlboro known as the Beacon Hill District (Beacon Hill). A portion of the Property is encumbered by wetlands and stream buffers. As of December 2010, the Property was vacant and plaintiffs represent that they have no plans for its development.
In February 2005, the Marlboro Planning Board adopted its Comprehensive Master Plan (Master Plan), pursuant to N.J.S.A. 40:55D-89 of the New Jersey Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. Among the objectives identified in the Master Plan were:
2. To guide future residential and non-residential growth in a coordinated and managed approach as set forth in [the] Master Plan and to provide for logical transitional uses between residential and non-residential areas of the Township.
. . . .
4. Consider potential future residential growth in relationship to the municipal infrastructure.
. . . .
10. Retain and augment the low-density policy in the east, north and west central portions of the Township consistent with the State Development and Redevelopment Plan Planning Area 5 designation.
. . . .
11. Establish a Conservation Plan that will protect environmentally sensitive areas of the Township including wetlands, floodplains, and steep slopes.
. . . .
19. Decrease the permitted residential density in currently undeveloped areas of the Township.
The planning board recommended that defendant rezone certain township lots as Land Conservation Zone Districts (LC Districts), which were "characterized by environmentally sensitive areas, such as those areas with extensive freshwater wetlands, steep slopes or Category-1 waters." LC Districts allow for a single-family home on a minimum of five-acre lots. For lots greater than ten acres, LC Districts permit a "cluster option of 55,000 square foot lots with a minimum open space set-aside of 40%[.]"
The Township adopted an ordinance to implement these recommendations, which plaintiffs successfully challenged on procedural grounds. Thereafter, in July 2006, defendant adopted Ordinance 2006-15 (the Ordinance), which rezoned all of the approximately 190 lots within the 564 acres of Beacon Hill from their original zoning as Residential-80 (R-80) to LC Districts. The R-80 zoning allowed for single-family homes on a minimum of approximately two-acre plots. The Ordinance extended a five-acre lot requirement to Beacon Hill. Less than ten percent of the lots in Beacon Hill are five acres or larger. However, a "Grandfathering Clause" provided that the Ordinance would not apply to any rezoned property
that maintains a single-family residential structure, as of the effective date of said Ordinance, that is in full compliance with the requirements of the R-80 Residential District and any other applicable State and Township laws and requirements, provided that said property would not be further subdivided.It would appear that the Grandfathering Clause cannot apply to the Property since it was vacant at the time the Ordinance became effective.
On September 6, 2006, plaintiffs filed a second action in lieu of prerogative writs against defendant, arguing that the Ordinance is "arbitrary, capricious and unreasonable and not rationally related to a legitimate zoning purpose." The heart of their challenge is that the Grandfathering Clause protects ninety percent of the properties in Beacon Hill, allowing those properties to remain within an R-80 zone, while plaintiffs' land cannot. Plaintiffs did not seek any development approvals, rezoning or variance relief for the Property from the Township's Zoning Board of Adjustment or Planning Board prior to initiating suit.
According to plaintiffs, other landowners joined as plaintiffs in the suit but entered into a settlement in 2009 with defendant that restored R-80 zoning requirements to their property subject to certain restrictions.
Plaintiffs filed a motion for summary judgment in September 2010, seeking the invalidation of the Ordinance. In turn, defendant filed a cross-motion for summary judgment, asserting, in pertinent part, that plaintiffs' claim was barred for failure to exhaust administrative remedies. Both sides submitted conflicting expert planning reports regarding the validity of the Ordinance.
The trial court denied plaintiffs' motion, finding there were disputed factual issues. The court granted summary judgment to defendant and dismissed the complaint, holding that plaintiffs failed to exhaust their administrative remedies by not seeking a variance prior to instituting suit. This appeal followed.
Plaintiffs ask this court to reverse the trial court's rulings on both their motion for summary judgment and the cross-motion for summary judgment and to exercise its original jurisdiction to rule on the merits of their summary judgment motion. After reviewing plaintiffs' arguments in light of the applicable legal principles, we are satisfied that they lack merit.
I
In our review of summary judgment decisions, we apply the same standard as the trial court, Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009), which grants summary judgment "if the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995); R. 4:46-2(c). First, we determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31, (App. Div.), certif. denied, 189 N.J. 104 (2006). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).
II
We turn first to plaintiffs' argument that the trial court erred in denying their motion for summary judgment. Plaintiffs argue that there is no genuine issue of fact that a meaningful relation exists between the stated purposes of the Ordinance establishing a five-acre requirement and Beacon Hill. We disagree.
The Ordinance enjoys "a strong presumption of validity." See Bailes v. Twp. of E. Brunswick, 380 N.J. Super. 336, 348 (App. Div.), certif. denied, 185 N.J. 596 (2005). To overcome this presumption, a challenger must demonstrate that the ordinance "'is clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the [zoning] statute.'" Ibid. (quoting Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002)) (internal quotation marks omitted). Ultimately, a court must consider the reasonableness of an ordinance, specifically "the relationship between the means and ends of the ordinance[.]" Pheasant Bridge, supra, 169 N.J. at 290.
[T]he means selected must have real and substantial relation to the object sought to be attained, and the regulation or proscription must be reasonably calculated to meet the evil and not exceed the public need or substantially affect uses which do not partake of the offensive character of those which cause the problem sought to be ameliorated.
[Ibid. (quoting Kirsch Holding Co. v. Borough of Manasquan, 59 N.J. 241, 251 (1971)).]
In denying summary judgment to plaintiffs, the trial court found there were genuine issues of fact. The court noted a conflict in the expert reports and that the plaintiffs' expert "clearly contradicts" the defense expert "on several key facts." The court stated the disputed issues of fact included "whether the Property is suitable for high-density development, the impact of Category 1 waters on the Beacon Hill area and the Property, as well as the effect of the grandfather provision and the rezoning of the Beacon Hill District and the Property." The court also rejected plaintiffs' argument that the case presented only a question of law, i.e., whether the ordinance is meaningfully related to its purpose. The court found the question to be an issue of fact, the resolution of which required an evaluation of the credibility of the two experts. As a result, the court concluded the matter was not appropriate for disposition by summary judgment. See Conrad v. Michelle & John, Inc., 394 N.J. Super. 1, 13 (App. Div. 2007). We agree.
Plaintiffs also argue that summary judgment should have been granted to them because the Grandfathering Clause violates the MLUL's requirement that zoning be "uniform throughout each district for each class or kind of buildings or other structure or uses of land[.]" N.J.S.A. 40:55D-62. The uniformity requirement serves to give "notice of non-discrimination to property owners" and "the constitutional guarantees of due process and equal protection that guard against the arbitrary and unreasonable exercise of the police power." Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 357 (2003).
However, the MLUL does not require absolute uniformity. The general rule is that the MLUL's uniformity clause "'does not prohibit classifications within a district so long as they are reasonable." Id. at 358 (quoting Quinton v. Edison Park Dev. Corp., 59 N.J. 571, 580 (1971)). "[R]ational regulations based on different conditions within a zone are permissible so long as similarly situated property is treated the same." Id. at 359. Therefore, plaintiffs' reliance upon the uniformity clause of the MLUL does not reduce their challenge to a question of law, but rather, sets the stage for another fact-sensitive issue, whether the classifications created are reasonable. In light of the factual dispute arising from the conflicting expert reports, summary judgment was not appropriate.
III
Plaintiffs also argue that the trial court erred in granting summary judgment to defendant on the ground that they failed to exhaust their administrative remedies. Their action in lieu of prerogative writs was governed by Rule 4:69-5, which provides:
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.The requirement that administrative remedies be exhausted "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. New Milford, 68 N.J. 576, 588 (1975). Typically, this means that a property owner must seek a variance before initiating suit to challenge an ordinance. William M. Cox & Stuart R. Koenig, New Jersey Zoning and Land Use Administration, § 35-5 at 872 (Gann 2012).
