Opinion
DOCKET NO. A-3014-11T3
05-16-2013
JESSE ROSENBLUM, Plaintiff-Appellant, v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER and WOO KUM KANG, Defendants-Respondents.
Jesse Rosenblum, appellant, argued the cause pro se. Michael B. Kates argued the cause for respondent Zoning Board of Adjustment of the Borough of Closter (Kates, Nussman, Rapone, Ellis and Farhi, LLP, attorneys; Mr. Kates, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Kennedy.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4527-11.
Jesse Rosenblum, appellant, argued the cause pro se.
Michael B. Kates argued the cause for respondent Zoning Board of Adjustment of the Borough of Closter (Kates, Nussman, Rapone, Ellis and Farhi, LLP, attorneys; Mr. Kates, on the brief). PER CURIAM
Plaintiff Jesse Rosenblum appeals from a judgment dismissing his action in lieu of prerogative writs against defendants. In his complaint, plaintiff contended that defendant, the Closter Zoning Board of Adjustment (Board), improperly granted an application by defendant Woo Kum Kang (Kang) for a "c" variance pursuant to N.J.S.A. 40:55D-70(c) to expand a nonconforming building on her property, and violated his due process rights. Plaintiff's complaint, among other things, challenged the Board's treatment of Kang's building as a lawful, pre-existing, though nonconforming, structure. On January 17, 2012, Judge Alexander H. Carver III issued judgment dismissing plaintiff's complaint with prejudice.
We affirm Judge Carver's determination that the issue of whether Kang's residential building was a lawful pre-existing structure had been conclusively determined by Judge Jonathan N. Harris on March 13, 2006, when he ruled in an earlier action by plaintiff that Kang needed only a "c" variance to expand the structure. See Rosenblum v. Zoning Bd. of Adj. Borough of Closter, No. L-7807-05 (Law Div. Mar. 13, 2006). Accordingly, plaintiff is collaterally estopped from raising any argument on appeal that the structure should not have been treated as a lawful pre-existing, nonconforming structure. Further, we determine that Judge Carver did not err in finding the Board's decision was not arbitrary, capricious or unreasonable.
Judge Harris was later appointed to the Appellate Division in 2009.
I.
In 2006, plaintiff filed a complaint against the Board and Kang concerning the same property at issue here. In that action, plaintiff challenged the Board's determination that Kang's proposed expansion of one of the buildings on his property required no variances. At trial, "the parties . . . agreed to the operative facts and recognized that the disputed issues are solely questions of law." Id. at 6. Judge Harris issued a comprehensive written opinion on March 13, 2006, in which he made detailed findings of fact, which we set forth here at some length:
[Kang] owns land located at 85 Chestnut Street in Closter. It is located in the municipality's District No. 2, Residence Area B that permits one and two-family residential uses in detached homes. See Borough of Closter, N.J., Zoning Ordinance § 200-9. The zoning ordinance further provides that:
In all districts, the number of principal buildings per lot shall be limited to one.Contrary to this limitation on the number of principal buildings per lot, Kang's property, consisting of a single merged lot for zoning purposes, contains two detached buildings devoted to residential uses. Both buildings comply with all dimensional and setback requirements of the Closter zoning ordinance, the only discordance being a violation of Borough of Closter, N.J.,
Borough of Closter, N.J., Zoning Ordinance § 200-69(E).
Zoning Ordinance § 200-10, which requires that single-family residences contain no less than 900 square feet of floor area for one floor, and 1,200 square feet where living spaces are divided on two floors.
Kang applied for a zoning permit to allow the construction of a second floor and deck on the smaller of the residential buildings on her lot. Although the record is not entirely clear, the present floor area of the structure -- located in the northeast portion of the lot -- appears to be approximately 599 square feet, and the addition (not including the deck) would merely double the floor area to 1,198 square feet. Without explaining where the extra two square feet would come from, the attorney for Kang stated to the Board of Adjustment that if given permission to build, his client would ultimately construct a two-floor dwelling that complied with the minimum space requirements of the Closter zoning ordinance.
The Closter Zoning Officer, Leonard Sinowitz, determined that Kang was not entitled to a zoning permit because a variance was required to expand a nonconforming use or nonconforming structure. Kang appealed to the Board of Adjustment, contending that the Zoning Officer was wrong because no variances were necessary. The record suggests that Kang also sought variances to preserve all of her options. At the hearing conducted by the Board of Adjustment, however, the variance applications were not pursued and they are deemed abandoned without prejudice.
The Board of Adjustment reviewed the appeal pursuant to N.J.S.A. 40:55D-70(a) and—70(b). It determined that the buildings on the lot used for residential purposes constitute two principal structures, in violation of Borough of Closter, N.J., Zoning Ordinance § 200-69(E). However, it
apparently considered the long-standing use of the buildings for independent residential purposes as protected nonconforming uses or structures under N.J.S.A. 40:55D-68:
Any nonconforming use or structure existing at the time of the passage of an ordinance may be continued upon the lot or in the structure so occupied and any such structure may be restored or repaired in the event of partial destruction thereof.The Board of Adjustment further determined that the Zoning Officer was mistaken in concluding that the addition proposed by Kang would constitute an expansion of either a nonconforming use or structure. It held that because "the basis for the nonconformity is neither the use nor the structure" the proposed addition cannot be perceived as an expansion of either.
[Plaintiff], a participant at the hearing conducted by the Board of Adjustment, timely filed this action in lieu of prerogative writs. The trial was
conducted on March 10, 2006. Rosenblum claims that the action of the Board of Adjustment constituted arbitrary,
capricious, and unreasonable behavior because it erred as a matter of law when it determined that variances were unnecessary. Rosenblum contends that Kang's proposed addition to one of the residential buildings constitutes at least the expansion of a nonconforming structure requiring a variance under N.J.S.A. 40:55D-70(c). Additionally, he argues that the addition constitutes the expansion of a nonconforming use, necessitating an enhanced-vote variance under N.J.S.A. 40:55D-70(d)(2). The Board of Adjustment and Kang contend that the land use agency's actions were entirely appropriate and correct.
[Rosenblum v. Zoning Bd. of Adj. Borough of Closter, supra, slip op. at 2-5.]
Judge Harris held that "a variance is necessary to expand the size of a nonconforming structure where the addition does not add to the pre-existing nonconformity." Id. at 1-2. In finding that such a variance was indeed necessary, Judge Harris reversed the Board's decision that a "c" variance was unnecessary and affirmed its decision that a "d" variance was unnecessary. Id. at 13. Further, "[b]ecause Kang's application did not ultimately proceed in a variance modality, she is still entitled to purse variance relief from the Board . . . . However, such variance application must be filed anew and subject to all provisions -- notice and otherwise -- of the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129." Ibid.
Thereafter, on March 9, 2010, Kang returned to the Board with an application for bulk variance relief for the second floor addition. Kang's application proposed to bring the structure in compliance with the minimum floor area required by the Borough of Closter, N.J., Zoning Ordinance § 200-10. Board hearings on the application were held on January 19 and February 16, 2011, and the Board approved a resolution granting Kang's application for a "c" variance on April 20, 2011.
Judge Harris's decision was included in the record.
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On May 16, 2011, plaintiff filed a complaint in lieu of prerogative writs, claiming that the Board acted arbitrarily, capriciously and unreasonably in granting Kang's application, and that the Board erred in denying plaintiff's request to submit certain documents disputing the date the structures were erected on the property. Plaintiff claimed that one of the structures on the property "was built prior to December 1940, the advent of local zoning[,]" but that the residential structure at issue was built after 1948.
At the hearing before Judge Carver on January 6, 2012, defendants argued that Judge Harris had previously noted that the parties stipulated to the operative facts, including the fact that the building was in place before adoption of the zoning code by the municipality. Rosenblum v. Zoning Bd. of Adj. Borough of Closter, supra, slip op. at 6. Judge Carver held that plaintiff was collaterally estopped from raising a factual dispute on an issue he had stipulated as true in a prior action, and that "Judge Harris decided that the application in this matter concerned a lawful, pre-existing, non-conforming structure. I'm satisfied that that's already been determined." Further, Judge Carver found that plaintiff
pointed to nothing in the record which would indicate the Board acted in an arbitrary, capricious, or unreasonable way in granting -- the approval.
And in looking at the Board's . . . thorough resolution . . . it's, as I would expect, exhaustive. And the Board plainly did . . . an exemplary job in consideration of this application.
It had an overwhelming amount of expert testimony supporting the application. . . . it's pretty unique . . . the application was to bring a non-conforming structure into conformity. So, in terms of the intent and purpose of the . . . Zoning Ordinance, and . . . land use principles in general, the Board . . . was acting in an exemplary way. So, I find . . . there's really no merit to the complaint in this matter, and I'm dismissing it.
This appeal followed.
II.
On appeal, plaintiff asserts the following arguments:
I. THE BOARD WAS ARBITRARY IN CONSIDERING THE SMALL DWELLING TO BE A PRE-EXISTING STRUCTURE.We find these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2)(E), and affirm essentially for the reasons set forth by Judge Carver in his oral opinion of January 6, 2012. We add only the following comments.
II. THE BOARD WAS ARBITRARY IN NOT DEMANDING THE DOCUMENTS OF THE SMALL STRUCTURE'S ORIGIN ALLEGED TO BE IN THE APPLICANT'S POSSESSION.
III. THE BOARD WAS ARBITRARY IN NOT ALLOWING PLAINTIFF TO SET THE RECORD STRAIGHT THROUGH COPIES OF DOCUMENTS FROM THEIR ARCHIVES.
A. Board Denied Plaintiff Due Process.IV. THE BOARD WAS ARBITRARY IN NOT REVIEWING ITS FILES FOR PRIOR APPLICATIONS ON THE SUBJECT PROPERTY.
V. THE BOARD WAS ARBITRARY FOR GRANTING A 'C' VARIANCE FOR HARDSHIP.
VI. ASSUMING, ARGUENDO, THAT PLAINTIFF'S EVIDENCE HAD BEEN ACCEPTED INTO THE RECORD, IT IS LIKELY THAT A DIFFERENT OUTCOME WOULD HAVE RESULTED.
VII. THE TRIAL JUDGE WAS ARBITRARY IN ASSERTING COLLATERAL ESTOPPEL AGAINST PLAINTIFF.
We agree that plaintiff is estopped from alleging that Kang's residential building is not a lawful pre-existing, nonconforming structure. That was conclusively determined in the previous action and never appealed. Also, his challenges to the Board's actions run contrary to facts to which plaintiff previously stipulated. Collateral estoppel, or issue preclusion, "bars relitigation of any issue which was actually determined in a prior action, generally between the same parties, involving a different claim or cause of action." Tarus v. Borough of Pine Hill, 189 N.J. 497, 520 (2007) (quotations omitted). For collateral estoppel to apply,
the party asserting the bar must show that: (1) the issue to be precluded is identical to the issue decided in the prior proceeding[;] (2) the issue was actually litigated in the prior proceeding[;] (3) the
court in the prior proceeding issued a final judgment on the merits[;] (4) the determination of the issue was essential to the prior judgment[;] and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
[In re Estate of Dawson, 136 N.J. 1, 20 (1994) (citations omitted).]
These elements are clearly present here, and therefore Judge Carver properly invoked the doctrine to prevent plaintiff from utilizing Kang's most recent application before the Board as a vehicle to raise issues already decided. The status of the structure was stipulated to by the parties, actually litigated and decided in the 2006 lawsuit. See Winters v. North Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85 (2012) ("[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." (quoting Restatement (Second) of Judgments § 27 (1982))). If plaintiff disagreed with Judge Harris's determination of the status of the structure, he could have pursued his appellate remedies, but chose not to do so. He is thus collaterally estopped from arguing the issue.
Further, we find nothing in the record to suggest that the Board acted arbitrarily, capriciously or unreasonably in considering and ruling upon the Kang's application. We use the same standard as the trial court in reviewing a zoning board's decision. Cohen v. Bd. of Adjustment of the Borough of Rumson, 396 N.J. Super. 608, 614-15 (App. Div. 2007) (citing New York SMSA, Ltd. P'ship v. Bd. of Adjustment, Twp. of Weehawken, 37 0 N.J. Super. 319, 331 (App. Div. 2004)). Like the trial court, our review of a zoning board's decision is limited. Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998). We give deference to a zoning board's decision and reverse only if its action was arbitrary, capricious, or unreasonable. Zilinsky v. Zoning Bd. of Adjustment of Verona, 105 N.J. 363, 367 (1987); Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965). Here, the application sought to cure an existing zoning deficiency, and the findings and conclusions of the Board were well supported by the evidence adduced at the hearing.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION