JESSE ROSENBLUM VS. BOROUGH OF CLOSTER (L-7037-15, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 11, 2018
• Docket: A-5577-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5577-15T2

JESSE ROSENBLUM,

Plaintiff-Appellant,

v.

BOROUGH OF CLOSTER,

Defendant-Respondent. _____________________________

Argued January 22, 2018 – Decided July 11, 2018

Before Judges Whipple and Rose.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L- 7037-15.

Jesse Rosenblum, appellant, argued the cause pro se.

Edward T. Rogan argued the cause for respondent (Edward Rogan & Associates, LLC, attorneys; JoAnn Riccardi Schuman, on the brief).

PER CURIAM

Plaintiff Jesse Rosenblum appeals from a July 12, 2016 order

granting summary judgment in favor of defendant Borough of Closter (Borough). Having reviewed plaintiff's arguments in light of the

record and applicable legal principles, we affirm.

Plaintiff is a resident and a taxpayer in the Borough who

brought suit seeking to invalidate an ordinance, which amended the

Borough's Code. In 2015, the Borough passed ordinance 2015-1186,

amending section 200-69E of the Code. Prior to the enactment of

the ordinance, this section of the Code limited each lot in the

Business Zone, to no more than one principle use and no more than

one building. That restriction was enacted in 1980. Prior to the

1980 provision, there existed several lots in the Business Zone

containing more than one building on a single lot. After the

ordinance passed in 2015, the Business Zone was exempted from the

limitation on how many buildings or uses may be on each lot. This

was done, at least in part, to discourage "big box" stores in the

Business Zone.

In July 2015, plaintiff filed a complaint in lieu of

prerogative writs under Docket No. L-7037-15, seeking to have the

ordinance declared null and void for: (1) being arbitrary,

capricious, and unreasonable; (2) failing to comply with

provisions of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-

2 to -163; and (3) failing to comply with the notice requirements

of N.J.S.A. 40:55D-62.1. On September 28, 2015, the Borough filed

an answer to plaintiff's complaint.

2 A-5577-15T2 On February 9, 2016, plaintiff moved for summary judgment

arguing he had not been provided the proper notice under N.J.S.A.

40:55D-62.1 and that the ordinance constituted a change in

classification within the Business Zone. On March 29, 2016, the

court denied plaintiff's motion because "the ordinance did not

constitute a change in classification," thus plaintiff was not

entitled to notice under N.J.S.A. 40:55D-62.1. An order reflecting

the ruling was entered on August 18, 2016; plaintiff did not appeal

from this order.

On April 29, 2016, the Borough moved for summary judgment

arguing there was no genuine issue of material fact and plaintiff

had presented no evidence or produced any expert report indicating

the ordinance violated the MLUL and it was invalid for being

arbitrary, capricious, or unreasonable. On June 9, 2016, the

court in an oral decision, granted the Borough's motion. The

judge determined plaintiff did not provide the court with competent

evidence as to why the purpose clause of the MLUL, N.J.S.A. 40:55D-

2 had been violated. The judge stated, "[p]laintiff solely

provided conclusory allegations absent material documentation."

In response to the allegation the Borough violated the notice

requirement of N.J.S.A. 40:55D-62.1, the judge stated it "has

already been addressed by this Court as the law of the case that

notice to Plaintiff was not required."

3 A-5577-15T2 The court rejected plaintiff's allegations the ordinance was

arbitrary, capricious, or unreasonable. An order was entered on

July 12, 2016, and it is from this order that plaintiff appeals,

arguing the trial court erred in granting summary judgment for the

Borough.

When we review a grant of summary judgment, we use the same

standard as that of the trial court. Globe Motor Co v. Igdalev,

225 N.J. 469, 479 (2016). A court should grant summary judgment,

"if the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, 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." Ibid. (citing R. 4:46-2(c)). The evidence must

be viewed in "the light most favorable to the non-moving party."

Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012).

"Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard

mandates that the opposing party do more than 'point[] to any fact

in dispute' in order to defeat summary judgment." Globe Motor

Co., 225 N.J. at 479 (quoting Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 529 (1995)) (alteration in original).

Plaintiff presented four issues for us to consider.

Plaintiff's first contention is the ordinance was invalid because

the Borough did not comply with the personal notice requirements

4 A-5577-15T2 of the MLUL. We disagree. The order entered on March 29, 2016,

dealt finally and completely with the notice question, when the

judge found that "the ordinance did not constitute a change in

classification," thus plaintiff was not entitled to personal

notice.

However, plaintiff only appeals from the July 12, 2016 order,

granting summary judgment to the Borough. "It is clear that it

is only the orders designated in the notice of appeal that are

subject to the appeal process and review." W.H. Indus., Inc. v.

Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div.

2008) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-

66 (App. Div. 1994)). Plaintiff did not appeal from the March 29

order, therefore it is not within the jurisdiction of this court,

and we decline to consider any arguments regarding the notice

requirement of N.J.S.A. 40:55D-62.1.

Plaintiff's next contention is that the ordinance contains

misinformation which makes its adoption arbitrary and capricious.

"A municipal ordinance under review by a court enjoys a presumption

of validity and reasonableness." State v. Clarksburg Inn, 375

N.J. Super. 624, 632 (App. Div. 2005) (citing First Peoples Bank

of N.J. v. Twp. of Medford, 126 N.J. 413, 418 (1991)). "Municipal

ordinances are normally liberally construed in favor of the

municipality and are presumed valid, with the burden of proving

5 A-5577-15T2 otherwise placed upon the party seeking to overturn the ordinance."

State v. Golin, 363 N.J. Super. 474, 481-82 (App. Div. 2003); Dome

Realty, Inc. v. Paterson, 83 N.J. 212, 235 (1980) ("courts place

a heavy burden on the proponents of invalidity"). Only a showing

of "clear and convincing evidence" may overcome this presumption.

Spring Lake Hotel & Guest House Assn. v. Spring Lake, 199 N.J.

Super. 201, 210 (App. Div. 1985).

Specifically in the case of zoning ordinances, "[i]t is

fundamental that zoning is a municipal legislative function,

beyond the purview of interference by the courts unless an

ordinance is seen in whole or in application to any particular

property to be clearly arbitrary, capricious or unreasonable, or

plainly contrary to fundamental principles of zoning" or

applicable statutes. Bow & Arrow Manor v. West Orange, 63 N.J.

335, 343 (1973); Yousefian v. Mun. Council of Wayne, 152 N.J.

Super. 111, 121 (Super. Ct. 1977) (citation omitted). "[T]he

fundamental question in all zoning cases 'is whether the

requirements of the ordinance are reasonable under the

circumstances.'" Pheasant Bridge Corp. v. Twp. of Warren, 169

N.J. 282, 290 (2001) (quoting Vickers v. Twp. Comm. of Gloucester

Twp., 37 N.J. 232, 245 (1962)).

Plaintiff has submitted no evidence here or before the trial

court, besides his unsubstantiated and conclusory allegations, to

6 A-5577-15T2 support his assertion the ordinance at issue was arbitrary,

capricious, or contrary to zoning principles.

We reject plaintiff's assertion the wording in five of the

"whereas" clauses preceding the body of the ordinance are replete

with such misinformation as to create issues of material fact such

that we would find that the trial court erred in granting summary

judgment for the Borough. We also reject plaintiff's argument

that the Borough's actions amounted to spot zoning. Plaintiff did

not set forth sufficient evidence, or really any evidence, to

satisfy his burden in raising these arguments with the trial court.

Plaintiff's additional arguments, many of which were not

raised below, lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

7 A-5577-15T2