SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-1244-93T2
FREDERICK J. WATERS and
CAROL WATERS, t/a SHADY PINES
CAMP GROUND AND TRAILER PARK,
Plaintiffs-Respondents/
Cross-Appellants,
v.
TOWNSHIP OF GALLOWAY, a New
Jersey Municipal Corporation,
and GALLOWAY TOWNSHIP COUNCIL
AND UTILITIES DIVISION, a
Body Politic,
Defendants-Appellants/
Cross-Respondents.
_________________________________________________________________
Argued September 13, 1995 - Decided December
27, 1995
Before Judges Long, Muir, Jr., and Brochin.
On appeal from the Superior Court, Law
Division, Atlantic County.
Michael A. Pane argued the cause for
appellants/cross-respondents (Michael A. Pane,
attorney; Mr. Pane and Michael A. Pane, Jr.,
on the brief).
Christine M. Coté argued the cause for
respondents/cross-appellants (Cooper Perskie
April Niedelman Wagenheim & Levenson,
attorneys; Steven D. Scherzer and Ms. Coté, on
the brief).
The opinion of the court was delivered by
MUIR, JR., J.A.D.
This is an appeal from a $227,780 judgment entered against the
defendants. The proceedings giving rise to the appeal are
anomalous in that the trial court awarded damages without resolving
a primary liability issue and then apparently based the damage
award on a statute both parties agree is inapplicable.
In July 1989, plaintiffs filed a complaint in lieu of
prerogative writs seeking both an order to compel issuance of a
permit to construct a sanitary sewer system for their mobile home
park and damages caused by the delays created by the refusal of the
governing bodySee footnote 1 to issue the permit. Entitlement to proceed with
construction of the sanitary sewer system centered on plaintiffs'
need to secure site plan approval before proceeding with the
upgrading of the mobile home park, which was a nonconforming use.
In January 1990, the trial court, in a summary judgment setting,
without resolving the site plan approval issue, directed the
governing body to consider the permit application "based solely
upon . . . engineering concerns and standards [specified in sewer
ordinance]." In the course of its determination, the trial court
characterized the governing body's refusal to issue the permit as
"political demagoguery."
The need for site plan approval by the local Planning Board is
not the only zoning issue relevant to plaintiffs' claim of
entitlement to proceed with the upgrading of its nonconforming
mobile home park. Plaintiffs rely on a Township Board of
Adjustment resolution that determined they had a valid prior
nonconforming use, see N.J.S.A. 40:55D-68, to claim entitlement to
proceed with the improvements they proposed for the mobile home
park. The trial court ruled the Board of Adjustment's
determination immune from attack.
Notwithstanding the fact it had not resolved the need for site
plan approval, the trial court proceeded in June 1993 with a
damages only non-jury trial. The hearing resulted in the $227,780
judgment comprised of $177,780 in compensatory damages and $50,000
in attorney's fees. Not until it reached the issue of counsel
fees, however, did the court identify any actionable basis for its
damage award. At that point, the court stated:
To the extent that this would be regarded
as a Section 1983 of 42 USC cause of action,
there would be an entitlement to counsel fees
under
42 SC 1988. The provision I rely on
would be found in New Jersey Statutes 59:9-5.
We're dealing with what amounts to a tort
claim or tort action and as I alluded to
before in 59:9-5, there is judicial discretion
to award attorney's fees, . . . "in any action
brought against a public entity" . . . .
. . . .
So, 59:9-5 is the major legal reason on
which I base my conclusions. There is no real
common law on which to rely, other than,
perhaps, a malicious prosecution type of
analogy.
Thus, it would appear the trial court considered plaintiffs' cause
of action as one sounding in tort and covered by the Tort Claims
Act.
On appeal, defendants raise several challenges. They assert
trial court error in finding the Board of Adjustment's ruling
impregnable from attack; they argue the need for site plan approval
precluded a finding of liability; and they contend, since no notice
of claim was ever filed pursuant to the Tort Claims Act, N.J.S.A.
59:1-1 to 12-3, see N.J.S.A. 59:8-8, that Act could not serve as a
basis for any liability requiring a vacation of the $227,780
judgment.
Plaintiffs' appellate contentions disavow any entitlement to
rely on the Tort Claims Act; understandably so, given the failure
to file any notice of claim under the Act. See N.J.S.A. 59:8-3.
Instead, they contend the trial court's "political demagoguery"
statement, when viewed against the essentially uncontested facts,
supports a
42 U.S.C.A.
§1983 claim for denial of substantive due
process based on egregious governmental conduct. That conduct they
find in the governing body's refusal to issue a permit to construct
the sanitary sewer system for their mobile home park. They cradle
their entitlement to the permit in contentions that the applicable
ordinances required no site plan approval and that the Board of
Adjustment ruling afforded them protection to proceed with their
upgrading of the mobile home park.
The appeal, therefore, requires us to determine whether
plaintiffs presented sufficient proof of a cause of action for
substantive due process denial. It also requires us to rule on an
issue left unresolved by the trial court....the need for site plan
approval. And, in a more conventional context, it requires us to
rule on the impact the Township Board of Adjustment ruling had on
plaintiffs' denial of substantive due process claim.
We conclude plaintiffs failed to present prima facie proof of
a denial of substantive due process. Plaintiffs' claim required
proof they had complied with the sanitary sewer system ordinance
and all other applicable laws. They fell short of that proof.
They were not entitled to a final sewer permit until they applied
for preliminary site plan approval, which they never did. They
could not claim compensatory damages suffered as a result of the
delay in the issuance of the final sewer permit because there could
be no construction without final site plan approval. Moreover, we
conclude the Board of Adjustment ruling did not, as plaintiffs seem
to suggest, clothe them with the entitlement to proceed with sewer
or other improvements to the mobile home park. Accordingly, we
reverse and remand for entry of judgment in favor of the
defendants. By so ruling, we need not address plaintiffs' cross-claim on the insufficiency of the damages awarded.
The case had its genesis in March 1959 when plaintiffs' predecessors in title to the Shady Pines Camp Ground and Trailer Park, Grover and Doris Lambert, obtained subdivision approval for forty mobile home sites and one hundred campsites. The one hundred campsites are not relevant here. Both the Township Planning Board and governing body approved the subdivision.
The record evidence relevant to those approvals is sparse. Only a terse excerpt from governing body meeting minutes and a copy of the approved map are provided. The map appears as follows:
Thereafter, on July 31, 1961, according to the record, the
governing body enacted a zoning ordinance which prohibited "trailer
coach parks" within the Township. The ordinance defined trailer
coaches and trailer coach parks (the latter as a "plot of ground
upon which two or more trailer coaches occupied for dwelling . . .
are located"). Then under Article VI, entitled "GENERAL
REGULATIONS," the ordinance provided:
18. The following uses and activities
are specifically prohibited in any and all
zones in the Township of Galloway:
. . . .
b. Trailer coach parks.
There is no dispute this ordinance made the mobile home park a
nonconforming use.
Plaintiffs purchased Shady Pines in October 1985. They did so
intending to give it a "general face lifting."
They encountered a temporary setback. The Township Director
of Public Works questioned the legality of the forty lots serving
as a mobile home park based on the 1961 zoning ordinance amendment.
In an effort to resolve the issue, plaintiffs applied to the
Township Board of Adjustment in February 1986 for an interpretation
of the Township zoning ordinance to allow plaintiffs to continue
"operating the premises pursuant to a valid, preexisting and
nonconforming use." Plaintiffs made the application pursuant to
N.J.S.A. 40:55D-70b. At the time, however, the Board of Adjustment
had specific authority to issue, upon appropriate application,
certificates that a use or structure validly existed prior to the
ordinance making the use or structure nonconforming. See N.J.S.A.
40:55D-68 (L. 1985, c. 516, § 15, effective March 22, 1985).
At the Board of Adjustment hearing, the attorney for the
plaintiffs read a statement of "facts" into the record. After
noting the subdivision and registration of Shady Pines Mobile Home
Park with the Township Clerk, the fact statement represented:
The premises were originally equipped and
. . . are still equipped with separate
electric water hook-ups for each trailer lot
together with individual septic tanks for each
trailer. Since first beginning operation, the
premises have been continually used as a
trailer park although the number of trailers
located thereon and the length of time each
trailer has remained on the premises of course
varied, depending upon the demand for trailer
use at any particular time. This continuous
use of the premises as a trailer park is
evidenced further by representative quarterly
reports of tax payments made to Galloway
Township throughout the years in question and
attached collectively as Exhibit B. As an
example, the quarterly report for the quarter
ending September 30th, 1964 shows a tax paid
of $374.00 on sixteen trailers registered
during that quarter. The use of particular
lots during that period varied from between
two to thirteen weeks. The quarterly tax
report dated June 27th, '85 to the period of
March 31st, '85 to June 29th, '85 illustrates
$117.00 in tax paid for three trailers
registered in that quarter. In this case,
each of the registered trailers was present
for the full thirteen-week period.
Plaintiff Frederick Waters then swore to the truth of the facts.
Waters did not state how he had personal knowledge about the mobile
home park for the years prior to the 1985 purchase; and the Board
did not, to any degree, explore the basis for that represented
knowledge. Waters also represented that all forty lots were used
during the period 1959 to 1985 and that he intended to make all
forty lots permanent. He did not delineate the improvements he
planned for the mobile home park. The record contains the tax
payment records for certain lots from 1963 to 1984, but there is no
correlation between the subdivision lots and the tax lot numbers.
In the absence of any public participation or opposition, the
Board ruled plaintiffs' mobile home park a legal nonconforming use
"as defined by N.J.S. 40:55D-68." Given plaintiffs' intent to
upgrade the mobile home park and the fact they conceded site plan
approval was required, the Board in its March 20, 1986, memori-alizing resolution added:
[T]his interpretation shall not infer in any
manner that Applicants are not subject to
currently applicable statutes, ordinances and
regulations of the State of New Jersey, County
of Atlantic and Township of Galloway,
pertaining to the continued use of Applicants'
property as a mobile home park.
The latter paragraph makes it clear the Board did not make any
finding plaintiffs' proposed improvements were entitled to any
protected nonconforming use status.See footnote 2
Plaintiffs immediately went forward with plans for the upgrade
of the mobile home park. As Frederick Waters later testified, the
plans included a sanitary sewage disposal system tied into the
municipal system, rather than individual septics for each mobile
home lot; public rather than well water; underground television
cable service and telephone line service; sidewalks; driveways; a
"cul de sac" at the end with a park and construction of a new
gazebo; construction of porches and decks for mobile home lots; and
installation of sod, water sprinklers, and shrubbery for the lots.
Frederick Waters testified at the damages hearing that the
foregoing work had been done but did not articulate the dates on
which the work was done. He also did not state whether he sought
or secured building permits for any of the work done.
After receipt of the Board of Adjustment resolution,
plaintiffs engaged an engineer to design the sanitary sewage
collection system for tie-in to the municipal system. The design
included laterals, mains, and a sanitary sewage pumping station.
The Township Utilities Ordinance prescribes the format for a
property owner to secure municipal approval to construct sanitary
sewers. The ordinance sets a two-stage procedure: (1) preliminary
application and review; and (2) final application and review. Both
applications must be submitted to the governing body after approval
by the Township Engineer. The preliminary application and review
section of the ordinance provides:
The Township Planning Board will not grant
preliminary approval on any development or
subdivision prior to preliminary submission to
the [governing body]. However, [governing
body] formal approval is not required by the
Planning Board until the Planning Board's
final review phase.
The final application and review section provides:
The Township Planning Board will not grant
final approval on a subdivision or development
application prior to the receipt of a written
certification of final approval . . . from the
[governing body].
The crux of the ordinance provisions is that preliminary sanitary
sewer system construction approval has to precede preliminary
Planning Board approval, when required, and final sanitary sewer
system construction approval has to precede final Planning Board
approval, when required. The ordinance, however, anticipates
Planning Board approval where required. The Township land use
control ordinance provides for both preliminary and final site plan
approval in this instance, as we later note.
On October 25, 1988, the governing body, by resolution, gave
preliminary approval to plaintiffs' sanitary sewer system project.
The preliminary approval required satisfaction of items contained
in the Township Engineer's letter of review but was "[c]ontingent
upon approvals from all other agencies having jurisdiction." The
approvals from other agencies proved to be the fly in the ointment.
Initially, as they had before the Board of Adjustment,
plaintiffs conceded they needed site plan approval from the
Planning Board for upgrading their mobile home park. However,
plaintiffs later reversed that position. That change in position
occurred after a meeting of the Township governing body on
January 24, 1989. At that meeting, armed with the Township
Engineer's approval of the final mobile home sanitary sewer system
construction plans, plaintiffs applied for the final sanitary sewer
system construction permit. It was apparently the first notice to
the public of plaintiffs' intention to upgrade the mobile home park
and the first notice the governing body had of the plaintiffs'
intent to upgrade and operate a forty-lot mobile home park. It was
apparently also the first time the governing body became aware of
the Board of Adjustment's resolution. Both the Mayor and governing
body members expressed their concern for a mobile home development
that involved greater concentration of use than anticipated by
local land use regulations. When Frederick Waters explained the
Board of Adjustment had agreed that Shady Pines was a legal
nonconforming use, the Mayor replied:
[T]he council is, I guess, supreme council.
We rule the township and they tell us what
they want done, and right now, the council is
denying you to have sewer. That's the only
power we have. We have no power per se in the
zoning board. That's an autonomous board.
But the power we do have, sir, is the power to
say no to sewer, and when we say no to sewer,
. . . it may be impractical and impossible for
you to develop eight trailers on one acre of
property.
The Mayor further explained that plaintiffs' application for
final approval was being sent back to the Infrastructure Committee
[a Planning Board committee] "because the interpretation that they
received at the time was not the interpretation you were going to
put 40 units in there on a fulltime [sic] basis."
Thereafter, a letter from the Township attorney clarified the
governing body's position. The governing body saw site plan
approval, at least preliminary site plan approval, as a condition
precedent to final approval for the sanitary sewer system and
permission to construct it. It based its position on the "nature
and extent of the work [plaintiffs] intend[] to do at the site."
Even after the January 24, 1989, meeting, plaintiffs
maintained their willingness to apply for site plan approval. In
a letter dated March 15, 1989, plaintiffs' counsel, after
recognizing that at some point site plan approval had to be
acquired, stated:
I have no difficulty applying first to the
Planning Board [before pursuing final approval
of the sanitary sewer system].
Two weeks later, plaintiffs sailed off in the opposite direction. Relying on their interpretation of the Township land use ordinance, plaintiffs concluded no site plan approval was required. In taking that position and in filing the complaint in
this action approximately four months later, they eschewed the
opportunity for ordinance interpretation under N.J.S.A. 40:55D-70b.
The parties fired the first of several courtroom salvos when
each filed a motion for summary judgment directed at the validity
and enforceability of the Zoning Board's resolution declaring
plaintiffs had a nonconforming use for forty mobile home sites.
Plaintiffs also sought a remand to the governing body to require it
to review and render a decision on the sanitary sewer system
construction permit. The trial court found plaintiffs' salvo more
accurate.
As later embodied in an order dated January 12, 1990, the
court ruled: (1) the governing body, on remand, was required to
render its decision on issuance of the permit; (2) the Board of
Adjustment nonconforming use was valid and not subject to further
attack; (3) the failure to file the 1959 subdivision map (with the
county recording office) was irrelevant to the mobile home park's
nonconforming use status and the pending sanitary sewer system
construction application; (4) no abandonment of the forty mobile
home sites occurred; and (5) the intent to install sanitary sewer
lines did not constitute an expansion of a nonconforming use.
In its accompanying oral opinion, the court gave its
supporting rationale. It concluded: the Board of Adjustment
resolution was not subject to collateral attack "three years down
the road" and "the references to [site plan] approval in the
applicant's zoning board submission, as a matter of law, do not
rise to a level of fraud or misrepresentation." It also found the
Township governing body's conduct at the January 24, 1989, hearing
"one of the worst examples of political demagoguery that [it had
ever] seen." The court reserved the issues of site plan approval
and damages for a later date. The record presented on appeal
discloses it never resolved the former issue, although counsel for
the plaintiffs argued it did in his opening at the damages trial.
On a motion to enforce litigants' rights that followed the
order of January 12, 1990, the court dealt with the Township's
resistance to considering final approval of the sanitary sewer
system construction plan prior to site plan approval by the
Planning Board. Finding plaintiffs "deserving" "after diligent
endeavors to obtain the permit" but without reference to any
sanitary sewer system ordinance provisions, the court directed the
Township to resolve the sanitary sewer system construction permit
application prior to resolution of the need for site plan approval.
The governing body on March 13, 1990, by a split vote, acceded to
the court's directive. The governing body at that meeting
identified the procedure being followed as "precedent setting . . .
to give a prior approval for sewer prior to a planning board
approval." While the comment did not identify the nature of
Planning Board approval involved, preliminary or final, it suggests
the governing body concluded the absence of any Planning Board
approval went contrary to Township regulations.
With approval in hand, plaintiffs went ahead and constructed
the sanitary sewer lines, main, and pumping station for the
sanitary sewage disposal. They also constructed the planned
improvements previously noted.
On June 2, 3, and 4, 1993, the trial court conducted a damages
hearing. Despite the fact that the trial court had not ruled on
the need for site plan approval, plaintiffs' counsel opened by
telling the court:
You may also hear that Mr. Waters needed
site plan approval. Our response to that is
threefold. First of all, the Court already
made a ruling, site plan approval was not
required, it's in the Court orders, it's out
of the case. Secondly, Mr. Waters didn't need
site plan approval, everything he did was
proper. But most importantly, even if he did
need site plan approval, no one stopped him
from what he did. He constructed a cul-de-sac, no one stopped him. He repaired the
street, no one stopped him. And most
important of all, he started to put the
trailers in.
We note parenthetically waiver or equitable estoppel cannot be
relied upon by property owners to prevent a municipality from
enforcing the need for site plan approval if the owners proceed
with property development without required site plan approval.
See, e.g., Gruber v. Mayor of Raritan Tp.,
39 N.J. 1, 15 (1962);
Bridge v. Neptune Tp. Zoning Bd. of Adjustment,
233 N.J. Super. 587, 597 (App. Div. 1989).
Defense counsel neither refuted the allegation of the court's
having ruled on the site plan approval issue nor in any way
challenged the lack of a plenary hearing on the issue of liability.
Consequently, the record discloses little more than the trial
court's "political demagoguery" conclusion as grounds for liability
for the subsequently awarded damages.
During the course of the damages trial, plaintiff Frederick
Waters detailed the work done to "upgrade" the mobile home park so
as to make it amenable to sales of "state-of-the-art" mobile homes.
The trial court accepted the procedural status of the case
alleged by plaintiffs' counsel that only the issue of damages
remained. Perhaps through inadvertence due to the inordinate
three-year delay, the court opened its opinion on damages with the
statement, "[T]he liability issues having been previously dealt
with by motion practice and, essentially, [it didn't] have to
revisit liability . . . ." The court then proceeded to arrive at
the damages determination reflected by the judgment under appeal.
In the course of resolving the claim for counsel fees, the court,
as noted, relied upon N.J.S.A. 59:9-5 of the Tort Claims Act. The
appeal and cross-appeal followed.
Substantive due process has emerged as the concept utilized to rectify governmental actions that wrongfully deprive a person of life, liberty, or property. It has served as the grounds for recognizing 42 U.S.C.A. §1983 claims where plaintiffs have alleged governmental bodies refused to issue government-regulated permits for reasons unrelated to the merits of an application for such permits. See Lockary v. Kayfetz, 917 F.2d 1150, 1155-56 (9th Cir. 1990) (allegation of arbitrary and irrational refusal of government to allow water hookups to public water supply stated a cause of
action for a substantive due process violation); Bateson v. Geisse,
857 F.2d 1300, 1303 (9th Cir. 1988) (arbitrary refusal to issue a
building permit after applicant complied with all regulatory
requirements constituted denial of substantive due process); Bello
v. Walker,
840 F.2d 1124, 1129-30 (3d Cir. 1988) (allegation of
refusal to grant building permits for improper political reasons
stated a cause of action for denial of substantive due process).
See also Condor Corp. v. City of St. Paul,
912 F.2d 215, 220 (8th
Cir. 1990) (property owner may establish a substantive due process
cause of action for denial of a real estate use permit where
government action is so egregious and irrational that it exceeds
standards of inadvertence and mere errors of law); Brady v. Town of
Colchester,
863 F.2d 205, 215-16 (2d Cir. 1988) (plaintiffs
established entitlement to a plenary hearing, based on a claim of
denial of substantive due process, on issue of irrationality and
arbitrariness in the revocation of a building permit); Littlefield
v. City of Afton,
785 F.2d 596, 607 (8th Cir. 1986) (plaintiffs
stated actionable
42 U.S.C.A.
§1983 claim for denial of substantive
due process when they alleged city arbitrarily and capriciously
denied a building permit); Scott v. Greenville Cty.,
716 F.2d 1409,
1420-21 (4th Cir. 1983) (plaintiff stated actionable claim for
substantive due process violation when county council denied
building permit despite entitlement to permit under South Carolina
law).
The Bello court relied on Daniels v. Williams,
474 U.S. 327,
106 S. Ct. 662,
88 L. Ed.2d 662 (1986), for its conclusion
substantive due process rights secure an individual from
governmental abuse of power. Bello v. Walker, supra, 840 F.
2d at
1128. Daniels dealt with a 42 U.S.C.A. § 1983 claim by a former
City of Richmond jail inmate. The inmate claimed the Due Process
Clause of the Fourteenth Amendment afforded him protection against
the negligent conduct of a jail official that led to his injuries.
The Supreme Court concluded the clause did not protect against
negligent acts of officials causing unintended loss or injury to
person, liberty, or property. Id. at 328, 106 S. Ct. at 663, 88
L. Ed.
2d at 666. In the course of doing so, however, the Court
carefully distinguished intentional, deliberate conduct from
negligent conduct. It noted that the guarantee of due process
historically has been "applied to deliberate decisions of
governmental officials to deprive a person of life, liberty, or
property." Id. at 331, 106 S. Ct. at 665, 88 L. Ed.
2d at 668.
The Bello court relied on the deliberateness concept to undergird
its recognition of a substantive due process claim for denial of
the building permit application. Bello v. Walker, supra, 840 F.
2d
at 1128-30.
The pattern that arises from these cases is that, while there
are various test standards applied on a case-by-case basis, there
is one element essential to a prima facie case. The various tests
applied all suggest the need for some degree of malice or other
improper conduct on the part of the implicated government body or
official. Case review suggests difficult occasions involve
interests of different value, and the result depends on how
concepts of due process are applied to the values at stake. Even
though the cases espouse a variety of tests, i.e., arbitrary,
capricious, egregious, or deliberate, they embrace a common
element....the claimant must have a legitimate claim of entitlement
to the permit denied. That premise evolves from Board of Regents
v. Roth,
408 U.S. 564, 577,
92 S. Ct. 2701, 2709,
33 L. Ed.2d 548,
561 (1972), where the Supreme Court held procedural due process
protects a property interest when a plaintiff has a legitimate
claim of entitlement to it. The legitimacy of entitlement, in
instances relating to denial of building or other municipal
permits, is based on whether plaintiffs have complied with all
legal requirements contained in the local codes or ordinances. See
Bello v. Walker, supra, 840 F.
2d at 1126; Bateson v. Geisse, supra,
857 F.
2d at 1303; Littlefield v. City of Afton, supra, 785 F.
2d at
602; Scott v. Greenville Cty., supra, 716 F.
2d at 1418. Legitimacy
of entitlement then is a prerequisite to a prima facie case of
denial of substantive due process in cases of this nature.
Plaintiffs failed to establish a prima facie case. They
failed to demonstrate entitlement to final approval for a permit to
construct the sanitary sewer system. Their entitlement to the
permit required, at least, preliminary site plan approval. They
chose not to file for any site plan approval. Their entitlement
also depended on the effect the Board of Adjustment's resolution
had on their claim of right to proceed with the improvements. We
conclude the resolution did not and could not serve as
authorization to proceed with the improvements.
The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129, empowers municipalities to enact ordinances that require site plan review and approval as a condition precedent to the issuance of a permit for development. N.J.S.A. 40:55D-37a. In addition to delineating the contents for a site plan ordinance, N.J.S.A. 40:55D-38, -39, -41, the MLUL defines "site plan," "development," and "structure." N.J.S.A. 40:55D-4, -7. Required site plans may be classified as major or minor. N.J.S.A. 40:55D-5. A major site plan must be reviewed in two stages, preliminary and final. N.J.S.A. 40:55D-46, -50. It is the local ordinance which prescribes the classification based on the scope of development. William M. Cox, New Jersey Zoning and Land Use Administration § 15-4 at 261 (1995).
Defendant Township enacted a site plan review ordinance that required site plan review in those instances where the property owners proposed improvement of property that fell within the MLUL definition of development. See N.J.S.A. 40:55D-4. The ordinance, paralleling the MLUL development definition, made site plan review and approval mandatory for
the construction, reconstruction, conversion, structural alteration, relocation or enlarge-ment of any building or other structure . . . and any use or change in the use of any building or other structure or land or extension of land.
The ordinance also established the process for preliminary and
final site plan review. See N.J.S.A. 40:55D-46, -50.
Plaintiffs' proposed upgrade of their mobile home park fell
within the ordinance prescripts mandating preliminary and final
site plan review and approval because plaintiffs contemplated
construction of structures. The MLUL defines "structure" as "a
combination of materials to form a construction for occupancy, use
or ornamentation whether installed on, above, or below the surface
of a parcel of land." See N.J.S.A. 40:55D-7. Here, not only did
the sanitary sewerage pumping station and the sanitary sewer mains
qualify as structures that constituted development but so did the
water distribution lines, the underground conduit for telephone and
cable television, the decks and porches for each mobile home, the
gazebo, the cul-de-sac, the curbs, the sidewalks, and the
driveways. These improvements, when viewed in their totality,
required plaintiffs to apply for, at least, preliminary site plan
approval prior to their submission for final approval of their
sanitary sewer plans and the permit to allow construction. The
utilities ordinance identified preliminary site plan approval as a
step in the process of securing final sanitary sewer system
construction approval. Plaintiffs were not entitled to final
approval of their sanitary sewer plans and specifications until
they had secured preliminary site plan approval. They were further
not entitled to proceed with the "upgrading" of the mobile home
park until they had final site plan approval. Their failure to
comply with all the requirements of the applicable Township
ordinances precludes an actionable claim for denial of substantive
due process.
The zoning ordinance of 1961 abolishing trailer coach parks (mobile home parks) as permitted uses and the Public Works Director's questioning of plaintiffs' projected use of their mobile home park dictated the need for the issuance of a certificate of a valid prior nonconforming use by the Board of Adjustment if plaintiffs were to be able to proceed with their plans. Plaintiffs mislabeled their application. It should have been submitted under N.J.S.A. 40:55D-68. See Poulathas v. Atlantic City Zoning Bd. of Adjustment, 282 N.J. Super. 310, 312 (App. Div. 1995); Cronin v. Township Comm. of Chesterfield Tp., 239 N.J. Super. 611, 618 (App. Div. 1990). Apparently, neither plaintiffs nor the Board of Adjustment were aware of the then-recent amendment of N.J.S.A. 40:55D-68 authorizing the issuance of a certificate of prior nonconforming use in appropriate circumstances. Although the Board's resolution is not characterized as a certificate, we review the effect of the Board's resolution in the context of the latter statute.
During the growth of the law on zoning, nonconforming use took on a common law definition.
Historically, a nonconforming use has been looked upon as "a use of land, buildings or premises that lawfully existed prior to the enactment of a zoning ordinance and which is maintained after the effective date of such ordinance even though it does not comply with the use restrictions applicable to the area in which it is situated." 6 R. Powell, The Law of Real Property ¶ 871 (Perm. ed. 1979).
[Town of Belleville v. Parillo's, Inc.,
83 N.J. 309, 315 (1980).]
That concept, a protection against compulsory limitation on prior
nonconforming uses, is embodied in the MLUL under N.J.S.A. 40:55D-68 and defined by N.J.S.A. 40:55D-5.
The statutory guarantee against compulsory limitation is well
circumscribed. See Town of Belleville v. Parillo's, Inc., supra,
83 N.J. at 315. Continuance of a nonconforming use is restricted
to "substantially the same kind of use as that to which the
premises were devoted at the time of the passage of the zoning
ordinance." Id. at 316. Where there is doubt as to whether a
change is substantial or not, courts constantly have declared that
it is to be resolved against enlargement or change. Ibid.
Based on these principles, the Board of Adjustment's authority
to issue a certificate of a valid preexisting nonconforming use for
plaintiffs' premises extended only to the use in effect at the time
of the 1961 zoning ordinance. Although the Board was presented
with evidence that extended to well after 1961, it was without
authority to rule the mobile home park had a preexisting
nonconforming protected status for substantial changes at the
mobile home park that occurred after the effective date of the 1961
zoning ordinance. Consequently, while we do not find it necessary
or constructive to explore the detail of the proofs before the
Board in 1986, we hold that the Board's valid preexisting
nonconforming status ruling did not afford plaintiffs with any
entitlement to rely on that ruling to sustain a claim of
entitlement to the sewer permit at the heart of this litigation.
In doing so, however, we reject defendants' argument the Board's decision should be overturned due to the prior owners' failure to file their subdivision map with the county recording officer as provided for by the then-applicable, now repealed, N.J.S.A. 40:55-1.18. At the time of the subject subdivision approval, subdivision meant division of land for sale or building development. See N.J.S.A. 40:55-1.2 (now repealed). There is no suggestion in the record the owners of the mobile home park intended to sell, or construct any buildings on, the forty lots of the mobile home park. Indeed, the informality of the subdivision map would suggest to the contrary. It would suggest the owners sought only a forty-lot layout on the entire parcel they intended to retain. The informality of the map discloses the map could not have been recorded with the county recording officer. See N.J.S.A. 46:23-9.11 and its predecessor legislation. Certainly, Township officials participating in subdivision approval decisions would have required a more detailed, engineer-developed map had the owners suggested an intent to sell or build on the separate lots. While today we may look with sophisticated hindsight at the conduct of planning boards operating in the early 1960s, we must not lose sight of the fact that zoning still was in its infancy for many communities. Moreover, we also must not lose sight of the fact that, while the Municipal Planning Act of 1953, N.J.S.A. 40:55-1.1 to -1.29, prescribed authority for enactment of land use subdivision ordinances and did not specifically authorize site plan approval, municipalities were deemed to have site plan approval
authority. See Kozesnik v. Township of Montgomery,
24 N.J. 154
(1957). Viewed in that light, we find it inappropriate to
undermine the Board of Adjustment's resolution based upon the 1959
failure to file the subdivision map. Consequently, and without
consideration of the fact defendants' challenge to the Board's
action suffers from lack of timeliness, see R. 4:64-6, we find no
basis for overturning the Board of Adjustment's resolution. At the
same time, however, we conclude the resolution did not provide a
foundation for any entitlement to the permit for construction of
the sanitary sewer collection system.
We reject plaintiffs' contentions to the extent they suggest
the contrary. The proposed improvements, as we have ruled,
constituted a plan for development. If plaintiffs sought approval
of their plan before the Board of Adjustment, they not only were
required to give public notice of the hearing on their application,
see N.J.S.A. 40:55D-12, but they also had the burden of proving
those improvements did not constitute an expansion of the
nonconforming use. See, e.g., Town of Belleville v. Parillo's,
Inc., supra, 83 N.J. at 315-16. Simply put, the Board's
determination gave no imprimatur of validity to the improvements
plaintiffs proposed for their mobile home park.
In sum, we conclude plaintiffs failed to establish an actionable claim for denial of substantive due process and the damages authorized by 42 U.S.C.A. §1983. Plaintiffs were not entitled to a permit to construct the mobile home park sanitary
sewage collection system due to their failure to apply for and
secure preliminary site plan approval. Even so, armed with the
permit they could not proceed with completion of the improvements
until they had final site plan approval. Moreover, the Board of
Adjustment resolution did not afford them entitlement to install
any improvements; it simply recognized the 1961 existing mobile
home park as a legal nonconforming use. The lack of site plan
approval and limited scope of the certificate of prior
nonconforming use did not afford plaintiffs entitlement to the
permit the trial court found improperly denied nor to the damages
plaintiffs claimed were caused by the delay in issuing the permit.
We make one final comment. Due to the fact it was not raised,
we do not address the issue of whether plaintiffs' federal civil
rights claim is not cognizable due to adequacy of a state law
remedy. See Rivkin v. Dover Tp. Rent Leveling Bd.,
277 N.J. Super. 559, 569-70 (App. Div. 1994).
Accordingly, we reverse and remand for entry of judgment in
favor of defendants.
Footnote: 1Plaintiffs have named the Township Council and Utilities Division as a defendant. A Township Municipal Utilities Ordinance created a Municipal Utilities Division, a division of the Township Council, to act on all permits authorized by the ordinance. For the sake of brevity, we employ the term "governing body" to refer to that Division. Footnote: 2In early 1989, plaintiffs sought another "interpretation" from the Board of Adjustment. The "interpretation" sought was whether the March 1986 resolution extended to the sale of mobile homes from the site. The Board denied the application on grounds it was an expansion of a nonconforming use and required a use variance. That decision is not at issue on this appeal.