Opinion
DOCKET NO. A-3014-14T2
10-04-2016
UNITED ADVERTISING CORPORATION, A Corporation of the State of New Jersey, Plaintiff-Respondent, v. HOWELL TOWNSHIP PLANNING BOARD, Defendant-Appellant.
Ronald D. Cucchiaro argued the cause for appellant (Weiner Lesniak L.L.P., attorneys; Mr. Cucchiaro, of counsel and on the brief; Steven R. Tombalakian, on the brief). Dennis A. Collins argued the cause for respondent (Collins, Vella & Casello, L.L.C., attorneys; Mr. Collins, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Fasciale and Gilson. On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2380-13. Ronald D. Cucchiaro argued the cause for appellant (Weiner Lesniak L.L.P., attorneys; Mr. Cucchiaro, of counsel and on the brief; Steven R. Tombalakian, on the brief). Dennis A. Collins argued the cause for respondent (Collins, Vella & Casello, L.L.C., attorneys; Mr. Collins, of counsel and on the brief). PER CURIAM
In this action in lieu of prerogative writs, defendant Howell Township Planning Board (the Planning Board) appeals from a January 28, 2015 Law Division order reversing the Planning Board's denial of plaintiff United Advertising Corporation's (UAC) application for preliminary and final site plan approval, remanding the matter to the Planning Board, and directing that the Planning Board grant UAC's application. We reverse and remand to afford UAC an opportunity to exhaust its administrative remedies and further pursue its application.
UAC is a contract lessor for a portion of property identified as Block 144, Lot 123, as depicted on the tax map of the Township of Howell. The property is known as 1035 New Jersey State Highway Route 9. The property is located within a highway development zone (HD-1) and consists of approximately four acres. The site is developed with a one-story retail building.
UAC sought preliminary and final site plan approval to construct a billboard sign on the property. At the time of the application, billboards were considered a conditional use in the HD-1 zone. Under the time-of-application rule, N.J.S.A. 40:55D- 10.5, the Planning Board retained and entertained UAC's application. The conditional use ordinance prohibited the location of billboards within 250 feet of a residence.
The statute states:
Notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application for development. Any provisions of an ordinance, except those relating to health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development.
The Planning Board held four public hearings on UAC's application between January 2012 and May 2013. The Planning Board took testimony from UAC's engineer (the engineer), a nearby property owner (the property owner), and a zoning officer (the zoning officer). The Planning Board also considered numerous documents introduced into evidence.
The property owner testified at three of the four public hearings before the Planning Board. At the first hearing, the property owner stated that since 1975 he had residential tenants living on his property. He explained that the residential use was within 250 feet from the location of the proposed billboard. The engineer confirmed the ordinance prohibited residential use less than 250 feet from proposed billboards, and the Planning Board determined that further investigation about the residential use was needed.
At the next meeting before the Planning Board, the property owner again testified that he had used the building on his property for residential use since 1975. And he explained that all proper permits had been obtained. The Planning Board directed the property owner to produce copies of "all documents which he considered relevant." After the meeting, the Township Manager provided the Planning Board a continuing certificate of occupancy from 1978. The property owner submitted landlord registrations dated February 29, 2012 and March 19, 2013; a landlord identity statement pursuant to N.J.S.A. 46:8-27 to -37; a certificate of rental dated February 29, 2012; a certificate of continued occupancy inspection from the Monmouth County Board of Health dated February 28, 2012; and a Howell Township Fire Bureau Investigation Report dated December 12, 2005, confirming the existence of a residential dwelling.
As for the property owner's assertion that he had used the building on his property for residential use, UAC's attorney confirmed before the Planning Board that "the current zoning ordinance d[id] not permit residential uses." As a result, UAC's counsel stated to the Planning Board that the legal issue was whether the residential use lawfully existed on the neighboring property. He stressed to the Planning Board that the Zoning Board had exclusive jurisdiction to make such a determination.
The Planning Board acknowledged it received the documentation from the property owner. The property owner had previously requested an adjournment of this meeting due to a scheduling conflict. UAC consented to an adjournment of the hearing, but conditioned its consent on the property owner not seeking a certification of pre-existing non-conforming use from the Zoning Board. The Planning Board adjourned the hearing stating that it had no control over the property owner.
The Planning Board noted in its final resolution that UAC's conditional adjournment consent undermined UAC's contention that the Zoning Board failed to determine the lawfulness of the residential use. The Planning Board found that UAC took steps to decrease the likelihood that the property owner could appear before the Zoning Board seeking a pre-existing non-conforming use determination. It found UAC represented to the Planning Board that it would seek automatic approval if the property owner filed any action with the Zoning Board. The Planning Board recognized the inconsistency between UAC asserting "the absence of a Zoning Board determination requires an approval [of its site plan application,] while at the same time suggesting that [UAC] might seek an automatic approval if [the property owner filed any action with the Zoning Board]."
At the final hearing before the Planning Board, the property owner and zoning officer testified about the residential use. The property owner testified that the residential use had never been abandoned. The zoning officer gave extensive testimony to the Planning Board.
As to the zoning officer, the Planning Board had invited him to the hearing to determine whether UAC was required to obtain a conditional use variance as a result of the property owner's claimed residential use. The zoning officer inspected the property, reviewed the documentation submitted by the property owner, and opined that the residential use was lawful. The zoning officer also explained that there was no record of any change of use or abandonment of the residential use. He stated that in the Township, certificates of rental replaced certificates of occupancy, and that landlord registrations were recently issued yearly. Multiple permits and licenses were then introduced into evidence before the Planning Board as further support for the zoning officer's opinion that the property owner's residential use was lawful.
On June 6, 2013, the Planning Board issued a resolution and denied UAC's application. The Planning Board stated that UAC had failed to satisfy its burden of proof on its application for preliminary and final site plan approval. The conditional use ordinance imposed a 250-foot minimum spacing requirement between billboards and residential use. The Planning Board found that there was a residential use within 250 feet of the proposed billboard. The zoning officer opined that the residential use was a pre-existing non-conforming lawful use based on his site inspection and documents produced by the property owner and township.
The Planning Board determined it was therefore divested of jurisdiction, and that variance relief pursuant to N.J.S.A. 40:55D-70(d)(3) would be required from the Zoning Board. Relying on N.J.S.A. 40:55D-70(a), the Planning Board concluded that it did not have the jurisdiction to disagree with the zoning officer, and that only the Zoning Board had the power to "overturn or otherwise reverse such decisions." The Planning Board also determined that it was not the proper body to resolve whether the residential use constituted a pre-existing non-conforming use or was otherwise a lawful use. As a result, the Planning Board reiterated its position that UAC could challenge the zoning officer's determination as to the pre-existing non-conforming residential use status before the Zoning Board, and entered an order denying UAC's application.
UAC did not challenge the zoning officer's determination before the Zoning Board. Instead, UAC filed this action in lieu of prerogative writs challenging the Planning Board's denial of its site plan application, essentially asking the court to overrule the zoning officer's determination. The judge rejected the zoning officer's determination, concluded the Planning Board's denial of the application was arbitrary and unreasonable, and entered the order under review.
On appeal, the Planning Board argues that the judge erred by (1) ignoring that the Planning Board lacked authority to hear and decide a challenge to the zoning officer's determination, which is exclusively a power statutorily held by the Zoning Board; (2) entering judgment prematurely by failing to require UAC to exhaust its administrative remedies; (3) substituting its judgment before allowing consideration by the Zoning Board; (4) proceeding in the absence of indispensable parties, such as the Township of Howell and the property owner; (5) shifting the burden on UAC's application from UAC to the Planning Board; and (6) lacking a complete record that could only be developed by the Zoning Board. The Planning Board also contends that UAC unfairly pressured it by threatening to seek an automatic approval if the property owner applied to the Zoning Board for certification of a pre-existing non-conforming residential use.
When considering an appeal from an action taken by a planning board, a reviewing court must determine whether the board's decision was "arbitrary, capricious or unreasonable." Fallone Props. L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 560 (App. Div. 2004). A planning board's actions are presumed to be valid and planning boards are given "'wide latitude in the exercise of the delegated discretion.'" Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990) (quoting Medici v. BPR Co., 107 N.J. 1, 23 (1987)). "A board's resolution of factual issues must stand if supported by sufficient credible evidence in the record." Tr. Co. of N.J. v. Planning Bd. of Freehold, 244 N.J. Super. 553, 570 (App. Div. 1990) (citation omitted). Thus, a "reviewing court is not permitted to substitute its judgment for that of the board's." Fallone, supra, 369 N.J. Super. at 561. Where the issue on appeal involves a purely legal question, we owe no special deference to the trial court's or the planning board's decisions, and must determine if they understood and applied the law correctly. D. Lobi Enters., Inc. v. Planning/Zoning Bd. of the Borough of Sea Bright, 408 N.J. Super. 345, 351-52 (App. Div. 2009).
We begin by addressing the Planning Board's contention that the Zoning Board maintained the exclusive authority to review the zoning officer's determination. The Planning Board contends that it lacked jurisdiction to hear and decide any challenge to the correctness of the zoning officer's determination. The Planning Board argues the judge misinterpreted the powers granted exclusively to a Zoning Board by statute and town code. This argument involves a question of law, which we review de novo.
It is well settled that a zoning board has the exclusive authority to hear and decide appeals from a determination by an administrative officer. Pursuant to N.J.S.A. 40:55D-20 of the Municipal Land Use Law (MLUL), "[a]ny power expressly authorized by [the MLUL] to be exercised by (1) planning board or (2) [zoning] board of adjustment shall not be exercised by any other body, except as otherwise provided in this act." N.J.S.A. 40:55D-70 outlines the powers of a zoning board. Pursuant to N.J.S.A. 40:55D-70(a), the Court has stated that "[a] zoning board has the power to '[h]ear and decide appeals' of decisions by [a] municipal zoning officer." Paruszewski v. Twp. of Elsinboro, 154 N.J. 45, 54 (1998).
N.J.S.A. 40:55D-1 to -163.
A zoning board may also "[h]ear and decide requests for interpretation of the zoning map or ordinance or for decisions upon other special questions," N.J.S.A. 40:55D-70(b); grant variances, N.J.S.A. 40:55D-70(c), -70(d); and is authorized to issue non-conforming use certifications, N.J.S.A. 40:55D-68; see also, Paruszewski, supra, 154 N.J. at 54. --------
Here, the question was who had authority to determine whether the objecting property owner had a pre-existing non-conforming residential use. That question arose when the property owner made his objection and claimed that he had a lawful residential use on his property. The Planning Board then invited the zoning officer to consider that issue. After inspecting the neighboring property and reviewing documents produced by the property owner, the zoning officer rendered an opinion that the neighboring property owner had a pre-existing non-conforming residential use. UAC contends that the zoning officer's testimony before the Planning Board is not a proper zoning determination. While the process was not the normal way a zoning officer makes such a determination, in his testimony before the Planning Board, the zoning officer did offer an opinion. Therefore, the Planning Board lacked statutory authority to resolve UAC's challenge to the zoning officer's determination. That authority rested solely with the Zoning Board.
There exists additional support for the Planning Board's conclusion that it was without jurisdiction to hear and decide a challenge to the zoning officer's determination. Township Code 188-148A provides that the zoning board of adjustment hears and decides appeals from "any order, requirement, decision or refusal" made by an administrative officer "based on or made in the enforcement of [a] [z]oning [o]rdinance." The zoning officer rendered his decision, on which the Planning Board reasonably relied, and therefore it was without authority to hear any challenge to that determination pursuant to the town code.
We conclude that the judge entered judgment prematurely by failing to allow UAC to exhaust its administrative remedies. 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 has not been exhausted." R. 4:69-5. The rule permits a trial court to waive the exhaustion of administrative remedies requirement where "it is manifest that the interest of justice requires otherwise." 21st Century Amusements, Inc. v. D'Alessandro, 257 N.J. Super. 320, 322 (App. Div. 1992). Such is not the case here. See Brunetti v. Borough of New Milford, 68 N.J. 576, 589 (1975) (setting forth the guidelines for determining when an interest of justice exception should be permitted).
"[T]he exhaustion of remedies requirement is a rule of practice designed to allow administrative bodies to perform their statutory functions in an orderly manner without preliminary interference from the courts." Brunetti, supra, 68 N.J. at 588. The Supreme Court aptly stated the purpose of the doctrine.
[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.There were several options available to UAC to exhaust its administrative remedies, such as filing an application with the zoning officer or Zoning Board for determination of a pre-existing non-conforming use status pursuant to N.J.S.A. 40:55D-68; filing an appeal to the Zoning Board during the hearing before the Planning Board challenging the zoning officer's determination pursuant to N.J.S.A. 40:55D-70(a) and -72; filing a complaint with the zoning officer directly and then appealing to the Zoning Board if need be pursuant to N.J.S.A. 40:55D-70(a) and -72; and seeking to enjoin the residential use on the property owner's property pursuant to N.J.S.A. 40:55D-18. All of these options would have satisfied the primary goals of the administrative exhaustion of remedies doctrine.
[Atlantic City v. Laezza, 80 N.J. 255, 265 (1979).]
Where, as here, a party fails to exhaust available administrative remedies, a court is generally left with an incomplete factual record and is likely to substitute its judgment for an administrative agency that never considered the matter. For instance, here, the court reversed the resolution of the Planning Board based primarily on its own conclusions as to the legality of the adjacent residential use. But the Planning Board did not resolve such a question, and the Zoning Board certainly was never involved. In other words, we conclude the judge erred by rendering a decision on the legitimacy of the adjacent residential use absent review before the Zoning Board.
On the subject of burdens of proof, we note that UAC was obligated to satisfy its burden of proof on its application for preliminary and final site plan approval. UAC was obligated to prove compliance with all conditions. It was not the property owner's burden before the Planning Board on UAC's application to show the residential use was lawful. That is so in part because UAC is the applicant, not the property owner.
Although the Planning Board was without authority to hear and decide appeals from a zoning officer's determination — that is exclusively the power of the Zoning Board — there existed a sufficient basis in this record on which it could rely to support its finding that it lacked jurisdiction. For example, the zoning officer testified under oath; he inspected the property owner's residential property; the property owner, who testified at three hearings, produced numerous documents supporting his assertion that there existed a residential use within 250 feet from the proposed billboard; the zoning officer stated a certificate of occupancy was unnecessary because the town issued rental certificates, and he testified that no record existed demonstrating that there was a change in residential use; and several of the documents admitted into evidence purportedly showing a lawful residential use were maintained by the township. We therefore conclude that the Planning Board's order denying UAC's application was not arbitrary, and that the court erred by directing the Planning Board to issue to UAC preliminary and final site plan approval.
On remand, we do not mean to limit UAC's options on its preliminary and final site plan application. At oral argument before us, the Planning Board's attorney conceded that there would be no procedural or substantive impediment to UAC exhausting its administrative remedies as to its application for preliminary or final site plan approval. UAC could ask the Zoning Board to reverse the zoning officer's decision that the property owner's residential use of the property was permissible, or alternatively, seek a conditional use variance to permit the billboard at the proposed location. The Planning Board's attorney also acknowledged that the Planning Board would continue its review of UAC's application. Our opinion should not in any way restrict UAC's rights to further pursue its application.
Reversed and remanded to afford UAC an opportunity to exhaust its administrative remedies. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION