MAURO SQUICCIARINI VS. BOROUGH OF CLOSTER (L-6202-18, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0822-19
MAURO SQUICCIARINI,
Plaintiff-Appellant,
v.
BOROUGH OF CLOSTER,
COUNTY OF BERGEN and
TEMPLE EMANU-EL OF
CLOSTER, INC.,
Defendants-Respondents.
__________________________
Argued April 21, 2021 – Decided July 2, 2021
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-6202-18.
John J. Segreto argued the cause for appellant (Segreto
& Segreto, LLP, attorneys; John J. Segreto, of counsel
and on the briefs).
Mary C. McDonnell and Edward T. Rogan argued the
cause for respondent Borough of Closter (Pfund
McDonnell, PC, and Rogan & Associates, LLC,
attorneys; Mary C. McDonnell and Edward T. Rogan,
on the brief).
Howard D. Geneslaw argued the cause for respondent
Temple Emanu-El of Closter (Gibbons, PC, attorneys;
Howard D. Geneslaw, of counsel and on the brief;
Kevin W. Weber, on the brief).
William G. Brown IV, Assistant Bergen County
Counsel, argued the cause for respondent County of
Bergen (Julien X. Neals, County Counsel, attorney;
William G. Brown, IV, of counsel and on the brief).
PER CURIAM
The Borough of Closter's (Borough) Zoning Officer and Zoning Board of
Adjustment (Board) denied plaintiff Mauro Squicciarini's request to construct a
residential dwelling on his two landlocked lots (hereinafter "property") that were
created pursuant to a 1928 Closter Park Estates subdivision plan, which allowed
improvement on lots in accordance with local regulations. Squicciarini did not
appeal the decisions but later filed an action in lieu of prerogative writs against
defendants County of Bergen (County); the Temple of Emanu-El, Inc. (Temple),
the adjacent property owner; and the Borough. Squicciarini appeals the trial
judge's order granting defendants' motions for summary judgment dismissing
the action and denying his cross-motion for summary judgment. We affirm.
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I
Squicciarini obtained clear title to the property (Block 1810, Lots 6 and
7) in the Borough by court order on March 14, 2014.1 The property was created
pursuant to a 1928 Closter Park Estates subdivision plan, which allowed
improvement on the lots in accordance with local regulations. Squicciarini
thereafter applied for a permit to construct a single-family residential dwelling
(hereinafter "dwelling") on the property relying upon the Borough's Zoning
Ordinance §200-71(D), enacted after the subdivision plan was created as the
municipality's first zoning ordinance. The ordinance contained a "grandfather
clause" (hereinafter "Section 1 of the ordinance") 2 providing in part:
(1) Any plot, either in District No. 1, Residence Area
A, or District No. 2, Residence Area B, may be
improved with a building in accordance with other
regulations of its district, provided that such plot or
parcel shall, prior to the date of the passage of this
chapter, fulfill either of the following requirements:
1
In 2005, Squicciarini filed suit to force the Temple to remove a fence it
installed in the 1990s, at the Borough's request, when the Temple built a
synagogue adjacent to his property. The suit was dismissed because Squicciarini
did not have clear title to the property.
2
We recognize Squicciarini and the trial judge did not intend to be insensitive,
but we decline to utilize this term because of its prejudiced origins. See
Webster's Third New Int'l Dictionary 987 (2002) (definition of "grandfather
clause"); Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court
and Race in the Progressive Era, 82 Colum. L. Rev. 835 (1982).
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a. Said parcel shall have existed as a separate parcel and
shall have constituted a legal building plot prior to the
passage of this chapter, provided that the owner thereof
owns no adjacent land which may be included as part
of the plot in question; or
b. Said plot was included as part of a subdivision
heretofore approved by the Planning Board of the
Borough of Closter and constituted a legal building plot
in said subdivision prior to the passage of this chapter.
[Zoning Ordinance §200-71(D) (emphasis added).]
The Borough's zoning officer denied Squicciarini a permit to build
because his property "did not front on an improved street[;] it was landlocked[;]
and it did not meet the bulk requirements." Squicciarini then applied to the
Board for substantial bulk variance relief to construct the dwelling. The Temple
objected to the application as an adjacent property owner. 3 After conducting six
hearings over a nine-month period, the Board denied the application on October
18, 2017, suggesting that he can proceed with a (c)(2) planning variance.
Squicciarini did not appeal the Board's denial of his application. Instead,
ten months later, he filed a four-count action in lieu of prerogative writs against
the Borough, the County, and the Temple. The suit alleged that "[d]efendants'
3
Before Squicciarini acquired title to the property, the Temple obtained final
site approval from Closter's Planning Board and the County Planning Board to
build a synagogue on its property. Squicciarini did not appeal the approval.
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actions constitute continuing interference with and a trespass on the
[Squicciarini]'s easement rights in Hartford Street to access [the] [p]roperty.
The suit sought judgment "[d]eclaring that [Squicciarini] has the right, pursuant
to the Closter Park Estates subdivision of 1928, to construct a residential
dwelling on the [p]roperty" and "[c]ompelling . . . [d]efendants to remove all of
the encroachments, impediments and conditions that they have approved,
constructed or placed across or on Hartford Street to allow [him] unfettered
access to Hartford Street," which were obstructions in violation of his "easement
rights in Hartford Street." In addition, the suit sought judgment against
defendants for compensatory damages, attorney's fees, and costs, with a separate
count demanding judgment against the Borough "for . . . the value of [the]
[p]roperty."
Following a brief discovery period, defendants separately filed summary
judgment motions followed by Squicciarini's cross-motion for summary
judgment against defendants. Defendants' motions were granted and
Squicciarini's cross-motion was denied. In her written decision, the motion
judge determined:
. . . [T]he Borough and County's belief [is] based
in law. N.J.S.A. 59:2-5 provides public entities are
[ ]
" not liable for an injury caused by the issuance, denial,
suspension or revocation of, or by the failure or refusal
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to issue, deny, suspend or revoke any permit, license,
certificate, approval, order or similar authorization
where the public entity or public employee is
authorized by law to determine whether or not such
authorization should be issued, denied, suspended or
revoked.["]
Having failed to appeal the decision of the zoning
officer and the [Board], [Squicciarini] now comes
before the court seeking an order compelling the
Borough to issue a building permit for a "normal sized
house" based upon [Section 1 of the ordinance] and the
1928 paper subdivision [plan].
....
. . . However, contrary to Section 1 of the
ordinance, the [Board] found that the building proposed
by plaintiff did not meet the requirements of the other
regulations of its district. It may be that no building
can be approved for plaintiff's property on account of
zoning regulations and characteristics of the property
. . . . What is before this court is a demand that the
court direct the Borough to issue a building permit in
the face of [Squicciarini's] failure to timely appeal the
denial of his application to the zoning board after the
[z]oning officer refused to issue him a building permit.
....
[Squicciarini] has forfeited his right to a review
of the Board's action by failing to appeal. The court
will not, on a record that is remarkable for its sparsity,
grant the relief requested.
Squicciarini appealed.
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II
When reviewing a grant of summary judgment, we adhere to the same
standard as the motion judge. Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 405 (2014). A court should only grant summary judgment when the record
reveals "no genuine issue as to any material fact" and "the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-2(c). When both
parties move for summary judgment, we consider the facts in a light most
favorable to the party whose motion was denied. Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 523 (1995). We accord no deference to the trial judge's
legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citation
omitted).
Before us, Squicciarini first argues that his claims are not barred because
he did not timely challenge the Board's denial of his bulk variance. He does not
cite any law in support of his contention but rather contends the motion judge
did not cite any legal authority for her ruling. We disagree.
It is undisputed that Squicciarini did not appeal the zoning officer's
decision denying the issuance of a building permit to the Board within twenty
days as required by N.J.S.A. 40:55D-72(a). Allowing him to contest the zoning
officer's decision without a timely appeal to the Board by pursuing his challenge
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as an action in lieu of prerogative writs, would nullify the time constraint
provided by N.J.S.A. 40:55D-72(a). See Sitkowski v. Zoning Bd. of Adjustment
of Borough of Lavallette, 238 N.J. Super. 255, 260 (App. Div. 1990)
("[Defendant, neighboring property owner,] should not be permitted to subvert
the time constraints . . . imposed upon administrative appeals [under N.J.S.A.
40:55D-70] by belatedly asserting that he sought only an interpretation of a
zoning ordinance.) Thus, Squicciarini cannot circumvent his failure to appeal
the zoning officer's decision by instead seeking relief through an action in lieu
of prerogative writs.
In addition, the motion judge correctly dismissed Squicciarini's action in
lieu of prerogative writs as time barred. An action in lieu of prerogative writs
must be filed within forty-five days "after the accrual of the right to the review,
hearing or relief claimed." R. 4:69-6(a). And specifically, it "shall [not] be
commenced . . . to review a determination of a . . . [zoning] board of adjustment,
after [forty-five] days from the publication of a notice once in the official
newspaper of the municipality or a newspaper of general circulation in the
municipality. . . ." R. 4:69-6(b)(3).
Generally, actions in lieu of prerogative writs are not "maintainable as
long as there is available a right of review before an administrative agency which
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has not been exhausted." R. 4:69-5. However, a trial judge may excuse the
requirement to exhaust administrative remedies or extend the forty-five-day
statute of limitations in the interests of justice. Borough of Princeton v. Bd. of
Chosen Freeholders of Cnty. of Mercer, 169 N.J. 135, 152 (2001) ("Rule 4:69-
6(c) . . . authorizes enlargement 'where it is manifest that the interest of justice
so requires'"); 21st Century Amusements, Inc. v. D'Alessandro, 257 N.J. Super.
320, 322 (App. Div. 1992) ("R[ule] 4:69-5 requires a litigant . . . to exhaust local
administrative remedies requirement . . . unless 'it is manifest that the interest of
justice requires otherwise . . . .'"). In addition:
[T]he doctrine of exhaustion of administrative remedies
serves three primary goals: (1) the rule ensures that
claims will be heard, as a preliminary matter, by a body
possessing expertise in the area; (2) administrative
exhaustion allows the parties to create a factual record
necessary for meaningful appellate review; and (3) the
agency decision may satisfy the parties and thus obviate
resort to the courts.
[City of Atl. City v. Laezza, 80 N.J. 255, 265 (1979).]
"It is axiomatic that the exhaustion of remedies requirement is neither
jurisdictional nor absolute." 21st Century Amusements, 257 N.J. Super. at 322
(citing Matawan Borough v. Monmouth Cnty. Bd. of Tax'n, 51 N.J. 291, 296
(1968)). "[T]he exhaustion of remedies requirement is a rule of practice
designed to allow administrative bodies to perform their statutory functions in
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an orderly manner without preliminary interference from the courts." Brunetti
v. Borough of New Milford, 68 N.J. 576, 588 (1975) (citation omitted). A judge
may enlarge the forty-five days to appeal only where interests of justice warrant,
R. 4:69-6(c), due to: "(1) important and novel constitutional questions; (2)
informal or ex parte determinations of legal questions by administrative
officials; and (3) important public rather than private interests which require
adjudication or clarification.'" Borough of Princeton, 169 N.J. at 152 (quoting
Brunetti, 68 N.J. at 586). None of these exceptions apply here.
To overlook the forty-five-day time limitation would circumvent the court
rule's purpose to promote the important policy of repose and prevent parties from
resting on their rights. See Borough of Princeton, 169 N.J. at 152-53 (2001)
(citation omitted). Squicciarini's suit cannot be used to circumvent his failure
to pursue his judicial remedy by appealing the Board's decision. See Rezem
Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 107 (App.
Div. 2011) (holding a "substantive due process claim in a land use dispute
requires both governmental misconduct that 'shocks the conscience' and
exhaustion of remedies available under our land use law").
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III
Squicciarini argues that he did not make claims under the Tort Claims Act
("TCA"), N.J.S.A. 59:1-1 to 12-3, against the Borough and the County; thus, the
judge erred in dismissing his claims for compensatory damages against them
based on immunities afforded by N.J.S.A. 59:2-5. In support, he cites N.J.S.A.
59:1-4, which provides: "Nothing in this act shall affect liability based on
contract or the right to obtain relief other than damages against the public entity
or one of its employees." He also relies upon First Am. Title v. Rockaway, 322
N.J. Super. 583, 595 (Ch. Div. 1999), and Slocum v. Borough of Belmar, 233
N.J. Super. 437, 440 (Law. Div. 1989), for the proposition that "actions for
equitable relief are not subject to the Tort Claims Act." There is no merit to
these arguments.
Squicciarini's action in lieu of prerogative writs seeks declaratory relief,
which is not applicable to the TCA. N.J.S.A. 59:1–4; see also Blazer Corp. v.
N.J. Sports & Exposition Auth., 195 N.J. Super. 542, 549 (Law Div. 1984). His
suit also speaks to tort claims in demanding compensatory damages and
attorney's fees and costs against the Borough and the County for their alleged
interference with and trespass on lands resulting in the denial of his right to
construct the dwelling. The judge therefore correctly applied immunity to the
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governmental bodies under N.J.S.A. 59:2-5. This immunity is "pervasive and
applies to all phases of the licensing function," whether "discretionary or
ministerial," and extends both to the actual act of issuance of a permit or license
and the underlying decision-making process. Malloy v. State, 76 N.J. 515, 520
(1978). Thus, the actions by the Borough and the County pertaining to
Squicciarini's efforts to build on the property cannot seek monetary damages
due to alleged tortious conduct. See id. at 521.
In addition, assuming TCA immunities did not apply, Squicciarini failed
to file a tort claim notice within ninety days of the Board's denial of his variance
application. See N.J.S.A. 59: 8-8. Nor did he make a request to file a late tort
claim notice. See N.J.S.A. 59:8-9.
IV
Lastly, we briefly address Squicciarini's contention that because there was
no ordinance restricting his building on the property at the time it was created
in 1928, Section 1 of the ordinance exempts him from any current zoning
ordinances, thereby making the property a nonconforming lot under N.J.S.A.
40:55D-54 and not requiring him to seek a variance from the Board. He submits
4
N.J.S.A. 40:55D-5 defines a "[n]onconforming lot" as "a lot, the area,
dimension or location of which was lawful prior to the adoption, revision or
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that the property "existed as a legal building lot prior to the adoption of Closter's
[z]oning [o]rdinance in 1940." These contentions should have been raised in an
appeal of the Board's October 18, 2017 decision denying Squicciarini's
application to build the dwelling.
Squicciarini did not have an absolute right to build on his property, as he
contends. Section 1 of the ordinance unequivocally stated that building
improvements on the lots created by the 1928 Closter Park Estates subdivision
plan must be in accordance with other regulations of the Borough. The Board's
denial of Squicciarini's application to build was due to its determination that his
building plans were inconsistent with its zoning ordinances. Because
Squicciarini did not challenge that denial on appeal, we do not address the
specifics of his application. Filing an action in lieu of prerogative writs was an
improper means to seek reversal of the Board's action.
Affirmed.
amendment of a zoning ordinance, but fails to conform to the requirements of
the zoning district in which it is located by reason of such adoption, revision or
amendment."
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