MICHAEL RANTZ VS. PLANNING BOARD OF BAY HEAD (L-0626-17, OCEAN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-5765-17T3
MICHAEL RANTZ,
Plaintiff-Respondent,
v.
PLANNING BOARD OF BAY
HEAD,
Defendant-Respondent,
and
PATRICK WATERS and
SHANNON WATERS,
Defendants-Appellants.
_____________________________
Argued August 13, 2019 – Decided August 20, 2019
Before Judges Messano and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-0626-17.
Angelo Anthony Stio, III argued the cause for
appellants Patrick Waters and Shannon Waters (Pepper
Hamilton LLP, attorneys; Jonathan M. Preziosi and
Angelo Anthony Stio, III, of counsel and on the briefs).
Citta Holzapfel & Zabarsky, attorneys for respondent
Planning Board of Bay Head, join in the briefs of
appellants Patrick Waters and Shannon Waters.
Edward F. Liston, Jr. argued the cause for respondent
Michael Rantz.
PER CURIAM
Defendants Patrick and Shannon Waters own a home in the Borough of
Bay Head (Bay Head) in a single-family residential zone, which permits
accessory buildings subject to certain limitations. Defendants' property
included an accessory structure at the rear that contained a sink, toilet and
shower. As contract purchasers of the property, defendants participated in an
informal hearing on the record before the Planning Board (the Board). 1 At that
time, Bart Petrillo, the municipality's zoning officer, was a member of the Board
and participated in the May 2016 proceeding. The Board recommended that
1
The Board is a unified board that also exercises all powers of a board of
adjustment pursuant to N.J.S.A. 40:55D-25(c). However, N.J.S.A. 40:55D-10.1
permits only a planning board, not a board of adjustment, to conduct informal
reviews. See also Cox & Koenig, N.J. Zoning and Land Use Administration,
§13-2 (2019).
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defendants file a development application pursuant to N.J.S.A. 40:55D-682 and
informally indicated it might look favorably upon the application.
After purchasing the property, defendants filed the application, asserting
the sink, toilet and shower had been in the building "for many years," and the
building "ha[d] . . . been used for sleeping purposes in the past." Defendants
sought to "maintain these facilities . . . as sleeping quarters for family members
and guests." In their public notice, defendants stated the application sought "[a]
certificate of continuance of a pre-existing non-conforming use . . . to permit the
continuation of shower, sink and sanitary facilities in the accessory structure ,"
so defendants could "continue the use of the accessory structure as sleeping
quarters for family and guests." The Board held public hearings on the
application.
At the first public hearing, Petrillo recused himself "because [he had]
spoken at great length to some of the people (indiscernible) ordinance." Patrick
2
In relevant part, N.J.S.A. 40:55D-68 provides:
The prospective purchaser . . . or any other person
interested in any land upon which a nonconforming use
or structure exists may apply in writing for the issuance
of a certificate certifying that the use or structure
existed before the adoption of the ordinance which
rendered the use or structure nonconforming. The
applicant shall have the burden of proof.
A-5765-17T3
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Waters testified, as did several neighbors, all of whom objected to defendant's
request. Later testimony from one of the neighbors revealed that she and
plaintiff's wife had actually met with Petrillo in July to express their concerns.
The Board adjourned the first hearing without taking further testimony.
Defendants' subsequent notice to the county planning board in October stated
they "intend[ed] to use the accessory structure for uses customarily incidental to
that of the primary residential structure," not "as a separate dwelling unit."
For reasons that follow, we need not recount most of the testimony before
the Board at the ensuing meetings. It suffices to say that defendants attempted
to prove the sink, toilet and shower were in the accessory structure prior to a
2003 amendment to Bay Head's zoning regulations. Prior to the amendment, the
ordinance was silent as to whether plumbing fixtures were permitted inside
accessory structures; the amendment added language that prohibited "interior
plumbing except for . . . clothes washers, dryers and work sinks" in any
"accessory building in a residential zone." Borough of Bay Head Ordinance, §
147-6(D)(7). Plaintiff, on the other hand, asserted that if the plumbing fixtures
were installed prior to 2003, they had been abandoned.
After considering the testimony of Petrillo, who defendants called without
objection as their first witness, nine other witnesses and documentary proof, the
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Board voted to issue a certificate of non-conformity as to the sink and toilet, but
not the shower. In its January 2018 memorializing resolution, the Board found
that the "sink and toilet [were] located in the accessory structure since at least
prior to 2003" and no owner had "intended to abandon" their use. Citing
Petrillo's testimony, the Board credited his "opinion that prior to the ordinance
change in 2003, use of the sink and toilet in the accessory structure [was]
permitted" under Bay Head's zoning regulations.
Plaintiff filed a complaint in lieu of prerogative writs challenging passage
of the resolution as arbitrary, capricious and unreasonable. Additionally,
plaintiff alleged Petrillo's testimony in favor of the application "effect[ed] the
deliberative process of the . . . Board . . . and poisoned the spirit of impartiality."
Defendants also filed suit challenging the Board's denial of the certificate
regarding the shower. The Law Division judge heard oral argument and reserved
decision.
He subsequently entered an order vacating the Board's resolution and
dismissing defendants' complaint without prejudice. 3 The order also stated that
the court made "no findings or decision on the substantive merits of" defendants'
3
Without citation, defendants' brief states they subsequently withdrew their
complaint. In any event, defendants have not cross-appealed the Board's denial
of a certificate of non-conformity regarding the shower.
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application, "[t]herefore res judicata [was] not invoked and [defendants] may
reapply . . . for the same relief . . . . Likewise, [p]laintiff . . . may interpose the
same objections to the requested relief." The judge explained his rationale in a
concise written opinion that accompanied the order. Quoting Petrillo's
testimony before the Board, and citing our decision in Szoke v. Zoning Board
of Adjustment, Borough of Monmouth Beach, 260 N.J. Super. 341 (App. Div.
1992), the judge concluded, "[o]nce disqualified . . . Petrillo had an obligation
not to further insert himself into the proceedings before the Board. His
testimony, apparently crucial to [defendants'] cause . . . irreparably tainted the
proceedings . . . ."
Before us, defendants argue that the factual circumstances here are
materially different from those present in Szoke. They contend that Petrillo's
testimony was essentially factual in nature and concerned matters that were
undisputed, i.e., that Bay Head's zoning regulations prior to 2003 did not
prohibit indoor plumbing in accessory buildings in residential zones. We agree
and reverse.
As noted, defendants called Petrillo, who had served as Bay Head's zoning
official since 1999, as their witness and asked him to identify the post-2003
ordinance that generally prohibited plumbing fixtures in accessory buildings,
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and the 2002 ordinance that was silent on the subject. Defense counsel then
asked:
Q. [I]t would be your understanding that the zoning
ordinance prohibiting plumbing fixtures in an
accessory structure came into effect when this
ordinance in 2003 was passed?
A. Yes.
Q. Prior to that date, was your understanding and your
recollection that such fixtures would have been allowed
in an accessory structure?
A. Yes.
That was the extent of direct examination.
The trial judge, however, focused on what defense counsel immediately
elicited thereafter on cross-examination.
Q. Do you know what regulation . . . there was on the
books prior to that 2003 ordinance, which says: "An
accessory building shall not have interior plumbing
except for . . . clothes washers, dryers, and work sinks"?
A. Well, . . . prior to that ordinance, you were allowed
to put a bathroom . . . toilet, showers, . . . into the
accessory structure.
Q. Where is that in your . . .
....
Q. . . . prior ordinance?
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A. It was not . . . prohibited. And if it wasn't
prohibited, it was permitted. That's the way it was
written.
Q. Isn't that the reverse of what normal zoning reads;
if it's not allowed, it's prohibited?
A. Not that I'm aware of.
Q. Was there any specific language in the ordinance
prior to 2003 that you're aware of, that specifically
allowed any plumbing fixtures in an accessory
building?
A. No. But the . . . reason the ordinance was changed:
There was concern there were many properties . . . that
were converting their garages into pool houses, which
consisted of toilets and showers. And the Board . . .
was concerned with it, they wanted to prohibit it, so
they changed the ordinance.
Q. So they changed the ordinance to only allow certain
types of fixtures?
A. Correct.
On redirect, defense counsel asked Petrillo "if a property [owner] had come to
you in 2002 with a request for a building permit to install a sink, a shower, a
toilet in an accessory structure, would you have granted . . . that permit?"
Petrillo answered, "Yes." We have just quoted almost every word of Petrillo's
testimony before the Board.
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In Szoke, a planning board member recused himself from considering a
development application for undisclosed reasons. 260 N.J. Super. at 343.
Nonetheless, he "participated in the hearing in a significant manner on three
occasions," by offering his "personal knowledge of the municipality's zoning
history," "his opinion as to what the electric company would do" to provide
service to a proposed building on the subdivided lot, and opining that the
development proposal was "the best use for the property." Id. at 343-44. The
recused member then "proceeded to discuss and refute at some length" points
made by one of the objectors. Id. at 344.
We concluded the first two comments were "innocuous impropriet[ies],"
neither of which were "capable of affecting the deliberative process[.]" Ibid.However, the recused member's last comments and conduct were "capable of
affecting the deliberations" and "w[ere] totally incompatible with the
noninvolvement which he . . . felt some conflict situation required." Id. at 345.
We rejected the argument that the recused member's abstention from voting
salvaged the board's approval of the application, noting, "To distinguish between
substantive participation in the deliberative process and the technical vote would
elevate form over substance." Ibid.A-5765-17T3
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Here, with the exception of the hypothetical question posed to Petrillo on
redirect examination, almost all of his testimony on direct and cross-
examination was "the type of historical information which a zoning board often
relies upon its members to furnish and is totally proper when fully disclosed on
the record." Id. at 343 (citing Baghdikian v. Bd. of Adj. Ramsey, 247 N.J. Super.
45, 49-51 (App. Div. 1991)). Moreover, despite the language contained in the
Board's resolution, Petrillo's testimony was relevant, but somewhat tangential
to, the essential question facing the Board, i.e., whether the fixtures pre-existed
the 2003 amendment, and if so, whether they had been abandoned by prior
owners of the property. Indeed, the Board's decision to conclude the sink and
toilet were pre-existing non-conformities, while the shower was not, reflects the
entire focus of the hearings.
Moreover, had the issue arisen in a different procedural framework,
Petrillo's opinion about the amended ordinance would have been the central
concern and focus of the Board's decision. For example, had defendants simply
attempted to use the fixtures in the accessory structure without seeking the
certificate of pre-existing non-conformity, plaintiff or some other objector
would have been forced to seek the Board's review, since that would have
ostensibly violated the current ordinance. See N.J.S.A. 40:55D-70(b) (granting
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Board power to "[h]ear and decide requests for interpretation of the zoning map
or ordinance"); N.J.S.A. 40:55D-72(a) (allowing "any interested party" to appeal
to the Board if "affected by any decision of an administrative officer . . . based
on or made in the enforcement of the zoning ordinance."). See also Mullen v.
Ippolito Corp., 428 N.J. Super. 85, 105-06 (App. Div. 2012) (explaining
objector's right to pursue mandamus action when municipality's zoning officer
failed to respond to complaints about zoning violations). The obvious point is
that in those procedural circumstances, the Board would have been required to
consider, indeed review, Petrillo's understanding of the pre- and post-2003
ordinances.
Lastly, plaintiff never objected to defendants calling Petrillo as a witness,
thereby eliminating the Board's opportunity to consider whether his testimony
was necessary, and if so, whether it should be properly limited. The lack of any
objection also eliminated defendants' opportunity to adduce equivalent
testimony by other means or with another witness.
As it was, defendants elicited exceedingly limited testimony on direct
examination that was purely factual in nature. It was plaintiff's counsel who
expanded the scope of inquiry by debating Petrillo's interpretation of the earlier
ordinance. The fact that the Board cited Petrillo's "opinion" about the meaning
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of the pre-2003 ordinance was solely the result of plaintiff's counsel's
questioning. In any event, "where a Board member has such a tenuous
appearance of impropriety as in this case, a party cannot make a strategic
decision to not challenge the alleged impropriety at the hearing in order to save
it as a trump card on appeal, in the event of an adverse decision." Sugarman v.
Twp. of Teaneck, 272 N.J. Super. 162, 171 (App. Div. 1994).
Reversed. Because the Law Division judge never considered the merits
of plaintiff's challenge to the Board's resolution, we reinstate count one of
plaintiff's complaint and remand the matter to the trial court for further
proceedings. We do not retain jurisdiction.
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