NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1989-17T2
BOROUGH OF HIGHLAND PARK,
Plaintiff-Respondent,
v.
MITCHELL S. CAPPELL,
Defendant-Appellant. ________________________
Argued November 15, 2018 – Decided June 28, 2019
Before Judges Simonelli, O'Connor and DeAlmeida.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C- 000195-16.
Elliot D. Ostrove argued the cause for appellant (Epstein Ostrove, LLC, attorneys; Elliot D. Ostrove, on the briefs).
Michael A. Cifelli argued the cause for respondent (Florio Kenny Raval, LLP, attorneys; Michael A. Cifelli, of counsel and on the brief). PER CURIAM
Defendant Mitchell S. Cappell appeals from a November 20, 2017 order
that, among other things, denied his and granted plaintiff Borough of Highland
Park's (Borough) motion for summary judgment. After examining the record
and applicable legal principles, we reverse and remand for further proceedings.
I
A
We first address the trial court's decision to grant the Borough summary
judgment. The salient facts, derived from the motion record and viewed in the
light most favorable to defendant, see Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 523 (1995), are as follows.
In 2013, defendant owned a house in the Borough. Defendant wanted to
renovate the house and, in June 2013, obtained a construction permit from the
Borough's Construction Office. The permit indicates the work to be performed
was the renovation of the second floor and to "add a level." The permit also
states, "Drawings to follow." It is not disputed the term "drawings" refers to
construction plans.
On November 22, 2015, almost two-and-one-half years after defendant
commenced construction and renovation on the house, Scott Brescher, the
A-1989-17T2 2 construction officer for the Borough, issued a "stop construction" order to
defendant. A copy of this order was not included in the record, and the record
does not otherwise reveal why this order was issued.
Because the roof was not complete, defendant sought permission from the
Borough to cover the house, in order to prevent rain and snow from entering the
structure. On December 15, 2015, the Borough's attorney contacted defendant's
attorney and advised that "work may continue to close the building." Defendant
resumed work to cover the top of the house in order to protect it from the
elements.
On January 11, 2016, the Borough issued to defendant a notice and order
of penalty, which imposed a fine of $2500 because defendant continued to work
on the house after the issuance of the stop construction order the previous
November. Defendant's attorney contacted the Borough's attorney and
explained defendant did the additional work for the purpose of closing the roof
or covering the house.
On January 22, 2016, the Borough's attorney sent a letter to defendant's
attorney stating, "Highland Park agrees that your client can certainly secure the
property by installing immediately sheathing (the base plywood) on the existing
new frame of the roof." The next day there was a snowstorm and, because the
A-1989-17T2 3 roof was not complete and the covering over the house was inadequate, snow
and ice entered the house.
After the storm, defendant continued to work on the house, but solely for
the purpose of protecting it from the weather. On February 18, 2016, the
Borough issued another notice and order of penalty to defendant, imposing a
fine of $2000 because defendant failed to comply with the January 11, 2016
notice. When defendant's agent asked Brescher why the order was issued when
the Borough's attorney had given defendant permission to "close up the house,"
Brescher stated the permission given to defendant pertained only to the days
preceding the snowstorm in January.
Defendant appealed the stop construction order and the two penalties the
Borough imposed on him to the Middlesex County Construction Board of
Appeals (Board). A copy of the Board's decision was not provided in the record,
but it is undisputed that, because there was a question whether defendant had
been properly served with the stop construction order, as well as the two notices
and orders of penalty, the Board vacated all of the orders and penalties.
On August 17, 2016, the Borough issued a new stop construction order
(August 2016 order). The order stated it was entered because defendant did not
have at the construction site or submit to the construction office stamped, sealed
A-1989-17T2 4 plans for the construction he intended to perform on his property, in violation of
N.J.A.C. 5:23-2.16(e), and also failed to provide "zoning documentation"
pertaining to the addition to the house. The order does not identify the specific
zoning documentation defendant was required to produce. The August 2016
order also stated the failure to comply with such order may result in the
assessment of a penalty of up to $50 per day per violation.
In November 2016, plaintiff filed a verified complaint alleging, among
other things, that defendant was in violation of the August 2016 order, because
he failed to provide to the Borough plans that were drawn to scale and did not
obtain a resolution from the Highland Park Zoning Board of Adjustment
granting defendant a height variance.