The requirement is "neither jurisdictional nor absolute[,]" however. 21st Century Amusements, Inc. v. D'Alessandro, 257 N.J. Super. 320, 321 (App. Div. 1992) (citing Matawan Borough v. Monmouth Cnty. Bd. of Taxation, 51 N.J. 291, 296 (1968)). Whether a plaintiff must exhaust administrative remedies by seeking a variance often turns on whether the plaintiff is challenging a zoning ordinance "as applied" to particular property or otherwise seeking to invalidate the ordinance in its entirety. See Deal Gardens, Inc. v. Board of Trustees, 4 8 N.J. 492, 496-98 (1967); Cox and Koenig, supra, § 35-5 at 875-76. A challenge to the validity of the ordinance in its entirety commonly presents a question of law that does not require administrative expertise or review before it is adjudicated. However, when it is only claimed that an ordinance is "arbitrary and unreasonable in its application to the owner's land, and relief in that circumstance may be obtained from a local board of adjustment, the trial court should ordinarily decline to adjudicate an attack upon the ordinance until after the owner has exhausted his remedy to seek relief from the local board of adjustment[.]" Conlon v. Bd. of Pub. Works, Paterson, 11 N.J. 363, 370 (1953); see also Brunetti, supra, 68 N.J. at 588 (noting "strong presumption favoring the requirement of exhaustion of remedies"). 21st Century Amusements, supra, 257 N.J. Super. at 322; Cox and Koenig, supra, § 35-5 at 872;
The variance process exists for the very purpose of determining whether the ordinance, adopted for legitimate purposes, creates a hardship when applied to a particular property. This is central to the entire structure of the MLUL; that local boards, with their unique perspective on local conditions, are in the best position to understand how most reasonably to alleviate the hardships that arise . . . in particular cases. . . . Interposing a court's judgment before allowing this process to go forward amounts to an arrogation of power that the legislature has delegated, through the MLUL, to local governing units.Accordingly, it is generally inappropriate for a court to address an action in lieu of prerogative writs until an administrative body has "determined whether [a] plaintiff may use [his/her] property in accordance with any reasonable proposal not authorized by the applicable zoning restrictions." Route 15 Assocs. v. Jefferson, 187 N.J. Super. 481, 488-89 (App. Div. 1982) (emphasis added).
[Cox and Koenig, supra, § 35-5 at 875 (emphasis added).]
The challenge here presents the unusual situation where there is neither an identified "hardship" to plaintiffs' property nor a "reasonable proposal" identified for the use of plaintiffs' property that is not authorized by the Ordinance. The trial court implicitly rejected plaintiffs' contention that their challenge was to the validity of the Ordinance in its entirety - or at least as applied to the Beacon Hill district as a whole, and found it to be a challenge to the ordinance "as applied" to their property. Although plaintiffs dispute this description, they acknowledge that they are "the only party making the argument, challeng[ing] Ordinance 2006-15 as applied to the whole Beacon Hill zoning district[.]" They also note that other affected landowners have successfully obtained relief, an option they did not choose to pursue.
Plaintiffs further state that one of the reasons they challenge the ordinance is that, if they choose to develop the land at some indefinite time in the future, they might have the freedom to do so in conformity with "reasonable zoning restrictions that make sense in the Beacon Hill area." They make no secret of the fact that they regard such reasonable zoning restrictions to be R-80 zoning, which would apply to the Property by default if the Ordinance is invalidated. Therefore, although plaintiffs purport to challenge the Ordinance as applied to all of Beacon Hill, the reality is that the relief sought will likely only affect the use of plaintiffs' property. We are satisfied that the court properly concluded the challenge here was to the Ordinance "as applied" to the Property, subjecting plaintiffs to the exhaustion of remedies requirement of Rule 4:69-5.
A
Notwithstanding these principles and circumstances, plaintiffs argue that the trial court should have reached the merits of their action. Plaintiffs contend that courts have a constitutional obligation to "meaningfully address" questions of law raised in actions in lieu of prerogative writs, and that the trial court should have been concerned with the "fundamental question . . . whether the requirements of the ordinance are reasonable under the circumstances[,]" Pheasant Bridge, supra, 169 N.J. at 290 (internal quotation marks and citation omitted), rather than the "procedural nicety" of whether they had complied with the requirements of Rule 4:69-5.
Plaintiffs' contention that an exhaustion of remedies requirement is trumped by a constitutional imperative for judicial review of actions in lieu of prerogative writs is belied by N.J. Const., art. VI, § V, ¶ 4, which provides:
Prerogative writs are superseded, and, in lieu thereof, review, hearing and reliefHere, the terms and manner of review afforded plaintiffs are set forth in Rule 4:69-5 which, as noted, requires the exhaustion of remedies "[e]xcept where it is manifest that the interest of justice requires otherwise[.]"
shall be afforded in the Superior Court, on terms and in the manner provided by rules of the Supreme Court, as of right, except in criminal causes where such review shall be discretionary.
[In re Application of LiVolsi, 85 N.J. 576, 593 (1981) (emphasis added).]
B
Plaintiffs argue that it would be "a horrific miscarriage of justice" to permit Marlboro to raise the issue of exhaustion of remedies, which they term a "procedural nicety," five years into the litigation. While the five-year delay is legitimately subject to criticism, plaintiffs' argument that the issue should be barred by the doctrine of laches is unavailing. "[T]he defense of 'laches involves more than mere delay, mere lapse of time. There must be delay for a length of time which, unexplained and unexcused, is unreasonable under the circumstances and has been prejudicial to the other party.'" Mancini v. Twp. of Teaneck, 179 N.J. 425, 437 (2004) (quoting Northwest Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 140 (2001) (emphasis added). Plaintiffs have not identified any resulting prejudice to them. Therefore, the argument that Marlboro's delay satisfies the "interest of justice" exception to the exhaustion of remedies requirement fails.
C
The "interest of justice" clause within R. 4:69-5 excuses exhaustion where: (1) "administrative review will be futile[;]" (2) "there is a need for prompt decision in the public interest[;]" (3) "the issues do not involve administrative expertise or discretion and only a question of law is involved[;]" and (4) "irreparable harm will otherwise result from denial of immediate judicial relief." Brunetti, supra, 68 N.J. at 589. Plaintiffs contend that they should be relieved of the requirement to exhaust remedies because the issues presented only a question of law and because administrative review would be futile. We are satisfied that neither of these exceptions apply.
Plaintiffs identify the "purely legal issue" presented as "whether 90% nonconformities in Beacon Hill rendered the ordinance invalid in that district." Quoting AMG Assocs. v. Springfield, 65 N.J. 101, 109 n.3 (1974), plaintiffs state that when a challenge affects a large tract or substantial area comprising several tracts and, if successful, would require rezoning by the municipality, "the situation is beyond the intended scope of the variance procedure . . . and the owner or owners may proceed directly to the Law Division[.]"
Plaintiffs' reliance upon this dicta is misplaced. This statement was not intended to expand an exception to the exhaustion of remedies requirement. Rather, the references to the intended scope of the variance procedure and a consequential need for rezoning invokes the allocation of function and authority between the municipal governing body - which has the "ultimate responsibility to establish . . . the essential land use character of the municipality[,]" and its administrative zoning agencies. Dover v. Bd. of Adjustment, 158 N.J. Super. 401, 411 (App. Div. 1978). Judge Pressler described the import of the statement relied upon by plaintiffs as follows:
Confining the board's authority to a specific piece of property clearly implies the concept that such a geographical limitation will serve to avoid the potential which the board's action might otherwise have for substantially affecting the essential land use scheme of the entire district itself and perhaps of the entire municipality as well.
[Id. at 412.]
See also Twp. of N. Brunswick v. Zoning Bd. of Adjustment of Twp. of N. Brunswick, 378 N.J. Super. 485, 492 (App. Div.) ("[W]hen the variance pertains to a substantial portion of or an entire zone district, a board's variance begins to closely resemble zoning, which is the exclusive province of the municipality."), certif. denied, 185 N.J. 266 (2005). The language in AMG is therefore properly viewed as circumscribing the scope of the variance procedure so that it does not encroach upon the authority of the municipality to make zoning decisions. See Chesterbrooke Ltd. P'ship v. Planning Bd. of Twp. of Chester, 237 N.J. Super. 118, 128-129 (App. Div. 1989). As plaintiffs have not elected to pursue a variance, the dicta quoted is inapposite.
Plaintiffs also argue that it would be "futile" for them to seek a variance because they cannot apply for variances for the other lots in Beacon Hill and it would be "ridiculous" for them to have to prepare development plans for the Property in order to challenge zoning for all of Beacon Hill.
Because the premise for the exhaustion of remedies is "that such remedy is 'certainly available, clearly effective and completely adequate to right the wrong complained of[,]'" exhaustion of remedies will not be required where administrative review will be futile. Brunetti, supra, 68 N.J. at 589 n.12 (internal citation omitted). However, where as here, the challenger has made no effort to seek administrative action prior to filing suit, this exception is not generally available.
Whatever the parameters of the so-called doctrine of futility as an exception to theSee also Palazzolo v. Rhode Island, 533 U.S. 606, 620, 121 S. Ct. 2448, 2459, 150 L. Ed. 2d 592, 609 (2001); OFP, L.L.C. v. State, 395 N.J. Super. 571, 582-583 (App. Div. 2007), aff'd o.b., 197 N.J. 418 (2008).
doctrine of exhaustion of administrative remedies, that exception does not come into play before an applicant for administrative permission even files the request, at least not where the agency has some discretion to grant that request. If an agency cannot provide relief or conclusively resolve the issues, then perhaps resort to the courts becomes appropriate before exhaustion of the administrative process. . . . [A] landowner must give the land-use authority an opportunity to exercise its discretion. That discretion can only be properly exercised when the proposed land use is adequately defined and the permissible uses are evaluated.
[United Sav. Bank v. State, 360 N.J. Super. 520, 526 (App. Div.) (internal citations omitted), certif. denied, 177 N.J. 574 (2003).]
Although the Court in Pheasant Bridge, supra, 169 N.J. at 294, found "no justification for requiring plaintiff to seek variance relief" before it invalidated a zoning ordinance as applied to the plaintiff's property, that case is clearly distinguishable. The plaintiff in Pheasant Bridge purchased 28.98 acres in Warren Township at a time when the zoning ordinance permitted single-family homes on a minimum lot size of one-and-one-half acres, yielding eight to fifteen subdivided lots. Id. at 286. The plaintiff sought to develop the property for residential subdivision starting in 1987. Ibid. There was litigation involving sewerage capacity. Ibid. In 1993, after the plaintiff sought subdivision approval but before its application was perfected, the Township adopted an ordinance that increased the minimum lot size to six acres. Id. at 287. As a result, the plaintiff could develop no more than four lots on its property, rendering the project economically unfeasible. Ibid.
It is unclear that the issue of exhaustion of remedies was asserted as a defense in that action. The Court discussed this issue after noting that the Township's counsel had stated at oral argument that the Township had encouraged plaintiff to apply for a variance. Ibid.
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The ensuing litigation lasted for approximately eight years before the Supreme Court issued its opinion in 2001. During the course of that litigation, after a remand from this court, the trial court held that the zoning ordinance was arbitrary as applied to the plaintiff's property "because the environmental concerns generating the creation of the [] zone factually were inapplicable to plaintiff's property." Id. at 288. Although we reversed the trial court's decision on a second remand, we did not disagree with the trial court's determination that the environmental concerns did not apply to the plaintiff's property. See id. at 289. The Supreme Court agreed with the trial court that the application of the new zone requirements to plaintiff's property, which was known to be different from the rest of the property in the zone, was arbitrary, stating,
The parcel had been prepared for development with sewer capacity, was in the process of securing its approvals, and was virtually indistinguishable from the contiguous lot to its immediate south that had been allowed to remain at the one-and-one-half acre limit on subdivision size for residential development. We accept the trial court's findings and conclusions. . . . The zoning ordinance is invalid as applied to plaintiff's property.
[Id. at 295.]
Thus, there are substantial distinctions between plaintiffs' challenge here and that in Pheasant Bridge. In Pheasant Bridge, the plaintiff unequivocally challenged the ordinance as applied to its property; had spent years in developing the property pursuant to the zoning ordinance in effect at the time the property was purchased; had a subdivision application pending when the new zoning requirements were adopted; and there was substantial evidence to show that the environmental concerns that fostered the zoning change did not apply to plaintiff's property. In distinguishing Pheasant Bridge, the trial court observed that the Property here does not border upon property with identical physical attributes that is zoned for high density development; it is encumbered with environmental issues the Township sought to address by adopting the Ordinance; and the Property is "fully conforming in the LC zoning district[.]" We are therefore satisfied that Pheasant Bridge is distinguishable and does not provide support for plaintiffs' argument that they were not required to seek variance relief.
Finally, plaintiffs' argument that we should exercise original jurisdiction and invalidate the Ordinance lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION