JOHN THOMPSON VS. MANSFIELD TOWNSHIP(L-0412-14, WARREN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4087-15T4
JOHN THOMPSON AND
CAROL THOMPSON,
Plaintiffs-Appellants,
v.
MANSFIELD TOWNSHIP, a
Municipal Corporation of
the State of New Jersey,
ROUTE 57 AUTO SALVAGE, INC.
and NICTO'S SERVICE, INC.,
d/b/a WOODLAND AUTO SALES,
Defendants-Respondents.
_____________________________
Argued September 28, 2017 – Decided November 20, 2017
Before Judges Simonelli, Haas and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Warren County, Docket
No. L-0412-14.
Allen Hantman argued the cause for appellant
(Morris & Hantman, attorneys; Mr. Hantman, on
the briefs).
James F. Moscagiuri argued the cause for
respondent Mansfield Township (Lavery,
Selvaggi, Abromitis & Cohen, attorneys; Mr.
Moscagiuri, on the brief).
Paul E. Rusen argued the cause for respondents
Route 57 Auto Salvage, Inc. and Nicto's
Service, Inc., d/b/a Woodland Auto Sales
(Collins Toner & Rusen, LLC, attorneys, join
in the brief of respondent Mansfield
Township).
PER CURIAM
Defendants Route 57 Auto Salvage, Inc. and Nicto's Service,
Inc. (collectively, Route 57) operate an auto salvage yard and
used car dealership on property located across the street from
property owned by plaintiffs John Thompson and Carol Thompson in
Mansfield Township. The Township's Zoning Officer determined that
this use of the property constituted a legal pre-existing, non-
conforming use. Plaintiffs claim that Route 57, which acquired
the property in 2008, expanded the use beyond the area of the
permitted use in violation of the zoning ordinances.
Beginning in 2008, plaintiffs complained to the Township that
Route 57 illegally used the property as a used car dealership and
expanded the operation of the auto salvage yard beyond the
permitted area.1 In March 2008, the Township's Zoning Officer
investigated plaintiffs' complaints and found the property was
legally used as an auto salvage yard and used car dealership prior
1
We shall sometimes collectively refer to Route 57 and the
Township as defendants.
2 A-4087-15T4
to the effective date of the current zoning scheme prohibiting
junk yards. The Zoning Officer concluded that such use was a
protected pre-existing, non-conforming use. In January 2010, the
Township's new Zoning Officer confirmed that use of the property
as an auto salvage yard and used car dealership was a protected
pre-existing, non-conforming use.
Plaintiffs appeared at Township Committee meetings and
reiterated their complaints about Route 57's alleged illegal use
of the property. The Zoning Officer investigated the complaints
and issued notices of violation to Route 57 when he found
violations. The violations were resolved by a Municipal Court
order, which imposed certain conditions on Route 57's use of the
property. The Zoning Officer conducted site inspections to carry
out the substance of the order, and imposed additional conditions.
Route 57 complied with all conditions.
Plaintiffs did not administratively appeal the Zoning
Officer's decision. In December 2014, they filed a complaint in
lieu of prerogative writs. Plaintiffs sought mandamus relief
compelling the Township to enforce its zoning ordinances, and
issue a complaint and cease and desist order to Route 57 for zoning
violations and misuse of the property. Plaintiffs also sought to
enjoin Route 57 from using the property beyond the area of the
permitted use for any commercial purpose. In their respective
3 A-4087-15T4
answers, defendants asserted that the complaint failed to state a
claim upon which relief can be granted and was time-barred.
The parties appeared at a case management conference on
February 26, 2015, and discussed whether plaintiffs had a
cognizable cause of action against defendants. The court entered
a case management order that day, requiring the parties to submit
briefs and supporting documents addressing this issue. No one
objected to this procedure. In a June 30, 2015 amended case
management order, the court extended plaintiffs' time to submit
their brief and supporting documents for sixty days, with
defendants submitting their briefs and supporting documents thirty
days thereafter.
All parties submitted briefs and supporting certifications
and documents. Route 57's supporting certification confirmed that
the property had been legally used as an auto salvage yard and
used car dealership since 1953. On October 13, 2016, the parties
appeared at a conference, where they discussed their respective
submissions with the court. The record does not reveal that any
party requested oral argument or a plenary hearing.
The court entered an order on November 4, 2015, dismissing
the complaint with prejudice as to the Township. In a written
statement of reasons, the court found that plaintiffs' claim
against the Township was precluded as a matter of law because
4 A-4087-15T4
mandamus was not available for discretionary acts where the Zoning
Officer properly exercised his discretion in determining that use
of the property as an auto salvage yard and a used car dealership
constituted a pre-existing, non-conforming use consistent with
historical use. The court also found that pursuant to Rule 4:69-
5, an action in lieu of prerogative writs was not maintainable
because plaintiffs failed to exhaust their administrative remedies
under N.J.S.A. 40:55D-70 by first appealing the Zoning Officer's
decision to the Township's Zoning Board of Adjustment (Board).
Lastly, the court found the complaint was untimely under Rule
4:69-6(b)(3).
Plaintiffs filed a motion for reconsideration, arguing
"[t]here was no motion filed by the defendants, there was no
argument on the record, and there were no reasons set forth on any
record for the entry of the November 4, 2015 [o]rder." Plaintiffs
also argued "that the methodology used here to dismiss the case
was inconsistent with the Rules of Court[;]" however, they did not
identify any Rule that was violated.
The court entered an order on January 8, 2016, denying the
motion. In a written statement of reasons, the court found that
the methodology used to determine whether plaintiffs had a
cognizable claim against defendants did not violate the Rules of
Court; plaintiff was properly noticed and consented to the
5 A-4087-15T4
methodology used; the parties submitted briefs; and the court had
issued a written statement of reasons. The court did not find its
ruling was plainly incorrect or that it failed to consider relevant
evidence, and found plaintiffs presented no new information to
warrant reconsideration.
We subsequently denied plaintiffs' motion for leave to
appeal. Thereafter, in an April 20, 2016 order, the court sua
sponte dismissed the complaint with prejudice. In a written
statement of reasons, the court found the complaint had been
dismissed with prejudice as to the Township, and a prerogative
writs action could not continue against Route 57 without the
municipal defendant.
Plaintiffs appeal from the January 8, 2016 and April 20, 2016
orders.2 On appeal, plaintiffs contend the court improperly
dismissed this action without a hearing and fact-finding. We
disagree. Plaintiffs had notice of defendants' claim that the
complaint failed to state a claim upon which relief can be granted,
had notice of, and did not object to, the procedure the court
2
Plaintiffs did not address the dismissal of the complaint with
prejudice as to Route 57 in their merits brief. The issue,
therefore, is deemed waived. N.J. Dep't of Envtl. Prot. v. Alloway
Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div.), certif. denied,
222 N.J. 17 (2015); Pressler & Verniero, Current N.J. Court Rules,
comment 5 on R. 2:6-2 (2018).
6 A-4087-15T4
employed to address this issue, and were afforded ample and
meaningful opportunity to respond. See Klier v. Sordoni Skanska
Const. Co., 337 N.J. Super. 76, 84 (App. Div. 2001) (citations
omitted). Further, the judge made factual and legal determinations
in a written opinion.
That being said, we address plaintiffs' remaining contention
that because their complaint set forth a cause of action, the
court erred in denying reconsideration. Plaintiffs argue there
were no administrative remedies available, and N.J.S.A. 40:55D-70
does not provide an appropriate remedy against a municipality.
Plaintiffs also argue that the forty-five day limitation period
under Rule 4:69-6(b)(3) does not apply because they received no
notice of the Zoning Officer's actions.3
We have determined that reconsideration
is not appropriate merely because a litigant
is dissatisfied with a decision of the court
or wishes to reargue a motion, but should be
utilized only for those cases which fall into
that narrow corridor in which either 1) the
[c]ourt has expressed its decision based upon
a palpably incorrect or irrational basis, or
2) it is obvious that the [c]ourt either did
not consider, or failed to appreciate the
3
Plaintiffs rely on an unpublished opinion to also argue that
the Zoning Officer lacked authority to decide the status of the
property's pre-existing, non-conforming use after one year of the
adoption of the ordinance that rendered the use nonconforming.
Because unpublished opinions do not constitute precedent or bind
us, we reject this argument. Trinity Cemetery Ass'n v. Twp. of
Wall, 170 N.J. 39, 48 (2001); R. 1:36-3.
7 A-4087-15T4
significance of probative, competent
evidence.
[Palombi v. Palombi, 414 N.J. Super. 274, 288
(App. Div. 2010) (citations omitted).]
We will not disturb a trial judge's denial of a motion for
reconsideration absent a clear abuse of discretion. Pitney Bowes
Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382
(App. Div. 2015) (citation omitted). An "abuse of discretion only
arises on demonstration of 'manifest error or injustice[,]'"
Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres,
183 N.J. 554, 572 (2005)), and occurs when the trial judge's
"decision is 'made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible
basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div.
2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571
(2002)).
We agree with plaintiffs that the forty-five day limitation
period under Rule 4:69-6(b)(3) does not apply. The Rule requires
"the publication of a notice once in the official newspaper of the
municipality or a newspaper of general circulation in the
municipality[.]" The Rule does not permit verbal or constructive
notice. There is no evidence of a notice published in a municipal
newspaper of the Zoning Officer's determination. Accordingly, the
court erred in finding the complaint was untimely.
8 A-4087-15T4
Nevertheless, the court properly dismissed the complaint with
prejudice as to the Township as a matter of law. Citizens may
bring prerogative writ actions to challenge agency decisions or
actions. Alexander's Dep't Stores v. Paramus, 125 N.J. 100, 107
(1991) (citation omitted). The court's jurisdiction extends not
only to an agency's action, but also to inaction. Caporusso v.
N.J. Dep't of Health & Senior Servs., 434 N.J. Super. 88, 101
(App. Div. 2014) (citation omitted). "As is the case with all
equitable remedies, the court must exercise its discretionary
authority to issue a writ of mandamus carefully, in furtherance
of essential justice, and 'subject to important and well-defined
qualifications.'" Mullen v. Ippolito Corp., 428 N.J. Super. 85,
102 (App. Div. 2012) (quoting Garrou v. Teaneck Tryon Co., 11 N.J.
294, 302 (1953)).
"To bring an action in lieu of prerogative writs, a plaintiff
must show that the appeal could have been brought under one of the
common-law prerogative writs[.]" Vas v. Roberts, 418 N.J. Super.
509, 522 (App. Div. 2011) (quoting Alexander's Dep't Stores, supra,
125 N.J. at 107). "Included among the common law prerogative
writs is mandamus, which is a writ directing government officials
to carry out required ministerial duties." Caporusso, supra, 434
N.J. Super. at 100 (quoting In re Application of LiVolsi, 85 N.J.
576, 594 n.18 (1981)).
9 A-4087-15T4
"A ministerial duty is one that 'is absolutely certain and
imperative, involving merely the execution of a set task, and when
the law which imposes it prescribes and defines the time, mode and
occasion of its performance with such certainty that nothing
remains for judgment or discretion.'" Id. at 102 (quoting Ivy Hill
Park Apartments v. N.J. Prop. Liab. Ins. Guar. Ass'n, 221 N.J.
Super. 131, 140 (App. Div. 1987), certif. denied, 110 N.J. 188(1988)). "In other words, 'mandamus is an appropriate remedy (1)
to compel specific action when the duty is ministerial and wholly
free from doubt, and (2) to compel the exercise of discretion, but
not in a specific manner.'" Ibid. (quoting Vas, supra, 418 N.J.
Super. at 522). However,
[m]andamus is not an available remedy if the
duty to act is a discretionary one and the
discretion has been exercised. Absent a
showing that there was a lack of good faith
or other invidious reason for the action or
inaction, mandamus cannot be invoked to force
[an] agency to prosecute.
[Moss v. Shinn, 341 N.J. Super. 327, 341 (Law
Div. 2000), aff'd, 341 N.J. Super. 77 (App.
Div. 2001).]
Further, mandamus relief to compel municipal officials to
enforce zoning ordinances is not absolute. "[B]oth the plaintiff's
right to the relief requested and the defendant's duty to perform
it must 'legally be clear.' Mandamus relief 'must be denied where
equity or paramount public interest so dictates or there is other
10 A-4087-15T4
adequate relief available.'" Mullen, supra, 428 N.J. Super. at
102 (quoting Garrou, supra, 11 N.J. at 302). "[T]he 'relief must
realistically be adequate and the theoretical possibility of
indictment of the public official is no barrier to mandamus.'"
Ibid. (quoting Garrou, supra, 11 N.J. at 303). Those seeking
mandamus relief to enforce a zoning ordinance must show:
(1) . . . that there has been a clear violation
of a zoning ordinance that has especially
affected the plaintiff; (2) a failure of
appropriate action despite the matter having
been duly and sufficiently brought to the
attention of the supervising official charged
with the public duty of executing the
ordinance; and (3) the unavailability of other
adequate and realistic forms of relief.
[Id. at 103 (citing Garrou, supra, 11 N.J. at
302-04).]
Mandamus was not an appropriate remedy in this case.
Plaintiffs sought to compel the Township to issue a complaint and
cease and desist order to Route 57 for zoning violations and misuse
of the property. The Township's duty to do so was not ministerial.
Rather, it was discretionary and plaintiffs sought to compel the
Township to exercise its discretion in a specific manner, which
the law prohibits. Further, the discretionary act had been
exercised by the Zoning Officer, and there was no showing of a
lack of good faith or other invidious reason for his action or
inaction.
11 A-4087-15T4
In addition, there was no clear violation of the zoning
ordinances. Route 57's use of the property as an auto salvage
yard and used car dealership is a protected pre-existing, non-
conforming use. When plaintiffs complained that Route 57 expanded
its use of the property beyond the permitted area, their complaints
did not go unaddressed. Rather, the Zoning Officer investigated
the complaints, issued notices of violations when appropriate, and
imposed conditions on Route 57's use of the property in accordance
with the historical, permitted use. The Zoning Officer took
appropriate action and enforced the zoning ordinances. Thus,
plaintiffs' complaint in lieu of prerogative writs was properly
dismissed as a matter of law.
In addition, if plaintiffs were dissatisfied with the Zoning
Officer's decisions or refusal to enforce the zoning ordinances,
there was administrative relief available to them. Municipal
zoning boards of adjustment are authorized 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[.]" N.J.S.A. 40:55D-70(a) (emphasis added). A
formal determination from the administrative officer is not
required for an appeal to the board of adjustment. "Appeals to
the board of adjustment may be taken by any interested party
12 A-4087-15T4
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." N.J.S.A. 40:55D-72(a) (emphasis
added). "Such appeal shall be taken within [twenty] days by filing
a notice of appeal with the officer from whom the appeal is taken
specifying the grounds of such appeal." Ibid."Except where it is manifest that the interest of justice
requires otherwise, actions [in lieu of prerogative writs] shall
not be maintainable as long as there is available a right of review
before an administrative agency which has not been exhausted." R.
4:69-5; see also Mullen, supra, 428 N.J. Super. at 104. Exceptions
to this requirement include cases where only a question of law
needs to be determined, administrative remedies would be futile
or result in irreparable harm, the agency’s jurisdiction is
doubtful, and an overriding public interest warrants a swift
judicial determination. Abbott v. Burke, 100 N.J. 269, 298 (1985)
(citations omitted). None of these exceptions applies here.
Whether Route 57 exceeded the parameters of the permitted
non-conforming use is a question of fact the Board was best
equipped to determine. Plaintiffs offer no evidence suggesting
that an appeal to the Board would have been futile or resulted in
irreparable harm. Plaintiffs also do not argue that an overriding
public interest warranted judicial determination. Given that
13 A-4087-15T4
N.J.S.A. 40:55D-70(a) and N.J.S.A. 40:55D-72(a) confer the power
to hear any appeals from a zoning officer's decision or refusal
to act to the board of adjustment and none of the Abbott exceptions
apply, plaintiffs were obligated to exhaust their administrative
remedies before filing suit. R. 4:69-5. Their failure to do so
warranted dismissal of their complaint with prejudice as a matter
of law.
Affirmed.
14 A-4087-15T4