NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3086-23
SANDRA LEMA and ABELINO MOROCHO,
Plaintiffs-Appellants,
v.
THE BOROUGH OF GARWOOD, THE BOROUGH OF GARWOOD PLANNING BOARD, 680 MYRTLE AVENUE, LLC, SITESCAPES LANDSCAPE AND DESIGN, LLC, SITESCAPES CONSTRUCTION MANAGEMENT, LLC, and SITESCAPES LANDSCAPE & DESIGN MASON CONTRACTORS,
Defendants-Respondents. _______________________________
Argued November 3, 2025 – Decided November 21, 2025
Before Judges Gilson, Firko, and Vinci.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3957-20. Robert F. Simon argued the cause for appellant (Herold Law, PA, attorneys; Robert F. Simon, of counsel and on the briefs; John P. Kaplan, on the briefs).
Frank J. Dyevoich argued the cause for respondents Borough of Garwood and Borough of Garwood Planning Board (Rainone Coughlin Minchello, LLC, attorneys; Frank J. Dyevoich, of counsel and on the brief).
James M. Foerst argued the cause for respondents 680 Myrtle Avenue LLC, Sitescapes Landscape and Design, LLC, Sitescapes Construction Management LLC, and Sitescapes Landscape & Design Mason Contractors (Spector Foerst & Associates, and Foley & Foley, attorneys; Timothy J. Foley and James M. Foerst, on the brief).
PER CURIAM
Plaintiffs Sandra Lema and Abelino Morocho appeal from three April 23,
2024 orders denying their motion for summary judgment and granting summary
judgment in favor of defendants Borough of Garwood (Borough) and Borough
of Garwood Planning Board (Board) (collectively the Borough Defendants), and
680 Myrtle Avenue, LLC, Sitescapes Landscape and Design, LLC, Sitescapes
Construction Management, LLC, and Sitescapes Landscape & Design Mason
Contractors (collectively Sitescapes). We affirm substantially for the reasons
set forth in Judge Lisa M. Walsh's comprehensive and well-reasoned written
opinion.
A-3086-23 2 I.
We summarize the facts supported by competent evidence in the record
viewed in the light most favorable to plaintiffs. See Brill v. Guardian Life Ins.
Co. of Am., 142 N.J. 520, 540 (1995). Plaintiffs reside at 313 Myrtle Avenue
in Westfield, which they purchased in 2015. Sitescapes owns and operates its
businesses at 680 Myrtle Avenue in Garwood (the Property), which is adjacent
to plaintiffs' property.
The Property is located within the Borough's single-family residential
zone but has been the site of non-conforming commercial operations including
industrial fabrication, masonry and heavy construction, roofing, and landscaping
since at least 1970. In 1974, the Property was purchased by M. Hirsch & Sons,
Inc. On September 12, 1974, the Borough issued a certificate of occupancy to
"F. Hirsch" to use the Property "for the purposes of a private garage." Effective
November 11, 1974, the Property was located in the Borough's single-family
residential zone. In 1986, the Borough issued a certificate of continued
occupancy for the Property to "538 Corp." for the "specific use" of "storage of
business trucks."
In 1998, Landover Cooling Tower Service, Inc. (Landover) sought
permission to locate its cooling tower inspection and maintenance business at
A-3086-23 3 the Property. Landover submitted a proposal to the Borough in which it
proposed to use the property as follows: (1) "[p]arking for four company trucks
([i]nside of the building)"; (2) "[p]arking for two small trailers ([e]ach trailer is
5x16 enclosed trailer)"; (3) "[d]aytime [e]mployee parking"; (4)
"[a]dministrative [o]ffice inside [one-third] of the building"; (5) "[w]orking
hours will be normal day[-]time working hours 8:00 a.m.-6:00 p.m."; and (6)
"[n]umber of employees[:] six." On September 14, 1998, the Borough Zoning
Officer advised Landover she "conducted extensive research on
the . . . [P]roperty and [found] that [Landover] may locate [its] business there in
accordance with the" proposal.
On May 25, 2004, Landover, then known as Mainsail Corporation
(Mainsail), applied to the Board for a use variance to expand the preexisting
commercial non-conforming use of the Property. Mainsail stated "[t]he property
is presently used as the warehouse and office of the property owner [.] . . . The
present interior is used for office and storage. The exterior is for parking and
equipment." Before the Board, Mainsail stated it had "six employees, three
trucks, and the hours of operation were 7:00 [a.m.] to 5:30 [p.m.] Monday-
Friday[.]"
A-3086-23 4 On July 14, 2004, the Board adopted a resolution (the 2004 Resolution),
"permit[ting] the demolition and reconstruction of the commercial structure"
situated on the Property, subject to the following conditions:
(1) Hours of operation shall not exceed 7:00 a.m. to 7:00 [p.m.] Monday to Saturday; there shall be no operation on Sunday;
(2) All construction shall meet applicable building codes and sub-codes;
(3) There shall be no cleaning or maintenance of vehicles performed on-site;
(4) The design/specifications of the garage doors shall be subject to the approval of [the Zoning Code Officer][;]
(5) No fabrication, manufacturing, or sales shall be conducted on-site[;]
(6) The permitted use of property shall be limited to being a base for off-site servicing and maintenance[;] [and]
(7) The driveway shall be Belgian-Blocked from the street up to the gate, subject to the approval of [the] Planner [][.]
Mainsail did not demolish and reconstruct the commercial building on the
Property as permitted by the 2004 Resolution, and the resolution was abandoned.
In May 2016, Sitescapes began operations at the Property as a tenant. On
March 13, 2018, Sitescapes submitted a "zoning request/questions" form to the
A-3086-23 5 Borough, stating it was "currently purchasing [the Property]. [Sitescapes] would
like to request usage of the Property for [its] construction company."
On April 19, 2018, the Zoning Code Officer, Victor Vinegra, issued a
zoning certificate for the Property approving Sitescapes' request to "purchase
[the] building, continue non[-]conforming use, owner occupy for use of yard
[and] office." According to Vinegra, he
reviewed the "Preliminary Assessment Report" performed by Peak Environmental, Inc. [(Peak Environmental)] and dated September 1998. This document[] was prepared as part of a submittal to [the New Jersey Department of Environmental Protection] concerning the uses of the [P]roperty in reference to environmental concerns. Peak Environmental researched the previous uses at [the Property] over the last forty plus years. The uses on the referenced site since at least 1970 include the following:
1. Industrial Fabrication.
2. Masonry and heavy construction.
3. Roofing.
4. Landscaping.
Site[s]capes is seeking to continue with the pre[]existing non-conforming uses of landscaping/masonry contractor. It is my professional opinion that Site[s]capes can occupy the site and qualifies as a "pre[]existing" non-conforming use and does NOT have to come before the Borough's Zoning Board for approval of occupancy.
A-3086-23 6 On June 28, 2018, Mainsail sold the Property to 680 Myrtle Avenue LLC
(680 Myrtle), an entity that shares common ownership with Sitescapes. 680
Myrtle then leased the property to Sitescapes.
On November 14, 2018, plaintiffs, through counsel, wrote to Vinegra,
asking whether "Sitescape[s] s[ought] use variance relief and if not by what
authority [is it] operating what is a different non-conforming use" than permitted
by the 2004 Resolution. Plaintiffs asserted Sitescapes "has consistently violated
several of the conditions" of the 2004 Resolution and "[t]he violations are so
extensive that the operation is not merely an intensification of the prior use but
indeed a completely different use." They made "a formal request that [Vinegra]
investigate [Sitescapes'] failure to comply with the 2004 [R]esolution."
Plaintiffs specifically alleged the following violations:
Resolution Condition #1 . . . restricted hours of operation [from] 7:00 a[.]m[.] to 7:00 p[.]m. Trucks have been continuously observed coming to the property at 6:00 a.m. on a daily business and often leaving at 11:00 p.m. Operations are occurring on Sunday, contrary to the [2004 R]esolution.
....
Resolution Condition #3 . . . is also being violated in that [Sitescapes] has often been seen using a power washer machine to clean the trucks[,] even on Sundays.
A-3086-23 7 Resolution Condition #5 prohibits fabrication, manufacturing[,] and sales conducted from the site. Although there is no fabrication or manufacturing, the applicant is storing large amounts of construction material on the premises. This is clearly in violation of the spirit of the condition. Indeed[,] it is also a violation of Condition #6, which states that the property shall be limited to off-site servicing and maintenance of vehicles.
On December 5, 2019, plaintiffs again wrote to Vinegra claiming
"commercial operations currently taking place at the [P]roperty . . . are not
protected nor 'grandfathered' as a legally valid, pre[]existing, non[-]conforming
use."
They alleged
Site[s]capes has been utilizing the Property well beyond the limited commercial activities at the Property conducted and permitted prior to Mainsail's 2004 application – namely, as specifically approved by the [Garwood] Zoning Officer . . . on September 14, 1998[,] which provided that Landover may locate its business at the Property in accordance with its outline of proposed use provided to the Zoning Officer on September 9, 1998.
The actions of Site[s]capes are not remotely "substantially similar" to the use that existed at the Property at the time of the adoption of the zoning ordinance placing the Property in a residential zone. Site[s]capes is operating its construction business at the Property in a manner that goes well beyond what is
A-3086-23 8 permitted[.] . . . It is abundantly clear . . . that any pre[]existing non-conforming use of the Property has been substantially "enlarged, extended[,] [and] substituted" in violation of the Garwood Zoning Ordinance, the Municipal Land Use Law, and applicable law.
Plaintiffs requested "that [Vinegra], as the Zoning Officer and
Administrative Officer, confirm to [them] in writing within the next ten . . . days
that Site[s]capes must immediately cease its expanded operations . . . and
instead conform to the legally permitted limits for any commercial use of the
Property as a pre[]existing, non-conforming use as confirmed by the Garwood
Zoning Officer in 1998." On January 7, 2020, plaintiffs again wrote to Vinegra,
requesting confirmation "in writing that . . . Site[s]capes immediately cease its
expanded operations and instead conform to the legally permitted limits for any
commercial use of the Property . . . confirmed by the [Borough] Zoning Officer
in 1998."
On January 23, 2020, plaintiffs filed an "appeal and application for
interpretation of ordinance" with the Board "concerning the failure
of . . . Vinegra . . . to provide confirmation that the nature and intensity of the
use of the [P]roperty . . . has changed and expanded well beyond that in effect
at the time the Property became non[-]conforming." "As no response was ever
received [to their December 5, 2019, and January 7, 2020] letter[s]" plaintiffs
A-3086-23 9 submitted their appeal and application for interpretation "as to whether
Site[s]capes' use of the Property . . . has improperly expanded beyond the
'grandfathered' conditions." The Board scheduled a hearing for July 22, 2020.
In a July 17, 2020 letter to the Board, Vinegra stated he
was in contact with [plaintiffs] back in 2019. . . . [He] had numerous conversations with [plaintiffs' former attorney] to discuss [plaintiffs'] concerns. In 2019, [he] had numerous conversations with [plaintiffs' counsel] to discuss his clients' concerns. Somewhere in the summer of 2019[, he] met with [plaintiffs] at [their] home next door to [the Property]. [His] determination . . . [was] that the existing use by Site[s]capes was a pre[]existing non-conforming use and that the restrictions [plaintiffs] wanted [to] enforce[] were not applicable. He notified [plaintiffs' counsel] and [plaintiffs] of [his] findings.
After Vinegra advised plaintiffs that Sitescapes' "use was consistent with
the prior uses which utilized the site in the past[,]" plaintiffs' counsel "did not
pursue any additional determinations after [their] on-site meeting." Based on
his review of the historical uses of the property, Vinegra advised the Board
"Site[s]capes . . . is a landscaping/mason/general site contractor which is NOT
substantially different from the previous uses since 1970." His "professional
opinion" as the Zoning Officer was that "Site[s]capes compli[ed] with the
provisions as a 'construction contractors' yard' and is a pre[]existing non-
conforming use. Thus, they are operating legally as far as zoning regulations."
A-3086-23 10 On July 22, 2020, plaintiffs' attorney wrote to the Board claiming
Vinegra's July 17, 2020 correspondence "constitute[s] 'a decision or refusal
made by an administrative officer based on or made in the enforcement of the
zoning ordinance,' contemplated by N.J.S.A. 40:55D-70(a)." Plaintiffs
requested the hearing on their appeal be adjourned to August 26, 2020. It was
subsequently rescheduled for September 30, 2020.
On September 30, 2020, Donald Fraser, Esq., the Board's attorney,
advised the Board that "before [it] can, or should, reach the question of whether
or not the activities of [Sitescapes] are in compliance with the applicable
[z]oning [o]rdinance, and/or any prior approvals granted by the Board and/or
any municipal official, the Board must first address the question of whether it
has jurisdiction to consider the matter, and/or to grant whatever relief may be
sought."
Fraser concluded plaintiffs' appeal "is a matter for the courts, and not for
the . . . Board to decide." He concluded plaintiffs
"[f]undamentally . . . seek[] . . . to enforce the zoning ordinance against
[Sitescapes], contending that the activities taking place at [the Property] violate
the zoning ordinance." According to Fraser,
The [Board] is not the entity charged with enforcement. If the [plaintiffs] believe that the Zoning Officer is
A-3086-23 11 improperly failing to discharge his duties, the [plaintiffs] could either file a citizen's complaint in [m]unicipal [c]ourt. . . . [or] the [plaintiffs] could file in Superior Court, and seek either injunctive relief against [Sitescapes], and/or a mandamus compelling the Zoning Officer to act.
In addition, Fraser advised the Board that plaintiffs' "appeal [was]
untimely" because it was filed more than twenty days after the Zoning Officer's
decision, in violation of N.J.S.A. 40:55D-72. Specifically, Vinegra "met with
[plaintiffs and their attorney] in the summer of 2019. Whether or not [plaintiffs]
were aware of [Vinegra's] decision prior to the time of the meeting in the
summer of 2019, they clearly were aware of it by then. Hence, the [twenty] days
expired long before the submission of [plaintiffs'] present appeal." Lastly,
Fraser did "not see a basis for [plaintiffs'] request for interpretation under
N.J.S.A. 40:55D-70(b)" because "[t]hat subsection . . . relates to interpretation
of 'the zoning map or ordinance,' which is not at issue in this case."
On September 30, 2020, the Board considered plaintiffs' appeal and
application at a public meeting. Plaintiffs' counsel appeared at the hearing and
argued in opposition to the denial of the appeal and application. On October 14,
2020, the Borough adopted a resolution denying plaintiffs' January 23, 2020
appeal and application, based on "the reasons set forth in [Fraser's] September
30, 2020 [o]pinion [l]etter."
A-3086-23 12 In a letter dated October 19, 2020, Vinegra advised Sitescapes he
"[o]riginally . . . issued a letter permitting the continuance of a landscaping
company" and "[s]ince the April 18, 2018 letter, [he] believe[d]
[Sitescapes] . . . expanded into the heavy excavating/trucking business[,] which
is not landscaping." He demanded Sitescapes correct the violations
immediately.
On October 20, 2020, the Borough Zoning Enforcement Officer issued a
violation notice to Sitescapes for (1) "expansion of non-conforming use –
tandem dump trucks;" (2) "dumpster in front yard, unscreened;" and (3) "high
intensity lighting not shielded." On November 2, 2020, the Zoning Enforcement
Officer issued a violation notice update stating, "[t]he condition [was] corrected
satisfactorily."
On November 28, 2020, plaintiffs filed an action "in [l]ieu of [p]rerogative
[w]rits and for other relief" against the Borough Defendants and Sitescapes. On
October 18, 2021, plaintiffs filed an amended complaint. As to the Borough
Defendants, plaintiffs alleged: (1) improperly expanded non-conforming use of
the Property (count one); (2) the Borough is required to enforce its own
ordinances under N.J.S.A. 40:55D-18 (count two); (3) the Board declining to
rule on their appeal and application was improper (count three); (4) civil action
A-3086-23 13 for deprivation of rights (count four); and (5) writ of mandamus (count five).
As against all defendants, plaintiffs alleged: (1) public nuisance on land harming
neighbors (count six); and (2) private nuisance (count seven).
At his deposition, Vinegra testified Sitescapes' use of the Property is a
"preexisting non[-]conformity of a construction yard." He confirmed five
entities owned the Property prior to 2018 based on information "from an
environmental report" prepared by Peak Environmental in September 1998.
According to that report, all five prior owners used the Property as a construction
yard. "Outside of the report by Peak Environmental and [his] follow-up as to
dates of ownership with previous owners," he "look[ed] at historical
photographs in Google Earth" to confirm Sitescapes' use of the Property was a
preexisting non-conforming use.
Vinegra "investigated the [P]roperty" and observed "rear yard storage"
and "some side yard storage" for "[c]onstruction material." He "took
photographs" which depicted "four-by-four posts," "concrete block," and
"storage racks." He saw "the same storage . . . in previous historical
photographs." According to Vinegra, Landover also "had construction material,
and they had racks of scaffolding, those types of things."
A-3086-23 14 At his deposition, Morocho testified he was aware the Property was a
commercial property when he purchased his adjoining property in 2015. When
Sitescapes arrived in 2016, he "started to see a lot of activity, because the trucks
that they own . . . [are] . . . big industrial-grade trucks, and . . . there was a lot
of noise that was produced by these trucks, back-up alarms." He recalled
Sitescapes applied for "a zoning permit to put a fence . . . right into the property
line," which "basically . . . remove[d] the buffer area" between his property and
the Property.
Morocho could not recall if Vinegra told him directly in 2019 that
Sitescapes' use of the Property was a preexisting non-conforming use. However,
he admitted he received an email from Vinegra stating Sitescapes was operating
lawfully. He agreed the historical research performed by Peak Environmental
showing the Property's previous uses from 1974 to 2020 was accurate, but
claimed Landover's use was not "construction" and "iron workers."
He testified Sitescapes' use of the Property was a nuisance because "the
dump trucks [it] uses are large, commercial trucks. The noise that they
create . . . [is] very loud. They[ are] diesel-engine trucks, 40,000-pounds
capacity trucks. They are equipped with back-up alarms. The noise . . . far
exceeds . . . normal decibel levels for a residential neighborhood." "And also
A-3086-23 15 the use of power washing machines, power washing [its] equipment all the
time. . . . create[s] a tremendous noise. . . . [The] trucks coming into the
[P]roperty fully loaded . . . shakes [plaintiffs' house] when they come in."
Morocho conceded he "does[ not] have a specific decibel reading" of the trucks.
Morocho testified he filed the appeal with the Board because he "want[ed]
an interpretation from the [Board] to tell [him] if . . . the resolution is valid, or
it[ is] not valid. And . . . [he] think[s] that[ is] when the [B]oard failed to just
to listen to [him] . . . and tell [him], . . . [whether] the resolution is valid, or it[
is] invalid." He conceded he is "essentially . . . appealing [Vinegra's]
determination that [Sitescapes' use] is a non[-]conforming preexisting use"
because it "had to go before the [B]oard and explain on paper what
exact[] . . . type of business they were going to be running from the site." Thus,
Morocho's "two goals [with his appeal was an] interpretation of the 2004
[R]esolution and to overturn the decision . . . Vinegra made that Site[s]capes is
not in violation and operating lawfully as a non[-]conforming preexisting use."
Jeffrey Gabriel, the owner of Sitescapes, testified that the "Union County
Board of Health" conducted a "noise visit" at the Property. "They tested
[Sitescapes'] . . . vehicles and machinery in [their] daily operations" and
"[s]pent a few hours at the [P]roperty and they passed."
A-3086-23 16 II.
After the completion of discovery, the parties filed cross-motions for
summary judgment. On April 19, 2024, the judge heard oral argument.
Plaintiffs' counsel argued "[t]he real question here . . . is whether or not the
continued use of this [P]roperty . . . exceeds its use as it was prior to the
ordinance making it a non-permitted use." "Plaintiffs are challenging the
intensity of the use of the [P]roperty and whether or not it exceeds the
preexisting use that it is." He conceded the zoning officer determined "in 2018,
that this [P]roperty is a preexisting non-conforming use."
On April 23, the judge entered orders denying plaintiffs' motion and
granting defendants' motions, supported by a written opinion. The judge
dismissed counts six, alleging public nuisance, and seven, alleging private
nuisance, against the Borough Defendants because plaintiffs failed to serve a
timely notice of tort claim as required by the New Jersey Tort Claims Act (TCA),
N.J.S.A. 59:8-1 to -11.
The judge determined count two alleging "failure to enforce an ordinance
in violation of N.J.S.A. 40:55D-18," was precluded by N.J.S.A. 59:2-4, which
provides "[a] public entity is not liable for any injury caused by . . . failing to
A-3086-23 17 enforce any law." She also found, "the record [was] devoid of information
establishing that the [Borough] [D]efendants failed to enforce" an ordinance.
The judge dismissed counts one, alleging Sitescapes improperly expanded
the non-conforming use of the property; three, alleging that the Board
improperly declined to rule on plaintiffs' appeal and application; and five,
seeking a writ of mandamus, because plaintiffs failed to file their action in lieu
of prerogative writs within forty-five "days after the accrual of the right to
review, hearing[,] or relief claimed" as required by Rule 4:69-6(a). She rejected
plaintiffs' contention that the forty-five-day time bar should be relaxed pursuant
to Rule 4:69-6(c). The judge found the case did not involve "an important and
novel constitutional question; ex parte determination of [a] legal question by
administrative officials; or important public rather than private interests."
The judge nevertheless addressed the merits of plaintiffs' claims and
determined "Site[s]capes use of the Property is not an improper expansion of a
non-conforming use." She found "Vinegra did a proper investigation into
determining whether . . . Site[s]capes use of the Property was a conforming
use." The judge determined
Vinegra relied on the [Peak Environmental] [r]eport in which the authors . . . obtained land use records from the [Borough]. Within the records, it stated that the prior uses of the Property were
A-3086-23 18 landscaping/construction yard; construction yard/mason; construction yard/roofing; construction yard/street sweeping; construction yard/iron workers; and construction yard/landscaper. Additionally, . . . Vinegra reviewed historical photographs to see what was stored on the Property in the past and how the previous owners used it; visited the Property to observe . . . Site[s]capes' use of the Property; and spoke with the prior owners on the previous use of the Property. [Borough] Ordinance 106-123 states that business hours must be closed between 12:00 [a.m.] and 5:00 [a.m.], here plaintiffs argue that . . . Site[s]capes start[s] to use the Property at 5:30 [a.m.]. . . . Site[s]capes' use of the Property does not violate the Ordinance.
The judge concluded "the record is devoid of any information showing
that . . . Site[s]capes['] use of the Property is substantially different than the
prior uses of the Property."
The judge also dismissed count four, alleging a violation of the New
Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, because plaintiffs did "not
provide[] sufficient evidence to show that their substantive rights were
violated." She found "[t]here has been no evidence provided that shows that
[the Borough Defendants] declined to hear plaintiffs' application because of
their race, national origin, age, and disability." The judge did "not find that the
[Borough] [D]efendants' actions 'shock the conscience.'"
A-3086-23 19 The judge concluded plaintiffs' reliance on Harz v. Borough of Spring
Lake, 234 N.J. 317 (2018), was misplaced because in that case "the plaintiff
timely filed an application to appeal the issuance of the zoning permit, while in
this matter plaintiffs failed to timely file an appeal." In addition, the Board
did not simply decline to hear plaintiffs' application without conducting a hearing; rather, they provided [plaintiffs' attorney] an opportunity to speak in front of the Board and argue why plaintiffs' application should be heard. Additionally, [plaintiffs' attorney] was able to rebut comments and questions made by the Board.
The judge rejected plaintiffs' claim that the Borough's October 14, 2020
resolution denying their appeal and application was arbitrary, capricious, or
unreasonable. She found the Board correctly determined plaintiffs' appeal
pursuant to N.J.S.A. 40:55D-70(a) was untimely because it was not filed within
twenty days of Vinegra's determination that Sitescapes did not substantially
change or expand the non-conforming use of the Property.
Specifically, the judge found "[u]nder N.J.S.A. 40:55D-72, appeals to the
[B]oard may be taken by an interested party who is affected by a decision of an
administrative officer within twenty days of the decision" and "the time for
notice of the appeal begins to run when the interested party knew or should have
known" of the decision. The judge determined Vinegra "had an on-site meeting
with plaintiffs' former counsel in the summer of 2019 and informed
A-3086-23 20 both . . . Morocho and his counsel of . . . Vinegra's findings" and "had numerous
conversations with . . . Morocho and counsel . . . about . . . Morocho's concerns
in 2019." Based on that, the judge found "plaintiffs either knew or should have
known of the pre[]existing non[-]conforming use [decision] issued to []
Site[s]capes between late 2018 and early 2019" and their "appeal in January
2020 was well past the deadline to appeal pursuant to N.J.S.A. 40:55D-72."
The judge rejected plaintiffs' claim that their application sought the
interpretation of a zoning map or ordinance pursuant to N.J.S.A. 40:55D-70(b).
She found "[t]he letters sent on December 5, 2019 and January 7, 2020, d[id]
not request [the] interpretation of [an] [o]rdinance." She found "[t]he record is
clear that plaintiff[s] [were] appealing the determination that . . . Site[s]capes
use of the Property was a nonconforming use." "Absent from these letters is
plaintiffs' request for an interpretation" of a zoning map or ordinance.
The judge determined "plaintiffs are unable to establish that the Board
acted in an arbitrary and capricious fashion by not hearing [their]" appeal and
application. "There [was] sufficient evidence that establishes that the Board's
decision to deny plaintiff's [appeal and] application was based on due
consideration."
A-3086-23 21 The judge rejected plaintiffs' demand for a writ of mandamus because
"plaintiff[s] . . . failed to establish that there was a clear violation of [a Borough]
[o]rdinance and a failure to take action by the [Borough] [D]efendants."
The judge determined plaintiffs' public and private nuisance claims
against the Borough Defendants failed as a matter of law because there "has
been no allegations asserted against the [Borough] [D]efendants that they own
the . . . [P]roperty" and "plaintiff[s] . . . failed to properly file a notice of tort
claim." She also determined plaintiffs' public nuisance claim failed against all
defendants because plaintiffs "have not provided any evidence showing that
plaintiffs are suffering a harm different from that suffered by other members of
the public."
Finally, the judge determined plaintiffs "failed to establish
that . . . Site[s]capes['] use of the Property constitute[s] a private nuisance." She
found:
the record is devoid of any information establishing the dates and times when the alleged nuisance would occur or the frequency [or] magnitude of the alleged nuisance. Plaintiffs have provided photographs of . . . Site[s]capes' use of the [P]roperty, which depicts the trucks and storage on the Property; however [the] photographs have not been authenticated by plaintiffs. Plaintiffs have complained that the noise of the trucks [is] loud; however, plaintiffs have provided no decibel reading as to the noise[.] . . . Conversely, [Sitescapes'
A-3086-23 22 representative] testified that the Union County Board of Health tested the noise levels on the Property and . . . Site[s]capes passed. The only evidence plaintiffs have presented . . . regarding their private nuisance claim is . . . Morocho's own complaints; however, without any evidence to support such complaints, no reasonable fact finder can conclude that . . . Site[s]capes' use of the Property constituted a private nuisance.
III.
On appeal, plaintiffs argue they "have standing to bring this suit."
Specifically, they contend their claim pursuant to N.J.S.A. 40:55D-18 is not an
"action in lieu of prerogative writs tried on the record below" or "a demand for
damages under the" TCA. They argue the judge improperly dismissed their
private nuisance claim because it "was not against a public entity." Plaintiffs
contend their nuisance claim is subject to the "continuing tort doctrine" and the
judge "erroneously dismissed [their] claims 'with prejudice' without addressing
the date [on] which the statute of limitations commenced."
Plaintiffs argue the judge improperly determined their action in lieu of
prerogative writs was untimely because they "challenge the present use of the
Property, and whether or not it has been illegally intensified since the Zoning
Officer's issuance of the 2018 Zoning Certificate/Permit." In the alternative,
they argue the judge "should have granted [plaintiffs] an enlargement of time"
A-3086-23 23 pursuant to Rule 4:69-6(c) "to determine whether there was an incorrect and/or
illegal administrative determination of a zoning officer without a proper
investigation into the preexisting non[-]conforming use." They also argue
"[m]uch like the 'continuing tort doctrine[,]' the need to determine actual dates
of actionable claims renders any decision by the [judge] as to the applicability
of [the] statute of limitations moot."
Plaintiffs next contend the Board's October 14, 2020 resolution was
arbitrary, capricious, and unreasonable because they "were not challenging the
2018 or 2019 'determinations' of the Zoning Officer." Rather, they "were
challenging the inaction of the Zoning Officer" and the "Board failed to grasp
what exactly was being appealed." Plaintiffs argue the judge "[w]rongfully
[d]etermined Site[s]capes . . . [d]id not [i]llegally [e]xpand the [p]reexisting
[n]on[-]conforming [u]se of the Property." They contend "there is, at the very
least, a triable issue of fact."
Plaintiffs contend the judge improperly dismissed their CRA claim
because they "reasonably expected to have the Borough
[Defendants] . . . exercise [their] duty to properly act to enforce the [o]rdinances
to protect [plaintiffs'] substantive due process and property rights" and "at the
very least, hear the merits of their [a]pplication." Plaintiffs argue the judge
A-3086-23 24 improperly denied their request for a writ of mandamus because they " have a
clear right to the relief sought" and the Borough Defendants "are under a clear
and definite duty to act." Lastly, plaintiffs contend the judge erred when she
failed to find that genuine issues of material fact exist related to Sitescapes'
alleged nuisance on the Property.
IV.
Our review of a trial court's grant or denial of a motion for summary
judgment is de novo. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). Like the trial
court, we 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. "By its plain language, Rule 4:46-2
dictates that a court should deny a summary judgment motion only where [a]
party opposing the motion has come forward with evidence that creates a
'genuine issue as to any material fact challenged.'" Id. at 529 (emphasis
omitted).
Based on our de novo review, we are convinced the judge properly denied
plaintiffs' motion for summary judgment and granted defendants' motions. The
judge correctly determined plaintiffs' action in lieu of prerogative writs was not
A-3086-23 25 timely filed. Rule 4:69-6(a) provides "[n]o action in lieu of prerogative writs
shall be commenced later than [forty-five] days after the accrual of the right to
the review, hearing[,] or relief claimed." The Rule allows for the enlargement
of the period of time provided in paragraph (a) "where it is manifest that the
interest of justice so requires." R. 4:69-6(c). Such an extension is appropriate
only if the court finds: "(1) important and novel constitutional questions; (2)
informal or ex parte determinations of legal questions by administrative
officials; and (3) important public rather than private interests which require
adjudication or clarification." Reilly v. Brice, 109 N.J. 555, 558 (1988)
(emphasis omitted).
Plaintiffs' claims in counts one, three, and five challenge the Borough
Defendant's April 19, 2018 determination that Sitescapes' use of the Property
was permitted as a preexisting non-conforming use. As the judge properly
determined, plaintiffs were aware of that decision at least as early as 2019 when
Vinegra met with Morocho and his prior counsel. Plaintiffs action in lieu of
prerogative writs was filed on November 28, 2020, long after the expiration of
the forty-five-day limitations period. We are satisfied the judge appropriately
exercised her discretion to decline to extend that period under the facts of this
case.
A-3086-23 26 The judge correctly dismissed the public and private nuisance claims
against the Borough Defendants for failure to file a timely notice of tort claim.
Tort claims, including nuisance claims, against public entities are governed by
the TCA. Posey v. Bordentown Sewerage Auth., 171 N.J. 172, 181 (2002). A
party has ninety days from the accrual of a claim to file notice of a claim against
a public entity. N.J.S.A. 59:8-8(a). Here, plaintiffs were aware of the alleged
nuisance at the Property no later than 2019. They never served a notice of tort
claim as required by the TCA. Accordingly, their purported nuisance claims
against the Borough Defendants are precluded.
We are convinced the judge properly dismissed count two of plaintiffs'
amended complaint alleging the Borough Defendants "failed to enforce" a
Borough ordinance "under N.J.S.A. 40:55D-18." That statute provides that a
"governing body of a municipality shall enforce . . . any ordinance" if "any
building, structure[,]or land is used in violation of . . . any ordinance." N.J.S.A.
40:55D-18. Here, plaintiffs contend the Borough Defendants failed to enforce
Borough Ordinance § 106-122(B) (the Ordinance), which provides "[n]o
existing use, structure[,] or premises devoted to a non[-]conforming use shall be
enlarged, extended, reconstructed, substituted[,] or structurally altered, unless it
is changed to a conforming use."
A-3086-23 27 We are persuaded the judge correctly determined the Borough Defendants
have not failed to enforce the Ordinance. Rather, the Borough Defendants
determined that Sitescapes' use of the Property is a permitted non-conforming
use and Sitescapes is not violating the Ordinance. Plaintiffs' claim is based not
on the Borough Defendants' failure to enforce the Ordinance, but on their
disagreement with the Borough Defendants' determination regarding Sitescapes'
use of the Property. The Borough Defendants are enforcing the Ordinance; they
are just not enforcing it the way plaintiffs want them to.
Plaintiffs' claims under the CRA lack merit for the same reasons. The
judge properly concluded the Borough Defendants have not deprived plaintiffs
of a substantive right. There is no basis to find they "intentionally" failed to
"exercise proper oversight over the Property" or "enforce [the] Ordinance."
Plaintiffs' claim that the Board failed to hear their appeal and application is
incorrect. The Board heard the matter at a public meeting and determined the
appeal was untimely and the "application" for an interpretation of a "zoning map
or ordinance" lacked merit.
We are satisfied the judge correctly determined the Board's October 14,
2020 resolution denying plaintiffs' appeal and application was not arbitrary,
capricious, or unreasonable. When considering an appeal from an action taken
A-3086-23 28 by a planning board, a reviewing court must determine whether the board's
decision was "arbitrary, capricious[,] or unreasonable." Fallone Props., L.L.C.
v. Bethlehem Twp. Plan. Bd., 369 N.J. Super. 552, 560 (App. Div. 2004). A
planning board's actions are presumed to be valid and planning boards are given
"'wide latitude in the exercise of the delegated discretion.'" Burbridge v.
Governing Body of Twp. of Mine Hill, 117 N.J. 376, 385 (1990) (quoting Medici
v. BPR Co., 107 N.J. 1, 23 (1987)). "A board's resolution of factual issues must
stand if supported by sufficient credible evidence in the record." Tr. Co. of N.J.
v. Plan. Bd. of Borough of Freehold, 244 N.J. Super. 553, 570 (App. Div. 1990)
(citation omitted).
Pursuant to N.J.S.A. 40:55D-70, the powers of a zoning board include the
authority to:
a. [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;
b. [h]ear and decide requests for interpretation of the zoning map or ordinance or for decisions upon other special questions upon which such board is authorized to pass by any zoning or official map ordinance, in accordance with this act[.]
A-3086-23 29 Such an appeal must be brought to the board of adjustment within twenty days
of "the date an interested party knows or should know of the action of an
administrative officer." Sitkowski v. Zoning Bd. of Adjustment of Borough of
Lavallette, 238 N.J. Super. 255, 260 (App. Div. 1990); see also N.J.S.A. 40:55D-
72. The purpose of the time limit is to "insulate the recipient of a building permit
or other favorable disposition from the threat of unrestrained future challenge.
It was intended to provide a degree of assurance that the recipient could rely on
the decision of the administrative officer." Ibid.
As the judge found, the Board's decision to deny plaintiffs' appeal
pursuant to N.J.S.A. 40:55D-70(a) as untimely was amply supported by the
record. Plaintiffs were aware of Vinegra's decision in 2019 at the latest and did
not file their appeal until January 23, 2020, long after the twenty-day period
prescribed by N.J.S.A. 40:55D-72. The Board's decision to deny plaintiffs'
application for an "interpretation" was not arbitrary, capricious, or unreasonable
because plaintiffs did not request an interpretation of a "zoning map or
ordinance."
A-3086-23 30 We are satisfied the judge correctly granted Sitescapes' motion for
summary judgment on plaintiffs' private nuisance claim. 1 "The essence of a
private nuisance is an unreasonable interference with the use and enjoyment of
land." Sans v. Ramsey Golf & Country Club, Inc., 29 N.J. 438, 448 (1959). In
evaluating whether there is a private nuisance, the court must weigh "[t]he utility
of the defendant's conduct . . . against the quantum of harm to the plaintiff" in
order to determine "whether the annoyance or disturbance arises from an
unreasonable use of the neighbor's land or operation of [their] business." Id. at
449 (emphasis omitted). "The question is not simply whether a person is
annoyed or disturbed, but whether the annoyance or disturbance arises from an
unreasonable use of the neighbor's land or . . . business." Ibid.
Here, the judge found plaintiffs failed to set forth evidence sufficient for
a reasonable jury to find Sitescapes created a private nuisance. Plaintiffs did
not present any expert testimony or other competent evidence to establish the
noise levels at the Property and did not demonstrate Sitescapes was violating
any noise ordinance or ordinance establishing the permitted hours of operation.
1 Plaintiffs do not address their claim in count six that defendants created a "public nuisance." If an issue is not briefed, it is deemed waived. State v. Huang, 461 N.J. Super. 119, 125 (App. Div. 2018); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2025) ("It is, of course, clear that an issue not briefed is deemed waived."). A-3086-23 31 Moreover, the Borough Defendants determined Sitescapes is properly
operating as a commercial, non-conforming permitted use on the Property. As
the judge found, plaintiffs' private nuisance claim was based on their subjective
complaints about Sitescapes' permitted use of the Property. Based on our de
novo review, we are convinced the judge properly granted Sitescapes' motion
for summary judgment.
To the extent we have not specifically addressed any remaining
arguments, it is because they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-3086-23 32