JOHN THOMPSON VS. MANSFIELD TOWNSHIP(L-0412-14, WARREN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: November 20, 2017
• Docket: A-4087-15T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4087-15T4

JOHN THOMPSON AND CAROL THOMPSON,

Plaintiffs-Appellants,

v.

MANSFIELD TOWNSHIP, a Municipal Corporation of the State of New Jersey, ROUTE 57 AUTO SALVAGE, INC. and NICTO'S SERVICE, INC., d/b/a WOODLAND AUTO SALES,

Defendants-Respondents. _____________________________

Argued September 28, 2017 – Decided November 20, 2017

Before Judges Simonelli, Haas and Gooden Brown.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Docket No. L-0412-14.

Allen Hantman argued the cause for appellant (Morris & Hantman, attorneys; Mr. Hantman, on the briefs).

James F. Moscagiuri argued the cause for respondent Mansfield Township (Lavery, Selvaggi, Abromitis & Cohen, attorneys; Mr. Moscagiuri, on the brief).

Paul E. Rusen argued the cause for respondents Route 57 Auto Salvage, Inc. and Nicto's Service, Inc., d/b/a Woodland Auto Sales (Collins Toner & Rusen, LLC, attorneys, join in the brief of respondent Mansfield Township).

PER CURIAM

Defendants Route 57 Auto Salvage, Inc. and Nicto's Service,

Inc. (collectively, Route 57) operate an auto salvage yard and

used car dealership on property located across the street from

property owned by plaintiffs John Thompson and Carol Thompson in

Mansfield Township. The Township's Zoning Officer determined that

this use of the property constituted a legal pre-existing, non-

conforming use. Plaintiffs claim that Route 57, which acquired

the property in 2008, expanded the use beyond the area of the

permitted use in violation of the zoning ordinances.

Beginning in 2008, plaintiffs complained to the Township that

Route 57 illegally used the property as a used car dealership and

expanded the operation of the auto salvage yard beyond the

permitted area.1 In March 2008, the Township's Zoning Officer

investigated plaintiffs' complaints and found the property was

legally used as an auto salvage yard and used car dealership prior

1 We shall sometimes collectively refer to Route 57 and the Township as defendants.

2 A-4087-15T4 to the effective date of the current zoning scheme prohibiting

junk yards. The Zoning Officer concluded that such use was a

protected pre-existing, non-conforming use. In January 2010, the

Township's new Zoning Officer confirmed that use of the property

as an auto salvage yard and used car dealership was a protected

pre-existing, non-conforming use.

Plaintiffs appeared at Township Committee meetings and

reiterated their complaints about Route 57's alleged illegal use

of the property. The Zoning Officer investigated the complaints

and issued notices of violation to Route 57 when he found

violations. The violations were resolved by a Municipal Court

order, which imposed certain conditions on Route 57's use of the

property. The Zoning Officer conducted site inspections to carry

out the substance of the order, and imposed additional conditions.

Route 57 complied with all conditions.

Plaintiffs did not administratively appeal the Zoning

Officer's decision. In December 2014, they filed a complaint in

lieu of prerogative writs. Plaintiffs sought mandamus relief

compelling the Township to enforce its zoning ordinances, and

issue a complaint and cease and desist order to Route 57 for zoning

violations and misuse of the property. Plaintiffs also sought to

enjoin Route 57 from using the property beyond the area of the

permitted use for any commercial purpose. In their respective

3 A-4087-15T4 answers, defendants asserted that the complaint failed to state a

claim upon which relief can be granted and was time-barred.

The parties appeared at a case management conference on

February 26, 2015, and discussed whether plaintiffs had a

cognizable cause of action against defendants. The court entered

a case management order that day, requiring the parties to submit

briefs and supporting documents addressing this issue. No one

objected to this procedure. In a June 30, 2015 amended case

management order, the court extended plaintiffs' time to submit

their brief and supporting documents for sixty days, with

defendants submitting their briefs and supporting documents thirty

days thereafter.

All parties submitted briefs and supporting certifications

and documents. Route 57's supporting certification confirmed that

the property had been legally used as an auto salvage yard and

used car dealership since 1953. On October 13, 2016, the parties

appeared at a conference, where they discussed their respective

submissions with the court. The record does not reveal that any

party requested oral argument or a plenary hearing.

The court entered an order on November 4, 2015, dismissing

the complaint with prejudice as to the Township. In a written

statement of reasons, the court found that plaintiffs' claim

against the Township was precluded as a matter of law because

4 A-4087-15T4 mandamus was not available for discretionary acts where the Zoning

Officer properly exercised his discretion in determining that use

of the property as an auto salvage yard and a used car dealership

constituted a pre-existing, non-conforming use consistent with

historical use. The court also found that pursuant to Rule 4:69-

5, an action in lieu of prerogative writs was not maintainable

because plaintiffs failed to exhaust their administrative remedies

under N.J.S.A. 40:55D-70 by first appealing the Zoning Officer's

decision to the Township's Zoning Board of Adjustment (Board).

Lastly, the court found the complaint was untimely under Rule

4:69-6(b)(3).

Plaintiffs filed a motion for reconsideration, arguing

"[t]here was no motion filed by the defendants, there was no

argument on the record, and there were no reasons set forth on any

record for the entry of the November 4, 2015 [o]rder." Plaintiffs

also argued "that the methodology used here to dismiss the case

was inconsistent with the Rules of Court[;]" however, they did not

identify any Rule that was violated.

The court entered an order on January 8, 2016, denying the

motion. In a written statement of reasons, the court found that

the methodology used to determine whether plaintiffs had a

cognizable claim against defendants did not violate the Rules of

Court; plaintiff was properly noticed and consented to the

5 A-4087-15T4 methodology used; the parties submitted briefs; and the court had

issued a written statement of reasons. The court did not find its

ruling was plainly incorrect or that it failed to consider relevant

evidence, and found plaintiffs presented no new information to

warrant reconsideration.

We subsequently denied plaintiffs' motion for leave to

appeal. Thereafter, in an April 20, 2016 order, the court sua

sponte dismissed the complaint with prejudice. In a written

statement of reasons, the court found the complaint had been

dismissed with prejudice as to the Township, and a prerogative

writs action could not continue against Route 57 without the

municipal defendant.

Plaintiffs appeal from the January 8, 2016 and April 20, 2016

orders.2 On appeal, plaintiffs contend the court improperly

dismissed this action without a hearing and fact-finding. We

disagree. Plaintiffs had notice of defendants' claim that the

complaint failed to state a claim upon which relief can be granted,

had notice of, and did not object to, the procedure the court

2 Plaintiffs did not address the dismissal of the complaint with prejudice as to Route 57 in their merits brief. The issue, therefore, is deemed waived. N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div.), certif. denied, 222 N.J. 17 (2015); Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 2:6-2 (2018).

6 A-4087-15T4 employed to address this issue, and were afforded ample and

meaningful opportunity to respond. See Klier v. Sordoni Skanska

Const. Co., 337 N.J. Super. 76, 84 (App. Div. 2001) (citations

omitted). Further, the judge made factual and legal determinations

in a written opinion.

That being said, we address plaintiffs' remaining contention

that because their complaint set forth a cause of action, the

court erred in denying reconsideration. Plaintiffs argue there

were no administrative remedies available, and N.J.S.A. 40:55D-70

does not provide an appropriate remedy against a municipality.

Plaintiffs also argue that the forty-five day limitation period

under Rule 4:69-6(b)(3) does not apply because they received no

notice of the Zoning Officer's actions.3

We have determined that reconsideration

is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the

3 Plaintiffs rely on an unpublished opinion to also argue that the Zoning Officer lacked authority to decide the status of the property's pre-existing, non-conforming use after one year of the adoption of the ordinance that rendered the use nonconforming. Because unpublished opinions do not constitute precedent or bind us, we reject this argument. Trinity Cemetery Ass'n v. Twp. of Wall, 170 N.J. 39, 48 (2001); R. 1:36-3.

7 A-4087-15T4 significance of probative, competent evidence. [Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (citations omitted).]

We will not disturb a trial judge's denial of a motion for

reconsideration absent a clear abuse of discretion. Pitney Bowes

Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382

(App. Div. 2015) (citation omitted). An "abuse of discretion only

arises on demonstration of 'manifest error or injustice[,]'"

Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres,

183 N.J. 554, 572 (2005)), and occurs when the trial judge's

"decision is 'made without a rational explanation, inexplicably

departed from established policies, or rested on an impermissible

basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div.

2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571

(2002)).

We agree with plaintiffs that the forty-five day limitation

period under Rule 4:69-6(b)(3) does not apply. The Rule requires

"the publication of a notice once in the official newspaper of the

municipality or a newspaper of general circulation in the

municipality[.]" The Rule does not permit verbal or constructive

notice. There is no evidence of a notice published in a municipal

newspaper of the Zoning Officer's determination. Accordingly, the

court erred in finding the complaint was untimely.

8 A-4087-15T4 Nevertheless, the court properly dismissed the complaint with

prejudice as to the Township as a matter of law. Citizens may

bring prerogative writ actions to challenge agency decisions or

actions. Alexander's Dep't Stores v. Paramus, 125 N.J. 100, 107

(1991) (citation omitted). The court's jurisdiction extends not

only to an agency's action, but also to inaction. Caporusso v.

N.J. Dep't of Health & Senior Servs., 434 N.J. Super. 88, 101

(App. Div. 2014) (citation omitted). "As is the case with all

equitable remedies, the court must exercise its discretionary

authority to issue a writ of mandamus carefully, in furtherance

of essential justice, and 'subject to important and well-defined

qualifications.'" Mullen v. Ippolito Corp., 428 N.J. Super. 85,

102 (App. Div. 2012) (quoting Garrou v. Teaneck Tryon Co., 11 N.J.

294, 302 (1953)).

"To bring an action in lieu of prerogative writs, a plaintiff

must show that the appeal could have been brought under one of the

common-law prerogative writs[.]" Vas v. Roberts, 418 N.J. Super.

509, 522 (App. Div. 2011) (quoting Alexander's Dep't Stores, supra,

125 N.J. at 107). "Included among the common law prerogative

writs is mandamus, which is a writ directing government officials

to carry out required ministerial duties." Caporusso, supra, 434

N.J. Super. at 100 (quoting In re Application of LiVolsi, 85 N.J.

576, 594 n.18 (1981)).

9 A-4087-15T4 "A ministerial duty is one that 'is absolutely certain and

imperative, involving merely the execution of a set task, and when

the law which imposes it prescribes and defines the time, mode and

occasion of its performance with such certainty that nothing

remains for judgment or discretion.'" Id. at 102 (quoting Ivy Hill

Park Apartments v. N.J. Prop. Liab. Ins. Guar. Ass'n, 221 N.J.

Super. 131, 140 (App. Div. 1987), certif. denied, 110 N.J. 188

(1988)). "In other words, 'mandamus is an appropriate remedy (1)

to compel specific action when the duty is ministerial and wholly

free from doubt, and (2) to compel the exercise of discretion, but

not in a specific manner.'" Ibid. (quoting Vas, supra, 418 N.J.

Super. at 522). However,

[m]andamus is not an available remedy if the duty to act is a discretionary one and the discretion has been exercised. Absent a showing that there was a lack of good faith or other invidious reason for the action or inaction, mandamus cannot be invoked to force [an] agency to prosecute.

[Moss v. Shinn, 341 N.J. Super. 327, 341 (Law Div. 2000), aff'd, 341 N.J. Super. 77 (App. Div. 2001).]

Further, mandamus relief to compel municipal officials to

enforce zoning ordinances is not absolute. "[B]oth the plaintiff's

right to the relief requested and the defendant's duty to perform

it must 'legally be clear.' Mandamus relief 'must be denied where

equity or paramount public interest so dictates or there is other

10 A-4087-15T4 adequate relief available.'" Mullen, supra, 428 N.J. Super. at

102 (quoting Garrou, supra, 11 N.J. at 302). "[T]he 'relief must

realistically be adequate and the theoretical possibility of

indictment of the public official is no barrier to mandamus.'"

Ibid. (quoting Garrou, supra, 11 N.J. at 303). Those seeking

mandamus relief to enforce a zoning ordinance must show:

(1) . . . that there has been a clear violation of a zoning ordinance that has especially affected the plaintiff; (2) a failure of appropriate action despite the matter having been duly and sufficiently brought to the attention of the supervising official charged with the public duty of executing the ordinance; and (3) the unavailability of other adequate and realistic forms of relief.

[Id. at 103 (citing Garrou, supra, 11 N.J. at 302-04).]

Mandamus was not an appropriate remedy in this case.

Plaintiffs sought to compel the Township to issue a complaint and

cease and desist order to Route 57 for zoning violations and misuse

of the property. The Township's duty to do so was not ministerial.

Rather, it was discretionary and plaintiffs sought to compel the

Township to exercise its discretion in a specific manner, which

the law prohibits. Further, the discretionary act had been

exercised by the Zoning Officer, and there was no showing of a

lack of good faith or other invidious reason for his action or

inaction.

11 A-4087-15T4 In addition, there was no clear violation of the zoning

ordinances. Route 57's use of the property as an auto salvage

yard and used car dealership is a protected pre-existing, non-

conforming use. When plaintiffs complained that Route 57 expanded

its use of the property beyond the permitted area, their complaints

did not go unaddressed. Rather, the Zoning Officer investigated

the complaints, issued notices of violations when appropriate, and

imposed conditions on Route 57's use of the property in accordance

with the historical, permitted use. The Zoning Officer took

appropriate action and enforced the zoning ordinances. Thus,

plaintiffs' complaint in lieu of prerogative writs was properly

dismissed as a matter of law.

In addition, if plaintiffs were dissatisfied with the Zoning

Officer's decisions or refusal to enforce the zoning ordinances,

there was administrative relief available to them. Municipal

zoning boards of adjustment are authorized to "[h]ear and decide

appeals where it is alleged by the appellant that there is error

in any order, requirement, decision or refusal made by an

administrative officer based on or made in the enforcement of the

zoning ordinance[.]" N.J.S.A. 40:55D-70(a) (emphasis added). A

formal determination from the administrative officer is not

required for an appeal to the board of adjustment. "Appeals to

the board of adjustment may be taken by any interested party

12 A-4087-15T4 affected by any decision of an administrative officer of the

municipality based on or made in the enforcement of the zoning

ordinance or official map." N.J.S.A. 40:55D-72(a) (emphasis

added). "Such appeal shall be taken within [twenty] days by filing

a notice of appeal with the officer from whom the appeal is taken

specifying the grounds of such appeal." Ibid.

"Except where it is manifest that the interest of justice

requires otherwise, actions [in lieu of prerogative writs] shall

not be maintainable as long as there is available a right of review

before an administrative agency which has not been exhausted." R.

4:69-5; see also Mullen, supra, 428 N.J. Super. at 104. Exceptions

to this requirement include cases where only a question of law

needs to be determined, administrative remedies would be futile

or result in irreparable harm, the agency’s jurisdiction is

doubtful, and an overriding public interest warrants a swift

judicial determination. Abbott v. Burke, 100 N.J. 269, 298 (1985)

(citations omitted). None of these exceptions applies here.

Whether Route 57 exceeded the parameters of the permitted

non-conforming use is a question of fact the Board was best

equipped to determine. Plaintiffs offer no evidence suggesting

that an appeal to the Board would have been futile or resulted in

irreparable harm. Plaintiffs also do not argue that an overriding

public interest warranted judicial determination. Given that

13 A-4087-15T4 N.J.S.A. 40:55D-70(a) and N.J.S.A. 40:55D-72(a) confer the power

to hear any appeals from a zoning officer's decision or refusal

to act to the board of adjustment and none of the Abbott exceptions

apply, plaintiffs were obligated to exhaust their administrative

remedies before filing suit. R. 4:69-5. Their failure to do so

warranted dismissal of their complaint with prejudice as a matter

of law.

Affirmed.

14 A-4087-15T4