Defendant filed an answer and verified counterclaim. He contended that,
in reliance upon the Borough approving his permit in June 2013, he performed
extensive work upon the house for approximately two-and-one-half years. Then,
in November 2015, plaintiff issued the stop construction order. Thereafter, with
the Borough's permission, defendant worked on the house for the purpose of
protecting it from the weather yet, in January and February 2016, plaintiff
imposed penalties upon defendant.
A-1989-17T2 5 In his counterclaim, defendant alleges the Borough imposed such
penalties for the purpose of harassing him and devaluing his property. He claims
he is entitled to damages on the grounds the Borough's actions violated 42
U.S.C. § 1983, 42 U.S.C. § 1986, the New Jersey Civil Rights Act, N.J.S.A.
10:6-2, and were an abuse of process.
In the fall of 2017, the Borough filed a motion and defendant a cross-
motion for summary judgment. At that time, the discovery end date was April
15, 2018. The principal relief the Borough sought was that the court grant it
summary judgment, and that defendant be ordered to (1) remove all construction
equipment and debris from the subject property; (2) restore the roof to its pre -
construction height; and (3) cease using the property until there had been a
"complete remediation to address the illegal construction." In addition, the
Borough sought the dismissal of defendant's counterclaim, arguing the condition
about which defendant complained in such pleading was created by his violation
of the law.
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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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1989-17T2
BOROUGH OF HIGHLAND PARK,
Plaintiff-Respondent,
v.
MITCHELL S. CAPPELL,
Defendant-Appellant. ________________________
Argued November 15, 2018 – Decided June 28, 2019
Before Judges Simonelli, O'Connor and DeAlmeida.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C- 000195-16.
Elliot D. Ostrove argued the cause for appellant (Epstein Ostrove, LLC, attorneys; Elliot D. Ostrove, on the briefs).
Michael A. Cifelli argued the cause for respondent (Florio Kenny Raval, LLP, attorneys; Michael A. Cifelli, of counsel and on the brief). PER CURIAM
Defendant Mitchell S. Cappell appeals from a November 20, 2017 order
that, among other things, denied his and granted plaintiff Borough of Highland
Park's (Borough) motion for summary judgment. After examining the record
and applicable legal principles, we reverse and remand for further proceedings.
I
A
We first address the trial court's decision to grant the Borough summary
judgment. The salient facts, derived from the motion record and viewed in the
light most favorable to defendant, see Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 523 (1995), are as follows.
In 2013, defendant owned a house in the Borough. Defendant wanted to
renovate the house and, in June 2013, obtained a construction permit from the
Borough's Construction Office. The permit indicates the work to be performed
was the renovation of the second floor and to "add a level." The permit also
states, "Drawings to follow." It is not disputed the term "drawings" refers to
construction plans.
On November 22, 2015, almost two-and-one-half years after defendant
commenced construction and renovation on the house, Scott Brescher, the
A-1989-17T2 2 construction officer for the Borough, issued a "stop construction" order to
defendant. A copy of this order was not included in the record, and the record
does not otherwise reveal why this order was issued.
Because the roof was not complete, defendant sought permission from the
Borough to cover the house, in order to prevent rain and snow from entering the
structure. On December 15, 2015, the Borough's attorney contacted defendant's
attorney and advised that "work may continue to close the building." Defendant
resumed work to cover the top of the house in order to protect it from the
elements.
On January 11, 2016, the Borough issued to defendant a notice and order
of penalty, which imposed a fine of $2500 because defendant continued to work
on the house after the issuance of the stop construction order the previous
November. Defendant's attorney contacted the Borough's attorney and
explained defendant did the additional work for the purpose of closing the roof
or covering the house.
On January 22, 2016, the Borough's attorney sent a letter to defendant's
attorney stating, "Highland Park agrees that your client can certainly secure the
property by installing immediately sheathing (the base plywood) on the existing
new frame of the roof." The next day there was a snowstorm and, because the
A-1989-17T2 3 roof was not complete and the covering over the house was inadequate, snow
and ice entered the house.
After the storm, defendant continued to work on the house, but solely for
the purpose of protecting it from the weather. On February 18, 2016, the
Borough issued another notice and order of penalty to defendant, imposing a
fine of $2000 because defendant failed to comply with the January 11, 2016
notice. When defendant's agent asked Brescher why the order was issued when
the Borough's attorney had given defendant permission to "close up the house,"
Brescher stated the permission given to defendant pertained only to the days
preceding the snowstorm in January.
Defendant appealed the stop construction order and the two penalties the
Borough imposed on him to the Middlesex County Construction Board of
Appeals (Board). A copy of the Board's decision was not provided in the record,
but it is undisputed that, because there was a question whether defendant had
been properly served with the stop construction order, as well as the two notices
and orders of penalty, the Board vacated all of the orders and penalties.
On August 17, 2016, the Borough issued a new stop construction order
(August 2016 order). The order stated it was entered because defendant did not
have at the construction site or submit to the construction office stamped, sealed
A-1989-17T2 4 plans for the construction he intended to perform on his property, in violation of
N.J.A.C. 5:23-2.16(e), and also failed to provide "zoning documentation"
pertaining to the addition to the house. The order does not identify the specific
zoning documentation defendant was required to produce. The August 2016
order also stated the failure to comply with such order may result in the
assessment of a penalty of up to $50 per day per violation.
In November 2016, plaintiff filed a verified complaint alleging, among
other things, that defendant was in violation of the August 2016 order, because
he failed to provide to the Borough plans that were drawn to scale and did not
obtain a resolution from the Highland Park Zoning Board of Adjustment
granting defendant a height variance.
Defendant filed an answer and verified counterclaim. He contended that,
in reliance upon the Borough approving his permit in June 2013, he performed
extensive work upon the house for approximately two-and-one-half years. Then,
in November 2015, plaintiff issued the stop construction order. Thereafter, with
the Borough's permission, defendant worked on the house for the purpose of
protecting it from the weather yet, in January and February 2016, plaintiff
imposed penalties upon defendant.
A-1989-17T2 5 In his counterclaim, defendant alleges the Borough imposed such
penalties for the purpose of harassing him and devaluing his property. He claims
he is entitled to damages on the grounds the Borough's actions violated 42
U.S.C. § 1983, 42 U.S.C. § 1986, the New Jersey Civil Rights Act, N.J.S.A.
10:6-2, and were an abuse of process.
In the fall of 2017, the Borough filed a motion and defendant a cross-
motion for summary judgment. At that time, the discovery end date was April
15, 2018. The principal relief the Borough sought was that the court grant it
summary judgment, and that defendant be ordered to (1) remove all construction
equipment and debris from the subject property; (2) restore the roof to its pre -
construction height; and (3) cease using the property until there had been a
"complete remediation to address the illegal construction." In addition, the
Borough sought the dismissal of defendant's counterclaim, arguing the condition
about which defendant complained in such pleading was created by his violation
of the law.
In its motion, the Borough did not seek that plaintiff pay the $2000 penalty
the Borough sought in the August 2016 order, or argue defendant's plans were
insufficient because they were not stamped or sealed. Instead, the Borough
contended it was entitled to the relief it sought because defendant failed to
A-1989-17T2 6 submit plans drawn to scale, in violation of N.J.A.C. 5:23-2.15(f)(1), making
the permit issued to defendant invalid. 1
In response to the Borough's motion, defendant submitted a certification
claiming that after he submitted his plans to the Borough, Scott Luthman, the
Borough's construction officer in 2013, told him he could "go ahead with
construction." Luthman never complained about the construction defendant
undertook at the house, even though Luthman was "observing" the property
every few weeks. Defendant further certified he saw a copy of a document in
the Construction Office's file indicating the Borough approved the plans he had
submitted.
In reply to defendant's certification, the Borough submitted a certification
executed by Luthman, who claimed defendant never submitted any plans "as
required." Luthman stated that because defendant did not submit any plans as
"required," defendant was only permitted to "begin demolition and that was
explained to him by me." It is not clear from Luthman's certification whether
1 It is not disputed the borough lost its file pertaining to defendant's project on the house, and did not have a copy of the plans defendant submitted to the borough in 2013. However, the record indicates that, in response to discovery requests, defendant produced the plans he purportedly submitted to the borough in 2013. A-1989-17T2 7 defendant failed to submit plans that were drawn to scale, as required by
N.J.A.C. 5:23-2.15(f)(1), or whether defendant did not submit any plans at all.
The trial court granted the Borough's motion for summary judgment. The
court determined defendant failed to submit to the Borough "plans . . . consistent
with the [C]ode that would allow [defendant] to continue construction." The
court essentially found the plans insufficient because they were not drawn to
scale and that such deficiency invalidated defendant's permit, precluding him
from engaging in further construction on the house.
On the basis of those findings, the court entered the November 20, 2017
order granting the Borough's motion for summary judgment and denying
defendant's motion for summary judgment. The order also directed defendant
to fully restore the exterior of the house to its pre-construction condition, and
remove all exterior scaffolding, construction equipment, and construction
debris, within thirty days. Further, defendant was ordered to restore the roof to
its pre-construction height and condition within sixty days. Defendant appeals
from the November 20, 2017 order.
B
On appeal, defendant's contentions pertaining to the trial court granting
the Borough's motion for summary judgment are as follows: (1) the court failed
A-1989-17T2 8 to make adequate findings of fact and conclusions of law; (2) expert testimony
is required to determine whether or not the plans he submitted to the Borough
were drawn to scale; (3) granting summary judgment was premature because the
discovery period had not expired and defendant had not concluded conducting
discovery; and (4) there existed genuine issues of material fact, which warranted
the denial of summary judgment.
In considering defendant's appeal, we must adhere to well-settled
principles applicable to summary judgment motions. The trial court must
"consider whether the competent evidential materials presented, when viewed
in the light most favorable to the non-moving party, are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor of the non-
moving party." Brill, 142 N.J. at 540; see also R. 4:46-2(c). The trial court
cannot resolve contested factual issues but instead must determine whether there
are any genuine factual disputes. Agurto v. Guhr, 381 N.J. Super. 519, 525
(App. Div. 2005). If there are materially disputed facts, the motion for summary
judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003). We
must observe the same standards when we review an order granting summary
judgment, including that we view the record in a light most favorable to the non-
moving party. See W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012).
A-1989-17T2 9 We turn to defendant's first contention, specifically, that the quality of the
court's findings and facts and conclusions of law was insufficient. We agree the
court's explanation of why it found the Borough entitled to summary judgment
was limited. However, a close reading of the court's comments reveals the court
implicitly found defendant's permit invalid because the plans defendant
submitted were not drawn to scale, as required by N.J.A.C. 5:23-2.15(f)(1), and
that such deficiency was tantamount to the Borough having issued an invalid
permit to defendant. Because without a valid permit he did not have the
authority to conduct any construction on the house, the court determined
defendant was obligated to restore the property to the condition it was in before
construction began. In the final analysis, we do not have a quarrel with the
quality of the court's explanation of its finding.
Defendant next contends expert testimony is required to determine if the
plans were drawn to scale. We disagree. The admissibility of expert testimony
is governed by N.J.R.E. 702, which provides, "[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the evidence or
to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify thereto in the form of an opinion
A-1989-17T2 10 or otherwise." However, this Rule does not mean such testimony is always
required.
Expert testimony is needed only when "a subject is so esoteric that jurors
of common judgment and experience cannot form a valid conclusion." Hopkins
v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993) (quoting Wyatt v. Wyatt, 217
N.J. Super. 580, 591 (App. Div. 1987)). The need for expert testimony is
ordinarily a matter resting within the discretion of the trial judge. State v.
Griffin, 120 N.J. Super. 13, 20 (App. Div. 1972).
Here, we are satisfied the trial court did not abuse its discretion when it
determined the plans were not drawn to scale. It is obvious the plans are devoid
of any graphic bar scale, legend, or other tool to enable the reader to ascertain
the size or dimensions of the house, let alone the proposed construction or
renovations to such structure.
Defendant argues that granting the Borough summary judgment was not
only premature because discovery had not been completed, but also there exists
genuine issues of material fact that preclude the entry of summary judgment.
We agree with both contentions.
Defendant argues the Borough was equitably estopped from taking action
against him to thwart continued construction on his home. As noted, in response
A-1989-17T2 11 to the Borough's motion for summary judgment, defendant certified that, after
defendant obtained a permit and submitted his plans to the Construction Office,
Luthman told defendant he could proceed with the planned construction. Over
the next two-and-a-half years, Luthman never voiced any objection to the
ongoing construction at the house, even though he periodically visited the site.
Luthman denies defendant's allegations, but as this is the Borough's motion for
summary judgment, we must accept as true defendant's factual assertions. See
Brill, 142 N.J. at 524.
Defendant contends he reasonably relied upon the Borough's
representation that he was permitted to proceed with his plans to renovate the
house, permission that was granted after defendant received the permit and
submitted the subject plans. Defendant claims he should not be prejudiced
because he relied upon the construction officer to his detriment. Therefore,
defendant contends, the Borough must be estopped from taking action to
invalidate the permit and thwart construction on the house, and the provisions
in the November 20, 2017 order granting plaintiff relief reversed.
"The essential principle of the doctrine of estoppel is that one may, by
voluntary conduct, be precluded from taking a course of action that would work
injustice and wrong to one who with good reason and in good faith has relied
A-1989-17T2 12 upon such conduct." Grasso v. Borough of Spring Lake Heights, 375 N.J. Super.
187, 194 (Law Div. 2003) (citing Middletown Twp. Policemen's Benevolent
Ass'n. Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000)) aff'd in
part, 375 N.J. Super. 41 (App. Div. 2004).
In Motley v. Borough of Seaside Park Zoning Bd. of Adjustment, 430 N.J.
Super. 132 (App. Div. 2013), we noted that:
[i]n the specific context of the issuance of building permits, the application of estoppel requires proof of four elements: (1) the building permit was issued in good faith, (2) the building inspector acted "within the ambit of [his] duty" in issuing the permit, (3) a sufficient question of interpretation of the relevant statutes or zoning ordinances as to "render doubtful a charge that the . . . official acted without any reasonable basis" for issuing the permit, and (4) there was "proper good faith reliance" on the issuance of the permit.
[Id. at 152 (second alteration in original) (quoting Jesse A. Howland & Sons, Inc. v. Borough of Freehold, 143 N.J. Super. 484, 489 (App. Div. 1976)).]
We recognize the doctrine of equitable estoppel is "rarely invoked against
a governmental entity." Middletown, 162 N.J. at 367 (quoting Wood v. Borough
of Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div.1999)). Equitable
estoppel may only be applied against a governmental entity "where interests of
justice, morality and common fairness clearly dictate that course." Id. at 367
(quoting Gruber v. Mayor & Twp. Comm., 39 N.J. 1, 13 (1962)). Nonetheless,
A-1989-17T2 13 here, for the reasons stated, there are material questions of fact in dispute on the
issue whether the Borough should be estopped from disputing the validity of the
permit. In addition, defendant contended the Borough acted in bad faith when
it issued the stop construction orders and imposed penalties, which defendant
alleges was, among other things, an abuse of process.
Accordingly, it was premature for the court to grant the Borough summary
judgment and the derivative relief it requested. In addition, defendant had not
yet completed discovery and it cannot be said further discovery would have been
futile. See Driscoll Const. Co. v. State, Dept. of Transp., 371 N.J. Super. 304,
317 (App. Div. 2004) ("A trial court should not grant summary judgment when
the matter is not ripe for such consideration, such as when discovery has not yet
been completed."). Accordingly, we reverse those provisions of the November
20, 2017 order granting summary judgment to plaintiff and the other relief
entered in plaintiff's favor.
II
Defendant argues the trial court erred when it denied his motion for
summary judgment. It is not clear from the record what defendant argued in
support of his motion, thwarting our review of the merits of his position.
However, contrary to Rule 1:7-4, the trial court failed to provide any reason for
A-1989-17T2 14 denying defendant's motion. Therefore, we vacate the provision in the
November 20, 2017 order denying defendant's motion for summary judgment.
On remand, the court shall provide to the parties its reasons for denying
defendant's motion for summary judgment, within sixty days.
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
A-1989-17T2 15