NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1213-18T4
TIMOTHY J. VORHIES, SR.,
Plaintiff-Appellant,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF ROCKAWAY, RICHARD BATES and BATES FLOORS, LLC,
Defendants-Respondents. _______________________________
TOWNSHIP OF ROCKAWAY, RICHARD BATES, MICHAEL ANTONELLI, and BATES FLOORS, LLC,
Submitted June 4, 2020 – Decided September 8, 2020 Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket Nos. L-2278-17 and C-000018-17.
Garrity Graham Murphy Garofalo & Flinn, attorneys for appellant (Thomas D. Flinn, on the briefs).
Dimin Fierro, LLC, attorneys for respondent Board of Adjustment of the Township of Rockaway (William N. Dimin, on the brief).
Fein Such Kahn & Shepard PC, attorneys for respondents Richard Bates, Michael Antonelli, and Bates Floors, LLC (John M. Sydlar, on the brief).
PER CURIAM
Plaintiff Timothy J. Vorhies, Sr. appeals from: (1) an October 22, 2018
order of the Law Division dismissing his complaint in lieu of prerogative writ
challenging the issuance of a permit by defendant Board of Adjustment of
Rockaway Township (Board) and a related Chancery Division complaint with
which it was consolidated; and (2) an October 5, 2018 order lifting restraints on
the construction of a garage authorized by the permit. We affirm.
I.
The following facts are derived from the record. Plaintiff resides in
defendant Rockaway Township (township) next to a parcel (the property) owned
A-1213-18T4 2 by defendants Richard Bates and Michael Antonelli, who are principals of
defendant Bates Floors, LLC (collectively "defendants").
The property is in the township's R-88 zone, which permits single-family
dwellings, golf courses, plant material nurseries, parks, greenhouses,
agricultural farming, and truck gardening, as well as accessory uses and
structures that "are customarily incidental and subordinate to a permitted
principal use." The zone does not permit commercial uses. On May 26, 2016,
defendants filed a permit application to the Board to construct a garage on the
property.
On June 13, 2016, plaintiff contacted township officials to inquire about
large amounts of soil disturbance and the installation of a commercial dumpster
on the property. He filed similar complaints several times over the following
months. The township's responses were not satisfactory to plaintiff. On
November 3, 2016, the Board issued defendant a permit to construct the garage.
On December 22, 2016, plaintiff's counsel wrote to the township mayor
following up on the complaints and construction activity on the property. On
January 9, 2017, the township attorney wrote to plaintiff's counsel informing her
that the Board issued a permit to construct the garage on November 3, 2016.
The township provided a copy of the permit to plaintiff's counsel on January 13,
A-1213-18T4 3 2017. Plaintiff's counsel thereafter sent a series of letters to the township
contending the permit was not sufficient for construction of the garage because
use and bulk variances were required for the project.
On March 6, 2017, plaintiff filed a verified complaint and order to show
cause in the Chancery Division seeking to restrain and enjoin defendants from
further construction, arguing a site plan, bulk variance, and use variance were
required for construction of the garage. The complaint also alleged the township
and its employees engaged in a civil conspiracy with the other defendants to
subvert the township's zoning ordinances and regulations, depriving plaintiff of
the use of his property and causing him emotional and physical harm. Finally,
plaintiff alleged the township and its employees acted under color of law to
infringe on his substantive and procedural due process rights.
On March 31, 2017, the trial court, with the consent of the parties, issued
an order dismissing the complaint without prejudice to permit plaintiff to
exhaust his administrative remedies before the Board. The court ordered that
"[w]ithin 20 days, plaintiff shall apply for review by [the Board], which shall
'exercise its statutory authority to review and pass upon the challenged decisions
of local land use officers.'" The court also enjoined defendants from
construction of the garage until the Board resolved plaintiff's claims.
A-1213-18T4 4 On April 20, 2017, plaintiff filed an appeal of the permit with the Board.
Defendants argued the appeal was untimely because it was filed after the twenty-
day appeal period established in N.J.S.A. 40:55D-72(a). On September 5, 2017,
the Board dismissed the appeal, concluding it was filed more than twenty days
after plaintiff became aware of the issuance of the permit.
Plaintiff thereafter reopened the Chancery Division matter. In addition,
on October 20, 2017, plaintiff filed a complaint in lieu of prerogative writ in the
Law Division against defendants and the Board. The complaint alleged the
Board's dismissal of his appeal was arbitrary, capricious and unreasonable.
Pa48. The two complaints were consolidated, and defendants and the Board
moved for their dismissal.
On October 5, 2017, Judge Robert J. Brennan issued a comprehensive
and well-reasoned oral opinion granting the motions to dismiss. Judge Brennan
rejected the argument that his March 31, 2017 order compelled the Board to
consider plaintiff's challenge to the permit, even if statutorily time barred. The
court applied well-established precedent that the twenty-day time period in
N.J.S.A. 40:55D-72(a) begins to run when the "interested person knew or should
have known of the permit[']s issuance." Judge Brennan found sufficient support
in the record for the Board's determination that plaintiff knew of the issuance of
A-1213-18T4 5 the permit more than twenty days prior to the filing of his appeal. The judge
found that plaintiff was made aware of the permit at the latest on January 13,
2017, when a copy of it was produced by the township. The court held that
twenty days from January 13, 2017, was February 2, 2017, and that plaintiff
failed to file an appeal with the Board by that date.
Judge Brennan also rejected plaintiff's arguments that the Board should
be estopped from applying the statutory filing deadline and that defendants
waived the filing deadline by not appealing the trial court's March 31, 2017
order. Finally, the court declined to extend the statutory filing deadline, finding
township officials did not frustrate plaintiff's ability to challenge the permit.
The parties did not raise, and the court's opinion did not address, the conspiracy
and color of law claims in the Chancery Division complaint.
On October 5, 2018, the trial court entered an order dissolving restraints
on defendants' construction of the garage and dismissing the Chancery Division
complaint as moot. On October 22, 2018, the trial court entered an order
Free access — add to your briefcase to read the full text and ask questions with AI
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-1213-18T4
TIMOTHY J. VORHIES, SR.,
Plaintiff-Appellant,
v.
BOARD OF ADJUSTMENT OF THE TOWNSHIP OF ROCKAWAY, RICHARD BATES and BATES FLOORS, LLC,
Defendants-Respondents. _______________________________
TOWNSHIP OF ROCKAWAY, RICHARD BATES, MICHAEL ANTONELLI, and BATES FLOORS, LLC,
Submitted June 4, 2020 – Decided September 8, 2020 Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket Nos. L-2278-17 and C-000018-17.
Garrity Graham Murphy Garofalo & Flinn, attorneys for appellant (Thomas D. Flinn, on the briefs).
Dimin Fierro, LLC, attorneys for respondent Board of Adjustment of the Township of Rockaway (William N. Dimin, on the brief).
Fein Such Kahn & Shepard PC, attorneys for respondents Richard Bates, Michael Antonelli, and Bates Floors, LLC (John M. Sydlar, on the brief).
PER CURIAM
Plaintiff Timothy J. Vorhies, Sr. appeals from: (1) an October 22, 2018
order of the Law Division dismissing his complaint in lieu of prerogative writ
challenging the issuance of a permit by defendant Board of Adjustment of
Rockaway Township (Board) and a related Chancery Division complaint with
which it was consolidated; and (2) an October 5, 2018 order lifting restraints on
the construction of a garage authorized by the permit. We affirm.
I.
The following facts are derived from the record. Plaintiff resides in
defendant Rockaway Township (township) next to a parcel (the property) owned
A-1213-18T4 2 by defendants Richard Bates and Michael Antonelli, who are principals of
defendant Bates Floors, LLC (collectively "defendants").
The property is in the township's R-88 zone, which permits single-family
dwellings, golf courses, plant material nurseries, parks, greenhouses,
agricultural farming, and truck gardening, as well as accessory uses and
structures that "are customarily incidental and subordinate to a permitted
principal use." The zone does not permit commercial uses. On May 26, 2016,
defendants filed a permit application to the Board to construct a garage on the
property.
On June 13, 2016, plaintiff contacted township officials to inquire about
large amounts of soil disturbance and the installation of a commercial dumpster
on the property. He filed similar complaints several times over the following
months. The township's responses were not satisfactory to plaintiff. On
November 3, 2016, the Board issued defendant a permit to construct the garage.
On December 22, 2016, plaintiff's counsel wrote to the township mayor
following up on the complaints and construction activity on the property. On
January 9, 2017, the township attorney wrote to plaintiff's counsel informing her
that the Board issued a permit to construct the garage on November 3, 2016.
The township provided a copy of the permit to plaintiff's counsel on January 13,
A-1213-18T4 3 2017. Plaintiff's counsel thereafter sent a series of letters to the township
contending the permit was not sufficient for construction of the garage because
use and bulk variances were required for the project.
On March 6, 2017, plaintiff filed a verified complaint and order to show
cause in the Chancery Division seeking to restrain and enjoin defendants from
further construction, arguing a site plan, bulk variance, and use variance were
required for construction of the garage. The complaint also alleged the township
and its employees engaged in a civil conspiracy with the other defendants to
subvert the township's zoning ordinances and regulations, depriving plaintiff of
the use of his property and causing him emotional and physical harm. Finally,
plaintiff alleged the township and its employees acted under color of law to
infringe on his substantive and procedural due process rights.
On March 31, 2017, the trial court, with the consent of the parties, issued
an order dismissing the complaint without prejudice to permit plaintiff to
exhaust his administrative remedies before the Board. The court ordered that
"[w]ithin 20 days, plaintiff shall apply for review by [the Board], which shall
'exercise its statutory authority to review and pass upon the challenged decisions
of local land use officers.'" The court also enjoined defendants from
construction of the garage until the Board resolved plaintiff's claims.
A-1213-18T4 4 On April 20, 2017, plaintiff filed an appeal of the permit with the Board.
Defendants argued the appeal was untimely because it was filed after the twenty-
day appeal period established in N.J.S.A. 40:55D-72(a). On September 5, 2017,
the Board dismissed the appeal, concluding it was filed more than twenty days
after plaintiff became aware of the issuance of the permit.
Plaintiff thereafter reopened the Chancery Division matter. In addition,
on October 20, 2017, plaintiff filed a complaint in lieu of prerogative writ in the
Law Division against defendants and the Board. The complaint alleged the
Board's dismissal of his appeal was arbitrary, capricious and unreasonable.
Pa48. The two complaints were consolidated, and defendants and the Board
moved for their dismissal.
On October 5, 2017, Judge Robert J. Brennan issued a comprehensive
and well-reasoned oral opinion granting the motions to dismiss. Judge Brennan
rejected the argument that his March 31, 2017 order compelled the Board to
consider plaintiff's challenge to the permit, even if statutorily time barred. The
court applied well-established precedent that the twenty-day time period in
N.J.S.A. 40:55D-72(a) begins to run when the "interested person knew or should
have known of the permit[']s issuance." Judge Brennan found sufficient support
in the record for the Board's determination that plaintiff knew of the issuance of
A-1213-18T4 5 the permit more than twenty days prior to the filing of his appeal. The judge
found that plaintiff was made aware of the permit at the latest on January 13,
2017, when a copy of it was produced by the township. The court held that
twenty days from January 13, 2017, was February 2, 2017, and that plaintiff
failed to file an appeal with the Board by that date.
Judge Brennan also rejected plaintiff's arguments that the Board should
be estopped from applying the statutory filing deadline and that defendants
waived the filing deadline by not appealing the trial court's March 31, 2017
order. Finally, the court declined to extend the statutory filing deadline, finding
township officials did not frustrate plaintiff's ability to challenge the permit.
The parties did not raise, and the court's opinion did not address, the conspiracy
and color of law claims in the Chancery Division complaint.
On October 5, 2018, the trial court entered an order dissolving restraints
on defendants' construction of the garage and dismissing the Chancery Division
complaint as moot. On October 22, 2018, the trial court entered an order
dismissing both the Law Division complaint and the Chancery Division
complaint.
This appeal follows. Plaintiff makes the following arguments.
A-1213-18T4 6 POINT I
THE COURT BELOW APPLIED THE WRONG STANDARD OF REVIEW.
POINT II
THE DEFENDANT ZONING BOARD ERRED IN ITS CONCLUSION THAT PLAINTIFF'S APPEAL WAS BARRED BY N.J.S.A. 40:55D-72(a).
POINT III
THE REQUIREMENT OF R. 4:69-5 OUGHT TO HAVE BEEN WAIVED.
POINT IV
GARROU AND MULLEN REQUIRE REVERSAL.
POINT V
THE ORDERS APPEALED DISMISSED COUNTS FOUR AND FIVE OF THE VERIFIED COMPLAINT WITHOUT THE BENEFIT OF DISCOVERY, HEARING, OR ANY CONSIDERATION OF THE VIABILITY OF THOSE CLAIMS.
II.
The scope of the Board's authority and jurisdiction are questions of law
subject to de novo review. TWC Realty P'ship v. Zoning Bd. of Adjustment,
315 N.J. Super. 205, 211 (Law Div. 1998), aff'd, 21 N.J. Super. 216 (App. Div.
A-1213-18T4 7 1999). The Board's resolution of factual issues must stand if supported by
sufficient credible evidence. Rowatti v. Gonchar, 101 N.J. 46, 51 (1985).
N.J.S.A. 40:55D-70(a) provides that zoning boards of adjustment "shall
have the power 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 . . . ."
Appeals to the board of adjustment may be taken by any interested party 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. Such appeal shall be taken within 20 days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal. . . .
[N.J.S.A. 40:55D-72(a).]
"An interested party clearly includes a neighbor who is affected by the grant of
a building permit that will result in a structure [on adjacent property] that
violates the zoning ordinance." Harz v. Borough of Spring Lake, 234 N.J. 317,
322 (2018) (alteration in original) (internal quotations omitted).
The twenty-day period to appeal to the Board "was intended to provide a
degree of assurance that the recipient could rely on the decision of the
administrative officer" and "was clearly designed to insulate the recipient of a
A-1213-18T4 8 building permit or other favorable disposition from the threat of unrestrained
future challenge." Sitkowski v. Zoning Bd. of Adjustment, 238 N.J. Super. 255,
260 (App. Div. 1990). "However, because no provision requires the
administrative officer to notify a nearby property owner about the issuance of a
zoning permit, the property owner may not know of the official action until well
beyond the twenty-day limitations period." Harz, 234 N.J. at 322. "In that
circumstance, courts have taken the sensible position that 'the time for appeal
begins to run from the date an interested person knew or should have known of
the permit's issuance.'" Ibid. (quoting Trenkemp v. Twp. of Burlington, 170 N.J.
Super. 251, 268 (Law Div. 1979)). The Board's "function is to make the factual
determination as to when an appellant knew or should have known of a building
permit's issuance . . . ." Trenkemp, 170 N.J. Super. at 270.
Having carefully reviewed the record in light of these legal principles, we
agree with Judge Brennan's conclusion that there is sufficient support in the
record for the Board's determination that plaintiff's appeal was untimely. At the
latest, plaintiff was aware of the permit as of January 13, 2017, when his counsel
received a copy of the permit. Twenty days from January 13, 2017, was
February 2, 2017. Plaintiff filed his appeal with the Board on April 20, 2017,
more than two months later. Even if plaintiff is given the benefit of considering
A-1213-18T4 9 the March 6, 2017 filing date of his Chancery Division complaint as the date he
appealed the permit, his appeal was untimely.
We also reject plaintiff's argument that the trial court erred when it
dismissed the prerogative writ complaint to permit plaintiff to exhaust his
remedies before the Board. According to Rule 4:69-5, an action in lieu of
prerogative writ "shall not be maintainable as long as there is available a right
of review before an administrative agency which has not been exhausted." This
requirement exists unless "it is manifest that the interest of justice requires
otherwise . . . ." Ibid. Where administrative remedies have not been exhausted,
it is appropriate for a trial court to remand a prerogative writ complaint to a
municipal body to "exercise its statutory authority to review and pass upon the
challenged decisions of local land use officers." See 21st Century Amusements,
Inc. v. D'Alessandro, 257 N.J. Super. 320, 323 (App. Div. 1992) (citing N.J.S.A.
40:5D-72).1
We are not persuaded by plaintiff's argument that the holdings in Garrou
v. Teaneck Tryon Co., 11 N.J. 294 (1953), and Mullen v. Ippolito Corp., 428
1 We note that the March 31, 2017 order dismissing the Chancery Division complaint without prejudice was entered with plaintiff's consent. An order entered with the consent of the parties is ordinarily not appealable for the purpose of challenging its substantive provisions. See Winberry v. Salisbury, 5 N.J. 240, 255 (1950). A-1213-18T4 10 N.J. Super. 85 (App. Div. 2012), require reversal of the trial court orders. In
Garrou, the Court relaxed the prerogative writ exhaustion of administrative
remedies requirement where a party demonstrates: (1) there has been a clear
violation of a zoning ordinance; (2) a failure of appropriate action despite the
matter having been duly and sufficiently brought to the attention of local
officials charged with enforcing the zoning ordinance; and (3) the unavailability
of other adequate and realistic forms of relief. 11 N.J. at 302-04. Those factors
are not present here. While plaintiff may have brought his complaints to the
attention of the appropriate municipal officials, he had not demonstrated their
failure to take appropriate action or that he did not have available to him an
adequate form of relief. Township officials responded to plaintiff's inquiries
and produced a copy of the permit issued to defendants, which plaintiff did not
appeal in a timely fashion.
In Mullen, we held that the twenty-day period in N.J.S.A. 40:55D-72(a)
did not commence because the municipal official failed to take enforcement
action, displaying "a pattern of indifference" in the face repeated complaints that
a property owner was defying the municipal zoning ordinance. 428 N.J. Super.
at 103. Here, municipal officials reviewed and approved the construction of the
garage that was the subject to plaintiff's complaints.
A-1213-18T4 11 To the extent we have not specifically addressed any of plaintiff's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).2
Affirmed.
2 Plaintiff argues the trial court erred when it dismissed the counts of his Chancery Division complaint alleging civil conspiracy and deprivation of rights under the color of law. He did not, however, challenge the dismissal of those counts in the trial court. We, therefore, decline to address those arguments. Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2020); see also Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). A-1213-18T4 12