ALLEN & BUBENICK, INC. VS. TOWNSHIP OF PISCATAWAY (L-7932-11 AND L-3560-13, MIDDLESEX COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-1309-13T4
A-5649-13T4
A-3471-14T4
ALLEN & BUBENICK, INC.,
Plaintiff-Appellant,
v.
TOWNSHIP OF PISCATAWAY,
TOWNSHIP OF PISCATAWAY COUNCIL,
TOWNSHIP OF PISCATAWAY BOARD OF
ADJUSTMENT, and TOWNSHIP OF
PISCATAWAY PLANNING BOARD,
Defendants-Respondents.
_______________________________
Argued November 29, 2016 – Decided May 30, 2017
Before Judges Reisner, Rothstadt, and Sumners.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County, Docket
Nos. L-7932-11 and L-3560-13.
Elliott Louis Pell argued the cause for
appellant.
Danielle Abouzeid argued the cause for
respondents Township of Piscataway, Township
of Piscataway Council, and Township of
Piscataway Planning Board (Dvorak &
Associates, LLC, attorneys; Ms. Abouzeid, of
counsel and on the brief).
Richard J. Mirra argued the cause for
respondent Township of Piscataway (Hoagland,
Longo, Moran, Dunst & Doukas, LLP, attorneys;
Mr. Mirra, of counsel and on the brief; Nicole
C. Tracy, on the brief).
James J. Kinneally, III, argued the cause for
respondent Township of Piscataway Board of
Adjustment (Marriott Callahan & Blair,
attorneys; Mr. Kinneally, on the brief).
PER CURIAM
In these three consolidated matters, plaintiff Allen &
Bubenick, Inc. appeals from orders entered by the Law Division
dismissing each of its three complaints relating to its efforts
to obtain a zoning permit and certificate of occupancy (CO)
necessary to its attempt to sell its property and business.1
Plaintiff alleged that defendants Township of Piscataway, its
council, and zoning and planning boards improperly exercised their
1
In A-1309-13, plaintiff appeals from three orders entered on
October 7, 2013, denying plaintiff's motion for partial summary
judgment, granting defendants' motions for summary judgment,
dismissing plaintiff's complaint relating to its prospective
purchaser's application, seeking declaratory relief and damages,
and denying plaintiff's cross-motion to file a second amended
complaint. In A-5649-13, plaintiff appeals from the Law Division's
June 23, 2014 order granting summary judgment in favor of the
township, the board of adjustment, and the planning board, and
dismissing plaintiff's complaint in lieu of prerogative writs that
challenged the zoning officer's denial of its prospective
purchaser's application for a zoning permit. In A-3471-14,
plaintiff appeals from the Law Division's February 4, 2015 order
dismissing its action in lieu of prerogative writs that challenged
the zoning board's sustaining the zoning officer's denial of its
application for a certificate of continued occupancy.
2 A-1309-13T4
authority and powers by wrongfully interfering with plaintiff's
anticipated sale by requiring its contract purchaser, Kings
Building Materials, L.L.C. (Kings), and plaintiff to seek site
plan approval for a CO and certificate of continued occupancy
(CCO).
Plaintiff argued to the trial courts that the municipal
authorities acted arbitrarily and in violation of plaintiff's
constitutional rights by sustaining the zoning officer's decision
to require site plan approval for "a mere change in occupancy."
The two Law Division judges who considered the matters rejected
plaintiff's claims because the municipal authorities acted
properly in light of the fact that, at the time of Kings' and
plaintiff's applications, plaintiff had never complied with
conditions to various approvals the planning board granted years
earlier. Moreover, after the denial, plaintiff satisfied the
conditions and the zoning officer approved plaintiff's
applications for a permit, without requiring site plan approval,
rendering plaintiff's claims moot. On appeal, plaintiff argues
numerous reasons why both judges erred, primarily asserting its
view that the conditions to the earlier approvals plaintiff had
not satisfied gave rise to an enforcement issue that the township's
official could not rely upon to deny their applications.
3 A-1309-13T4
We have considered plaintiff's contentions in light of our
review of the record and applicable legal principles. We find no
merit to plaintiff's arguments and affirm, substantially for the
reasons expressed by the Law Division judges who dismissed
plaintiff's complaints, and for the additional reasons stated in
this opinion.
The facts we discern from the record regarding each order can
be summarized as follows. Plaintiff was in the business of
manufacturing and the retail sale of cinder block and related
materials. It conducted its business from three structures on
property it owns on Stelton Road in the township since
approximately 1947. One structure was used for the manufacturing
of cinder blocks, another as warehouse, retail, and office space,
and the third as warehouse space only. The property is located
in the LI-1 (Light Industrial) zone and plaintiff's manufacturing
business was a permitted use in that zone. Its retail operations
were also a permitted use as long as they were limited to five
percent of the building floor area.
Years before the applications that are the subject of
plaintiff's complaints, plaintiff made two applications relating
to the expansion of two of its buildings that the planning board
approved in September 1990 and April 1992. The approval of the
first application was subject to certain conditions that were set
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forth in a memorandum from the township's Division of Planning
dated June 22, 1990. The conditions were: installation of brick
pavers in the parking area; the paving of a driveway to eliminate
stones being thrown onto Stelton Road; the planting of street
trees along Stelton Road; and the striping of proposed parking
stalls. The approval of the second application was also
conditioned upon various requirements, including plaintiff's
"[c]omplaince with all conditions of [the 1990] approval . . . ."
On May 11, 1999, plaintiff applied for a certificate of
occupancy. The application made no mention of the earlier site
plan approvals even though that information was requested. The
township zoning officer stated on the application that, "it should
be noted that there is existing storage in the Township's right-
of-way of Trent Place, which is not approved as any part of any
site plan." Nevertheless, plaintiff was issued a CO on July 29,
1999.
Kings filed its application for a CO after it entered into a
contract to purchase plaintiff's property and business. The
application stated that Kings sought to use the property in exactly
the same manner as plaintiff. Kings' application also did not
disclose the earlier approvals as required.
Upon receipt of Kings' application, the township's Supervisor
of Planning and Zoning Officer conducted a site inspection. After
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her inspection, the zoning officer rejected Kings' application
because "site plan and variance approval [were] required" and
various conditions from the 1990 and 1992 approvals had not been
met. The zoning officer prepared a memorandum listing thirteen
conditions she had observed on or adjacent to plaintiff's property
that were in violation of the township's ordinances or the
conditions of the 1990 and 1992 approvals that plaintiff had not
satisfied.2
2
Specifically, the memorandum noted the following:
A landscape buffer was required to be along
the entire frontage of the property to screen
the outside storage; no buffer currently
exists.
Stripping of the parking lot was required to
delineate the parking stalls or color paver
delineating the parking stalls.
Tire stops are required in front of the
sidewalk (along the pavers).
No outside storage was permitted within the
access lane.
The fence and materials are located in Trent
Place . . . .
Barbed wire is not permitted on the fence or
a variance is required.
A copy of the lease agreement with Conrail
needs to be submitted.
6 A-1309-13T4
The non-conforming conditions specifically included a masonry
contractor using the property without a certificate of occupancy;
fencing and outdoor storage within the township's rights-of-way;
a dumpster (structure) straddling the property line with adjoining
A masonry contractor is running a business on
the property without a certificate of
occupancy.
There are several buildings that are in poor
condition. The canopy has collapsed on one
of the buildings. The Building Department
will need to determine whether the buildings
are safe for occupancy.
There is no signage to direct traffic as
required by a prior Board approval.
A variance will be required for insufficient
setbacks of the outside storage.
A variance is also required for insufficient
parking. Additional variances may be
required.
The overall maintenance of the property needs
to be in compliance with the Township's
Property Maintenance Ordinance.
The owner of the property entered into a
developer's agreement with the Township as
part of a 1990 Planning Board approval. There
is no record of any payments being made as
required by the agreement. The owner should
provide proof of payment or the payments will
be required to be made.
There was no evidence that township ever sought to enforce its
ordinances or the conditions to its earlier approvals.
7 A-1309-13T4
railroad property; and sand and gravel storage bins located on the
railroad's property. The conditions demonstrating noncompliance
with the 1990 and 1992 approvals were the use of the adjoining
railroad property without site plan approval, the use of fencing
within the township's rights-of-way, and the use of those rights-
of-way for storage. Also, the zoning officer concluded that new
fencing, a wall, or plantings, must be erected by plaintiff because
outdoor storage was required to be fenced pursuant to township
ordinances.
As a result of the deficiencies found by the zoning officer,
she determined that Kings did not qualify for a CO or an exemption
from seeking site plan approval.3 The zoning officer met with
plaintiff's and Kings' representatives in an attempt to resolve
the issues related to her denial of Kings' application and those
3
Piscataway Township Zoning Ordinance No. 24-201.1 provides
for exemption from site plan approval as long as four conditions
are met. One of them was:
that the existing building and new use or
change comply with all of the above and the
structure and lot comply with all of the
zoning district regulations, inclusive of
parking, buffer areas and location and size
of signs for a change of use and/or change of
occupancy, and a written report from the
zoning officer that adequate landscaping
exists or is proposed.
[Piscataway Twp., N.J., Code ch. 24-
201(a)(4).]
8 A-1309-13T4
related to Kings' anticipated use of the property, which turned
out to include a more extensive retail operation than that which
plaintiff conducted from the premises. Despite that meeting and
subsequent submissions from plaintiff and Kings, the zoning
officer did not change her denial of Kings' application for a
zoning permit and CO. Thereafter, Kings terminated its offer to
purchase plaintiff's property.
Plaintiff filed its first complaint on November 4, 2011,
seeking injunctive relief, requiring the township to issue the
zoning permit and CO, and alleging that its constitutional rights
had been violated by the zoning officer's interpretation of the
township's zoning ordinances. Plaintiff alleged that the
township's and its board's actions were jeopardizing its sale to
Kings. In addition to injunctive and declaratory relief, plaintiff
sought damages and counsel fees.
While plaintiff's lawsuit was pending, it applied for a CCO
in its own name on March 9, 2012, which the zoning officer denied
on March 26, 2012. Plaintiff appealed that denial to the zoning
board on April 12, 2012. Plaintiff also filed a complaint in lieu
of prerogative writs, challenging the zoning officer's denial of
plaintiff's application, before the zoning board decided the
appeal plaintiff had filed with that board.
9 A-1309-13T4
After plaintiff filed the second complaint, it rectified the
violations and non-conforming conditions identified earlier by the
zoning officer. Plaintiff removed fences from all township rights-
of-ways, removed all items on the adjoining railroad property,
displayed proper signage, and installed tire stops on the parking
lot. The zoning officer inspected the property and confirmed that
plaintiff had corrected the violations. The zoning officer
approved the application and issued a CCO to plaintiff.
Despite its receipt of the CCO, plaintiff did not withdraw
its appeal to the zoning board, nor did it dismiss its pending
complaints. At a hearing on March 21, 2013, the zoning board
confirmed that plaintiff had corrected the conditions and that a
CCO had been issued. Plaintiff was nevertheless given an
opportunity to explain why it continued to pursue the appeal when
it already had the CCO and to present testimony and evidence in
support of its original claims. The zoning board concluded in its
resolution dated April 11, 2013, that plaintiff's application was
properly denied for the reasons stated by the zoning officer.
Plaintiff filed its third complaint, another action in lieu of
prerogative writs, challenging the zoning board's decision.
After the trial court scheduled plaintiff's first action for
trial and the discovery end date had passed, plaintiff filed a
motion for partial summary judgment. The township, its council,
10 A-1309-13T4
and planning board also filed a motion for summary judgment seeking
dismissal of plaintiff's complaint with prejudice. Plaintiff
filed a cross-motion for an order permitting it to file a second
amended complaint.
Judge James P. Hurley considered counsels' oral arguments on
the parties' motions on August 26, 2013, and issued orders on
October 7, 2013, denying plaintiff's motion and cross-motion, and
granting defendants' motions. Judge Hurley set forth his reasons
in a twelve-page, single-spaced written decision.
The judge first addressed plaintiff's motion to file a second
amended complaint, compared the allegations of the proposed
pleading to the first amended complaint and concluded that the
claims proposed by amendment were already stated within the filed
pleading. The judge determined that by attacking the application
of the township's ordinance in the filed pleading, plaintiff
challenged the township's ordinance facially as well as its
application so there was no need to permit amendment, especially
since the discovery period had already concluded and a trial date
was scheduled.
Next, the judge addressed the parties' motions for summary
judgment. After discussing the standard applicable to the motions,
Judge Hurley summarized plaintiff's eleven claims for relief,
considering each of them in light of what he found were the
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undisputed facts. The judge described plaintiff's challenges to
the manner in which the township officials applied its ordinances,
and concluded that "[t]he interpretation of the ordinance [§ 24-
201.1] is the basis of all claims for relief in plaintiff's
complaint." Judge Hurley read the ordinance to require site plan
approval on a change of occupancy "if a use [will be] inconsistent
with the zoning regulations of the Township, or if the use is in
violation of any prior site plan approval . . . ." He then found
that at no time prior to the filing of its complaint did plaintiff
correct its violations of the conditions of the planning board's
earlier approvals. As a result of its non-compliance, the judge
stated that plaintiff could have either applied to the planning
board for relief from its obligations under the earlier approvals
or it could have satisfied the conditions to avoid the requirement
for site plan approval.
Judge Hurley also addressed plaintiff's argument that a
municipality cannot withhold a CO "to assure that the use of
property is in conformance with the zoning ordinance," and found
plaintiff's reliance on our opinion in Cherry Hill Twp. v. Oxford
House, Inc., 263 N.J. Super. 25, 51-52 (App. Div. 1993), to be
inapposite because that case dealt with a denial of a CO because
the proposed use was not permitted as compared to plaintiff's
issues that were the result of its failure to comply with the
12 A-1309-13T4
conditions of the earlier approvals. Judge Hurley analyzed the
township's ordinances relating to COs and CCOs and observed that
the township's requirement that an applicant for a CCO seek a
zoning permit was a recognized method to insure that a use will
conform with a previously granted site plan approval. He rejected
plaintiff's contention that this requirement was inconsistent with
the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and
that its application was limited to new developments or
construction.
Judge Hurley turned to plaintiff's due process claims and
concluded they were without merit. The judge found that upon the
denial of Kings' application for a zoning permit and a CO, there
were administrative remedies available to plaintiff that it did
not pursue, including applications to the zoning board or the
local construction board. Moreover, any constitutional challenge
to the ordinance was meritless because plaintiff's failure to
satisfy the conditions of the earlier approvals created
plaintiff's problem.
Addressing defendants' motions and the interpretation of the
ordinance the judge stated "there is nothing in §24-201 that
requires a site plan review merely because of a change in
occupancy" and that requiring a zoning permit as a prerequisite
to a CCO does not conflict with the MLUL, nor does it violate
13 A-1309-13T4
plaintiff's constitutional rights. Consequently, plaintiff
suffered no deprivation of any property rights as a result of any
action taken by the township or its boards and the delay plaintiff
suffered that, as plaintiff alleged, interfered with its sale to
Kings was caused only by plaintiff's failure to comply with the
conditions of the earlier approval.
Similarly, Judge Hurley determined that, as no contract
existed between plaintiff and the township or any of its boards,
had plaintiff suffered any injury giving rise to a claim for
damages not addressed in any specific statute, the court could not
grant it any relief because plaintiff failed to comply with the
Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. The court also rejected
plaintiff's civil rights violation claims under 42 U.S.C.A. § 1983
because neither the township nor its boards deprived plaintiff of
any rights.
Finally, Judge Hurley addressed plaintiff's estoppel and
laches arguments that were based upon its claim that the township
was barred from requiring compliance with the prior approvals
because it issued a CO in 1999 that did not mention "plaintiff's
noncompliance." The judge observed that plaintiff's 1999
application failed to disclose the prior approval, as required by
the form, and, in any event, even if the zoning officer erred in
1999 by not discovering the outstanding violations, only the board
14 A-1309-13T4
was empowered to relieve plaintiff from its obligations to comply.
Relying upon on settled case law, the judge concluded that estoppel
and laches were not viable legal arguments under the circumstances
presented. The judge also found inapplicable plaintiff's argument
that the township's boards did not "turn square corners" in its
consideration of the applications for the zoning permit and CCO.
The township subsequently filed a summary judgment motion,
seeking to dismiss plaintiff's first action in lieu of prerogative
writs. On June 23, 2014, Judge Hurley considered counsels' oral
arguments regarding the township's motion. At the hearing, the
township's attorney argued that summary judgment should be granted
for the same reason that the judge granted that relief in
plaintiff's earlier action arising from the denial of Kings'
application. Plaintiff's counsel offered no oral argument and the
judge, relying upon In re estate of Dawson, 136 N.J. 1, 20 (1994),
concluded that application of collateral estoppel mandated the
dismissal of the complaint for the same reason that he dismissed
plaintiff's complaint in the earlier action. Judge Hurley entered
an order on the same date dismissing the complaint against the
township.
The zoning board later filed a motion for summary judgment
seeking the dismissal of plaintiff's second prerogative writ
action. Judge Douglas K. Wolfson considered counsels' oral
15 A-1309-13T4
arguments on January 23, 2015, relating to plaintiff's second
prerogative writ complaint that challenged the zoning board's
sustaining the zoning officer's denial of a permit and CCO to
plaintiff. At the hearing, the judge established that the only
remaining defendant in the case was the zoning board due to earlier
voluntary dismissals. In response to questioning by the judge,
plaintiff's counsel admitted that the relief plaintiff was seeking
in its complaint, the issuing of the CCO, was moot because the
zoning officer had already issued the permit and certificate.
Nevertheless, counsel argued plaintiff was entitled to a
determination that the zoning officer's initial decision was wrong
and the ordinance relied upon by the board was invalid. After
considering counsels' arguments, Judge Wolfson concluded that the
issues being raised were moot and, even if they were not, that the
zoning officer and board's actions were not arbitrary, capricious,
or unreasonable based upon plaintiff's failure to satisfy the
conditions of the earlier approval. Accordingly, the judge entered
an order dismissing plaintiff's complaint.
On appeal, plaintiff's numerous arguments focus on what it
argues was either the misapplication of the township's ordinance
§ 24-201.1 or it being facially unconstitutional to the extent it
deprived plaintiff or Kings' of the zoning permit and CCO necessary
to the sale of plaintiff's property or its continued use.
16 A-1309-13T4
Plaintiff contends that its failure to comply with any of the
conditions of the earlier approvals could not be relied upon to
deny the subject applications. Plaintiff alleges it was caused
to suffer deprivation of its "protectable property interest" and
diminished the value of its property. Plaintiff also argues again
that notions of estoppel barred the township from denying the
applications and the wrongful denials caused it to suffer damages
for which it should be compensated. Plaintiff also contends that
the actions of all of the municipal boards were arbitrary,
capricious, and unreasonable. Finally, plaintiff argues it should
have been permitted to file a second amended complaint in its
original action.
We review a trial court's grant of summary judgment de novo
and apply the same standard as the trial court. Cypress Point
Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 414 (2016).
Summary judgment must be granted if there is no genuine issue of
material fact challenged and the moving party is entitled to
judgment as a matter of law. R. 4:46-2. No special deference is
afforded to the legal determinations of the trial court when no
issue of fact exists. Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing
Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995)).
17 A-1309-13T4
We conclude from our de novo review that plaintiff's
contentions are without sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially
for the reasons expressed by both Judge Hurley and Judge Wolfson.
We add only the following brief comments.
The thrust of plaintiff's arguments has been that the township
could not enforce the conditions of the earlier approvals by
requiring site plan approval. Therefore, plaintiff was entitled
to the zoning permit and CO. Plaintiff's premise is incorrect.
A zoning permit is different from a CO or a CCO. Despite the
different purposes that zoning permits and COs and CCOs are
intended to address, "there is some overlap." Cox & Koenig,
Current N.J. Zoning & Land Use Administration 257 (2017).
A zoning permit relates to the specific use a property is put
to and that which a purchaser may propose. See N.J.S.A. 40:55D-
68; see also Twp. of Mahwah v. Landscaping Techs., Inc., 230 N.J.
Super. 106, 109-10 (App. Div. 1989). "The obvious purpose of
requiring a zoning permit is to assure that the proposed use,
construction or alteration will be in accordance with the
provisions of the zoning ordinance." Cox & Koenig, supra, at 253.
"[A] certificate of occupancy is not a device to assure that
the use of property is in conformance with the zoning ordinance
of the municipality." Twp. of Mahwah, supra, 230 N.J. Super. at
18 A-1309-13T4
109; see also Cherry Hill Twp., supra, 263 N.J. Super. at 52. A
CO and a CCO relate to the construction and conditions on the
property as compared to its use. A CO "indicat[es] that the
construction authorized by [a] construction permit has been
completed in accordance with the construction permit, the State
Uniform Construction Code and any ordinance implementing said
code." N.J.S.A. 52:27D-121; see also N.J.S.A. 52:27D-133;
N.J.A.C. 5:23-1.4. A CCO addresses whether there are any
violations of construction regulations or unsafe conditions on a
property. "A [CO]'shall be issued by the enforcing agency when
all of the work covered by a construction permit shall have been
completed in accordance with the permit, the code, and other
applicable laws and ordinances.'" DKM Residential Props. Corp. v.
Twp. of Montgomery, 363 N.J. Super. 80, 89 (App. Div. 2003)
(quoting N.J.S.A. 52:27D-133), rev'd on other grounds, 182 N.J.
286 (2005). "Required provisions of every certificate of occupancy
include: 'that the completed project meets the conditions of the
construction permit, the approved drawings including all
amendments, and all prior approvals' and that all necessary
inspections have been completed and that the completed project
meets the requirements of the regulations.'" Ibid. (emphasis
added) (quoting N.J.A.C. 5:23-2.24(a)(1) and (3)).
19 A-1309-13T4
Applying these definitions, we find no error in either of the
judges' determinations in this matter.
Affirmed.
20 A-1309-13T4