Opinion
DOCKET NO. A-4688-14T2
11-29-2016
SEVEN PLUS ONE, LLC, a New Jersey limited liability company, Plaintiff-Appellant, v. CAROL SELLERS, an individual; the TOWNSHIP OF ROBBINSVILLE, a municipal corporation of the State of New Jersey; the ZONING BOARD OF THE TOWNSHIP OF ROBBINSVILLE; and the TOWNSHIP COUNCIL OF THE TOWNSHIP OF ROBBINSVILLE, Defendants-Respondents.
Bryan M. Buffalino argued the cause for appellant (Stark & Stark, P.C., attorneys; Mr. Buffalino, of counsel and on the briefs). Mark M. Roselli argued the cause for respondent Township of Robbinsville and Township Council of the Township of Robbinsville (Roselli Griegel Lozier & Lazzaro, P.C., attorneys; Mr. Roselli, of counsel; Steven W. Griegel, on the brief). Michael P. Balint argued the cause for respondent Carol Sellers.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Fisher and Leone. On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Mercer County, Docket No. C-0075-13. Bryan M. Buffalino argued the cause for appellant (Stark & Stark, P.C., attorneys; Mr. Buffalino, of counsel and on the briefs). Mark M. Roselli argued the cause for respondent Township of Robbinsville and Township Council of the Township of Robbinsville (Roselli Griegel Lozier & Lazzaro, P.C., attorneys; Mr. Roselli, of counsel; Steven W. Griegel, on the brief). Michael P. Balint argued the cause for respondent Carol Sellers. PER CURIAM
Plaintiff Seven Plus One, LLC appeals the May 8, 2015 dismissal of its amended complaint against defendants Carol Sellers, the Township of Robbinsville (the Township) and the Township Council of the Township of Robbinsville (the Council). Plaintiff also appeals the denial of its request for leave to file a second amended complaint. We affirm.
I.
The following facts are alleged in plaintiff's amended complaint, supplemented with certain undisputed facts. In the mid-1980s, plaintiff purchased a single tract of undeveloped land, totaling approximately 19.5 acres, with some frontage on Meadowbrook Road, a public roadway maintained by the Township. Meadowbrook Road is the only public road providing access to that property.
In 2001, plaintiff subdivided the property into two units pursuant to the New Jersey Condominium Act, N.J.S.A. 46:8B-1 to -38. Plaintiff sold Unit One, a five-acre parcel with most of the Meadowbrook Road frontage, to RAS Processing Equipment (RAS). Unit One contains an industrial building, a parking lot, and an access driveway with Meadowbrook Road. Plaintiff retained Unit Two, approximately 14.5 acres of undeveloped land (Property). The Property had only limited frontage along Meadowbrook Road, being largely separated from the road by the residential properties of three neighbors, including Sellers. Plaintiff does not have access rights to RAS's driveway or parking lot.
In 2006 plaintiff sought to develop the Property by constructing a "flexible warehouse," a building with warehouse/storage space on the base level and office space on the upper levels, intended for light-commercial use. Plaintiff obtained a use variance from the Robbinsville Township Zoning Board (the Board). Thereafter, plaintiff sought approval for its site plan. The Board held several public hearings between March and June 2010. One issue was the placement of a driveway, which would lead from Meadowbrook Road and circulate traffic within the Property.
On June 3, 2010, the Board approved plaintiff's site plan, subject to several conditions, including that plaintiff maintain a sight triangle at the intersection of the proposed driveway and Meadowbrook Road. Paragraph 24 of the Board's June 3, 2010 resolution imposed conditions (d) and (e):
d. Applicant must provide a proper sight triangle for the property to the satisfaction
of the Board's traffic engineer in cooperation with the neighbor it affects.
e. Applicant must work with its neighboring properties and Board professionals to make sure the sight triangle is adequate for ingress and egress at the site. If for some reason the sight triangle cannot be made satisfactorily clear, the applicant must come back before the Board to discuss further remedies. Until those remedies are satisfactory to the Board, the application cannot move forward.
The neighbor affected by the proposed sight triangle was Sellers, whose lot was adjacent to the tongue of the Property on which the proposed driveway would connect with Meadowbrook Road. Sellers's property has approximately forty mature arborvitae, a type of evergreen tree, aligned in a row along Meadowbrook Road. A portion of the arborvitae are within the line of sight between the proposed driveway and Meadowbrook Road, and are the sole obstruction in the sight triangle required by the resolution. The removal of those arborvitae would satisfy condition (d).
Plaintiff sought to have Sellers or the Township remove the arborvitae obstructing the sight triangle, but both refused. Despite the instruction from the Board in condition (e) of the resolution, plaintiff did not "come back before the Board to discuss further remedies."
In 2013, plaintiff filed its original complaint and filed an amended complaint shortly thereafter. Plaintiff's amended complaint contained five counts. Count one sought a judgment against Sellers for maintaining a nuisance, and sought an injunction compelling her to remove the obstruction. Count two sought a similar injunction against Jersey Central Power & Light (JCP&L) for the maintenance of the nuisance in its utility right-of-way. Count three sought an injunction against the Township, the Council, and the Board to compel them to exercise their police and statutory powers to abate the nuisance. Count four sought an injunction against the Township and the Board compelling them to void or modify condition (d) in the resolution. In the alternative, count five demanded just compensation for the value of the Property from the Township for reverse condemnation of private property.
JCP&L's motion to dismiss count two was granted in August 2013.
In January 2015, plaintiff moved to file a second amended complaint, adding two counts seeking injunctive relief. In the first proposed count, plaintiff sought an injunction against Sellers for violating Code of the Township of Robbinsville (Code) § 142-36(D), which sets a three-foot height limit for a "wall or fence" in a front yard. In the second proposed count, plaintiff sought an injunction against the Township to compel it to enforce §142-36(D). At that time, the remaining defendants — Sellers, the Board, the Township, and the Council — filed cross-motions to dismiss the complaint under Rule 4:6-2(e).
In a written opinion, the trial court granted the remaining defendants' motions to dismiss, and denied plaintiff's request for leave to file a second amended complaint. Plaintiff appeals, arguing the following:
THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS OR BY GRANTING DEFENDANTS' R. 4:6-2(e) MOTIONS AND DISMISSING ALL CLAIMS ASSERTED BY SEVEN PLUS ONE, LLC.
POINT ONE: THE TRIAL COURT ERRED IN HOLDING THAT SELLERS HAS NOT MAINTAINED A NUISANCE TO SEVEN PLUS ONE BY PLANTING THE SUBJECT ARBORVITAES.
a. PRIVATE NUISANCE
b. PUBLIC NUISANCE
POINT TWO: THE TRIAL COURT ABUSED ITS DISCRETION BY CONCLUDING AS A MATTER OF LAW THAT THE ROW OF ARBORVITAE DOES NOT CONSTITUTE A FENCE OR WALL IN VIOLATION OF THE TOWNSHIP CODE.
POINT THREE: GENUINE ISSUES OF MATERIAL FACT SHOULD HAVE PRECLUDED THE COURT FROM GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS AND DISMISSING ALL CAUSE[S] OF ACTION ASSERTED BY SEVEN PLUS ONE.
POINT FOUR: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO ALLOW THE
PLAINTIFF'S REASONABLE REQUEST FOR LEAVE TO AMEND THE COMPLAINT.
II.
Plaintiff's appellate briefs do not raise any arguments concerning the dismissal of its claims against JCP&L or the Board in counts two and four, or its claims on counts four and five seeking to void or modify condition (d) or alleging inverse condemnation. We therefore address only the dismissal of its nuisance claims in counts one and three against the Township, the Council, and Sellers.
Defendants moved to dismiss plaintiff's claims for "failure to state a claim upon which relief can be granted." R. 4:6-2(e). The trial court granted their motions "to dismiss the complaint." Nonetheless, plaintiff contends that defendants' motions to dismiss under Rule 4:6-2(e) were converted to summary judgment motions because Sellers submitted a certification. "The primary distinction between a motion under [Rule] 4:6-2(e) and [Rule] 4:46 is that the former is based on the pleadings themselves." Pressler & Verniero, Current N.J. Court Rules, comment 4.1.2 on R. 4:6-2 (2017). "If, on a motion to dismiss based on [Rule 4:6-2(e)], matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46[.]" R. 4:6-2; see, e.g., Roa v. Roa, 200 N.J. 555, 562 (2010) (applying summary judgment standard where "the motion was based upon evidence, including certifications, outside of the pleadings"). "Thus, a motion to dismiss under R. 4:6-2(e) is effectually converted into a motion for summary judgment when the court relies on facts beyond the pleadings." Jersey City Educ. Ass'n v. City of Jersey City, 316 N.J. Super. 245, 254 (App. Div. 1998), certif. denied, 158 N.J. 71 (1999).
Sellers's certification states that she has resided on her property on Meadowbrook Road since September 1962, and that the arborvitae were planted on her property in 1976, before plaintiff purchased its property on Meadowbrook Road. Plaintiff claims that the prohibition in Code § 142-36(D) has existed in the ordinance since the 1980s and that the arborvitae were planted thereafter.
Plaintiff's argument fails, however, because Sellers did not offer the certification as the means for seeking dismissal of the complaint but explicitly offered it in opposition to plaintiff's attempt to emend. Most importantly, neither Sellers nor the trial court relied on the certification in dismissing the case. Further, in issuing its order, the trial court relied solely on the complaint and gave plaintiff every reasonable inference of fact, only to conclude plaintiff failed to state a claim upon which relief could be granted. Accordingly, we treat the trial court's order as a dismissal under Rule 4:6-2(e).
"We review a grant of a motion to dismiss a complaint for failure to state a cause of action de novo, applying the same standard under Rule 4:6-2(e) that governed the motion court." Wreden v. Township of Lafayette, 436 N.J. Super. 117, 124 (App. Div. 2014). We must hew to that standard of review.
We are "limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Nostrame v. Santiago, 213 N.J. 109, 127 (2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). The test to be applied is "whether a cause of action is 'suggested' by the facts." Printing Mart, supra, 116 N.J. at 746 (citation omitted). "[A] reviewing court 'searches the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary.'" Ibid. (citation omitted). The plaintiff is "entitled to every reasonable inference of fact," and our examination of the complaint should be one "that is at once painstaking and undertaken with a generous and hospitable approach." Ibid.
III.
"Our modern concepts of public nuisance are set forth in the Restatement (Second) of Torts" (1979). In re Lead Paint Litig., 191 N.J. 405, 424 (2007). "A public nuisance is an unreasonable interference with a right common to the general public." Id. at 425 (quoting Restatement (Second) of Torts [Restatement] § 821B(1) (1979)). "In order to maintain a proceeding to enjoin [or] abate a public nuisance," a private individual "must have suffered a harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of the interference." Id. at 426 (quoting Restatement, supra, § 821C(1), (2)(a)). "Circumstances that may sustain a holding that an interference with a public right is unreasonable include . . . whether the conduct is proscribed by a statute, ordinance or administrative regulation[.]" Id. at 425 (quoting Restatement, supra, § 821B(2)(b)).
Plaintiff argued that his public nuisance claim was supported by Sellers's violation of § 142-36(D) of the Code. Section 142-36(D) states "no wall or fence shall be erected or altered so that said wall or fence shall be over three feet in height in the front yard." Plaintiff contended Sellers's arborvitae — measuring over twenty feet high — constituted a wall or fence and are therefore in violation of the Code. However, the arborvitae do not fall within the Code's definition of a fence or the common definition of a wall.
"The established rules of statutory construction govern the interpretation of a municipal ordinance." Township of Pennsauken v. Schad, 160 N.J. 156, 170 (1999). When interpreting a statute, "the statutory language [is] 'the best indicator of [the drafter's] intent.' If the plain language of the statute is clear and 'susceptible to only one interpretation,' then the Court should apply that construction." In re Expungement Petition of J.S., 223 N.J. 54, 72 (2015) (citation omitted) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).
The Code defines certain terms in Code § 142-7(B) and also provides that "[a]ny word or term not defined herein shall be used with a meaning of standard usage," Code § 142-7(A). The Code defines "fence" as "[a]ny artificially constructed barrier designed to enclose, separate, shield, screen or protect any portion of a lot, made of wood, vinyl, metal or masonry structure." Code § 142-7(B). The Code does not provide a definition for the terms "artificially" or "constructed." Black's Law Dictionary defines "artificial" as "[m]ade or produced by a human or human intervention rather than by nature" and "construction" as "[t]he act of building by combining or arranging parts or elements." Black's Law Dictionary 128, 355 (9th ed. 2009) (emphasis added). Webster's Dictionary defines "artificial" as "[m]ade or brought about by human action or influence" and "construct" as "[t]o put together by assembling parts." Webster's Dictionary 65, 248 (3d ed. 2005) (emphasis added). The Code does not define "barrier," but Webster's defines it as "[a] structure, as a fence or wall, built to bar passage." Id. at 93. The Code defines a "structure" as "[a]nything constructed, assembled or erected which requires location on the ground or attachment to something having such location on the ground, including but not limited to buildings, platforms, sheds, storage bins, tanks, towers, display signs, advertising devices, tennis courts and swimming pools." Code § 142-7(B).
The Code also does not provide a definition for "wall," but Webster's defines "wall" as "[a]n upright structure of building material, as masonry, wood, or plaster, serving to enclose, divide, or protect an area." Webster's, supra, at 1272. Black's defines "wall" as "[a]n erection of stone, brick, or other material raised to varying heights, esp. inside or surrounding a building, for privacy, security, or enclosure." Black's, supra, at 1719.
Based on the Code's definitions of "fence" and "structure," and the dictionary definitions of other terms, it is clear that the drafters of the Code did not intend for a "fence" or "wall" to encompass a row of trees. Plaintiff alleged that the arborvitae were planted and thus were an "artificial condition." Scannavino v. Walsh, 445 N.J. Super. 162, 168 (App. Div. 2016) (quoting Restatement, supra, § 363 cmt. b (1965)). Even if so, the arborvitae would not satisfy other elements of the definition of a "wall" or "fence." The arborvitae were not "constructed" nor do they constitute a "structure" as defined by the Code, because they were not built, "constructed, assembled or erected" using the standard usage of those words. Code § 142-7(B). Thus, the arborvitae also was not a "barrier" as commonly defined. The arborvitae were "made of wood" in a sense, but not in the sense of being constructed of wood as a building material. Ibid. Therefore, Sellers's row of arborvitae was not a "wall" as that term is commonly used or a "fence" as defined in the Code.
The drafters of the Code understood the difference between trees and a wall or fence. The Code defines a "tree" as "[a] large, wood plant having one or several self-supporting stems or trunks and numerous branches that reach a height of at least 20 feet at maturity." Ibid. The Code defines a "screen" as "[e]vergreen trees and shrubs or a berm, fence or wall, or a combination of these, together with decorative plantings, installed in such a manner as to provide an opaque visual barrier between the activities, structures and uses which exist on either side of it." Ibid. Similarly, the Code defines a "buffer" as an area containing "landscaping, fence or wall, . . . to shield the noise and view of activities on a lot surrounding properties." Ibid. Thus, the drafters viewed screens of evergreen trees or landscaping buffers as distinct from a "wall or fence." Ibid. The drafters could have included trees, a "screen" of trees, or a "buffer" of landscaping within its prohibition in Code § 142-36(D) or its definition of a "fence" in Code § 142-7(B), but did not do so.
The arborvitae may have met other elements of the definitions of a "wall" or "fence" because they apparently served to divide, "enclose, separate, shield, screen, or protect" the rest of Sellers's lot. Ibid. However, serving one or more of those purposes is inadequate to meet the other elements of the Code's definition of a "fence" or the standard definition of a "wall."
The drafters of the Code took further measures to distinguish a "fence" or "wall" from a row of shrubbery in their definition of a "buffer." Code § 142-7(B). There, the drafters clearly distinguish a landscaping barrier from a "fence" or "wall."
To support its argument that trees can constitute a fence, plaintiff relies on Bubis v. Kassin, 184 N.J. 612 (2005). In Bubis, our Supreme Court was asked to decide whether "an approximately eight-foot high sand berm, topped with six-foot tall trees" was a "fence" in violation of a restrictive covenant and a zoning ordinance. Id. at 616. The ordinance barred "fences or hedges" higher than six feet, and the restrictive covenant similarly restricted "fences." Id. at 617. The Court explained: "Because neither the restrictive covenant nor the zoning ordinance defines the term 'fence,' we must rely on other sources in deciding whether this berm is indeed a fence." Id. at 620. The Court cited dictionary definitions of "fence" as including a "hedge" or "structure" "usually made" of building materials and serving the purpose of enclosure. Id. at 620-21. Here, by contrast, the Code defines "fence," requires it to be a "structure" made of building materials, and does not include a "hedge" within the definition. Code § 142-7(B).
Lacking such a legislative definition, and having to rely instead on dictionary definitions, the Supreme Court "conclude[d] that a fence is defined primarily by its function, not by its composition. As long as the structure marks a boundary or prevents intrusion or escape, then it is a fence, regardless of the material from which it is forged. This is the ordinary understanding of 'fence.'" Bubis, supra, 184 N.J. at 621. The Court found its "understanding of the term 'fence' . . . consistent with other cases in which courts have found that rows of trees can constitute fences pursuant to spite fence statutes." Ibid. Here, however, the Township's zoning Code requires that a "fence" not merely function as an enclosure but also must be an "artificially constructed" "structure" "made of" building materials. Code § 142-7(B). The Township's legislative definition of "fence" does not include the arborvitae.
The Court in Bubis also found that the row of trees and shrubbery constituted a "hedge," and "the wall of sand" was a "wall." Bubis, supra, 184 N.J. at 627-28. However, hedges are not precluded by the Code and are not encompassed by the Code's definition of a fence, and the arborvitae was not "[a]n erection of stone, brick, or other material" in the standard definition of a "wall" cited above or in Bubis. Id. at 627 (alteration in original) (quoting Black's Law Dictionary 1581 (6th ed. 1990)).
Unlike Bubis, here we have neither the need nor the right to resort to the definition of "fence" given in dictionaries or by the courts of other states. County of Essex v. Comm'r, N.J. Dep't of Human Servs., 252 N.J. Super. 1, 10 (App. Div.), certif. denied, 127 N.J. 553 (1991); see also Nero v. Hyland, 76 N.J. 213, 221 (1978). The Code defines "fence" and "structure" and commands that "[w]hen used in this chapter, the following [defined] terms shall have the meanings herein ascribed to them." Code § 142-7(B). "When construing a statute in which 'the Legislature has clearly defined a term, the courts are bound by that definition.'" In re A.D., 441 N.J. Super. 403, 410 (App. Div. 2015) (quoting Febbi v. Bd. of Review, 35 N.J. 601, 606 (1961)), certif. granted, 224 N.J. 245 (2016). The same is true here.
We affirm the trial court's ruling that Sellers's row of arborvitae is not a "fence" or "wall" and thus does not violate the Code. The intent of the drafters is discernible from the language of the ordinance and its definitional provisions. We must abide by our rules of statutory interpretation and defer to that intent.
Plaintiff's other allegations of public nuisance were wholly without merit. For example, plaintiff alleged that the Township and the Council had failed to adopt an ordinance to require sight triangles. See N.J.S.A. 40:48-2.26 (authorizing municipalities to adopt ordinances limiting plant life "within twenty-five feet of the intersection of two roadways"). In fact, the Township's zoning ordinance provides that such "[s]ight-triangle easements shall be required at all intersections." Code § 142-36(F); see Code § 142-7(B). Accordingly, we must hold that plaintiff's public nuisance claim was properly dismissed.
IV.
Plaintiff contends the arborvitae constitute a private nuisance because they block the sight triangle set forth in the Board's resolution, and thus deprive plaintiff of road access to and from the Property. "When analyzing nuisance claims, 'our courts are guided by the principles set forth in the Restatement (Second) of Torts.'" Scannavino, supra, 445 N.J. Super. at 167 (quoting Ross v. Lowitz, 222 N.J. 494, 505 (2015)). "A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land." Restatement, supra, § 821D (1979). A plaintiff must show "'unreasonable interference with the use and enjoyment' of the plaintiff's property." Ross, supra, 222 N.J. at 505. "There is liability for a nuisance only to those to whom it causes significant harm[.]" Restatement, supra, § 821F (1979). A plaintiff must also show that "the gravity of the harm outweighs the utility of the actor's conduct" or that "the harm caused by the conduct is serious." Birchwood Lakes Colony Club, Inc. v. Borough of Medford Lakes, 90 N.J. 582, 592 (1982) (quoting Restatement, supra, § 826 (1979)).
We assume for purpose of our analysis that "interfere[nce] with immediate ingress and egress to the plaintiff's land" can be a private nuisance "as well as a public one." Restatement, supra, § 821C cmt. (f) (1979). However, one of the factors important in determining the gravity of the harm is "the burden on the person harmed of avoiding the harm." Id. at § 827(e). Here, plaintiff might have avoided the harm by returning to the Board.
We offer no view on the validity of such a claim here, or of defendants' argument that plaintiff itself caused the problem by selling Unit One and constricting Unit Two's access to Meadowbrook Road.
In its amended complaint, plaintiff alleged that the arborvitae "are the sole obstruction in the sight triangle that Plaintiff is required to achieve" under the Board's resolution, and that plaintiff thus was "unable to satisfy a condition of [the Board's] approvals that a proper sight triangle be achieved." Based on that allegation, plaintiff claimed the arborvitae destroyed its right of access to the Property, its right to develop the Property, and its right "to conduct its building project pursuant to the Resolution," thus depriving plaintiff of the beneficial use and enjoyment of the Property.
Plaintiff premises all of those allegations on its claim that due to the arborvitae it cannot "provide a proper sight triangle" as required in condition (d) of the Board's resolution. However, the Board's resolution clearly stated in condition (e) that if "the sight triangle cannot be made satisfactorily clear, [plaintiff] must come back before the Board to discuss further remedies" (emphasis added). Plaintiff failed to return to the Board as required when it discovered it could not provide the sight triangle. Plaintiff thus failed to discuss and determine with the Board what further remedies might be provided.
Because plaintiff failed to return as required by the Board, we do not know what further remedies there might be, or whether those further remedies might enable plaintiff to obtain road access to the Property, to build the project approved in the resolution, to otherwise develop the Property, or to have beneficial use and enjoyment of the Property. Thus, without going back to the Board to explore further remedies, plaintiff cannot prove the allegations on which its nuisance claim is based.
Indeed, by requiring that plaintiff return to the Board to discuss further remedies, the Board intimated it had not yet determined that plaintiff could not obtain road access, build the project, or develop the Property. Though the Board initially required plaintiff to provide a clear sight triangle, it left open the possibility of further relief. "Preliminary statements from administrative officials, however, even if appearing conclusive, are just that — preliminary," and "a landowner must give the land-use authority an opportunity to exercise its discretion." United Sav. Bank v. State, 360 N.J. Super. 520, 526 (App. Div.), certif. denied, 177 N.J. 574 (2003). By failing to do so "and obtain a final ruling," plaintiff has failed to exhaust its administrative remedies. Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 107, 116-18 (App. Div.), certif. denied, 208 N.J. 366, 368 (2011).
"Exhaustion of administrative remedies before resort to the courts is a firmly embedded judicial principle." K. Hovnanian Cos. of N. Cent. Jersey v. N.J. Dep't of Envtl. Prot., 379 N.J. Super. 1, 8 (App. Div.) (quoting Garrow v. Elizabeth Gen. Hosp. & Dispensary, 79 N.J. 549, 558-59 (1979), certif. denied, 185 N.J. 390 (2005)); see also R. 2:2-3(a)(2); R. 4:69-5.
The doctrine of exhaustion of administrative remedies serves important interests[:] "(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."
[SMB Assocs. v. N.J. Dep't of Envtl. Prot., 137 N.J. 58, 69 (1994) (quoting City of Atlantic City v. Laezza, 80 N.J. 255, 265 (1979)).]
Here, because plaintiff failed to return to the Board, we do not know whether the Board in its expertise can devise other relief for plaintiff, we do not have a factual record of what further relief is available, and we do not know whether that further relief will satisfy the parties. Accordingly, plaintiff had to exhaust its administrative remedies and return to the Board before it could plead a claim of nuisance based on the Board's sight triangle resolution. Therefore, dismissal of its nuisance claim was appropriate. See, e.g., Indep. Realty Co. v. Township of North Bergen, 376 N.J. Super. 295, 303-05 (App. Div. 2005) (dismissing because the plaintiff had not exhausted its administrative remedies before the board of adjustment); Village of Ridgefield Park v. N.Y., Susquehanna & W. Ry. Corp., 318 N.J. Super. 385, 389 (App. Div. 1999) (dismissing the plaintiff's nuisance claim because it had not exhausted administrative remedies), aff'd, 163 N.J. 446 (2000).
Based on similar reasoning, the trial court dismissed plaintiff's inverse condemnation claim for failure to exhaust administrative remedies by returning to the Board.
We are aware that plaintiff let expire the forty-five day period to challenge the Board's decision in an action in lieu of prerogative units pursuant to Rule 4:69-6(a). However, a "[p]laintiff may not circumvent the exhaustion requirement by waiting until it is years too late to file a prerogative writ action, and then claiming that [it] need not exhaust remedies because that action is time-barred." Casser v. Township of Knowlton, 441 N.J. Super. 353, 367 (App. Div. 2015), certif. denied, 224 N.J. 123 (2016). In any event, the Board's command to return to discuss further remedies was independent of plaintiff's right to file a judicial action.
Plaintiff had ample opportunity to return to the Board, both before and during its action in the trial court. Indeed, the court granted plaintiff's request for a lengthy stay to allow plaintiff to apply to the Board, but plaintiff chose not to do so. Regardless of whether plaintiff can still return to the Board, the trial court properly dismissed its private nuisance claim for failing to exhaust administrative remedies.
We offer no opinion on whether plaintiff may return to the Board, or whether plaintiff could subsequently return to the trial court. We note the trial court did not specify whether the nuisance counts were dismissed with or without prejudice, and plaintiff did not raise that issue on appeal. --------
V.
Finally, we address the denial of plaintiff's request for leave to amend its complaint for a second time. When as here amendment is sought after an answer has been filed, the plaintiff must obtain "leave of court which shall be freely given in the interest of justice." R. 4:9-1. "'Rule 4:9-1 requires that motions for leave to amend be granted liberally' and that 'the granting of a motion to file an amended complaint always rests in the court's sound discretion.'" Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (citation omitted). However, "'courts are free to refuse leave to amend when the newly asserted claim is not sustainable as a matter of law,'" because "'there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted.'" Ibid. (citation omitted).
Here, plaintiff requested leave to file a second amended complaint almost two years after its original complaint. The proposed second amended complaint makes no substantive changes to any of the existing counts, and instead sought to add counts against Sellers and the Township, expressly charging them with violating Code § 142-36(D), a claim we have found to lack merit. The counts also alleged the arborvitae blocked the sight triangles, a claim we have found must be dismissed for failure to exhaust administrative remedies. The trial court denied plaintiff's request, finding the proposed counts were not sustainable as a matter of law. Ibid. We agree. Thus, the court did not abuse its discretion in denying plaintiff's motion to file a second amended complaint. Ibid.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION