Court to Dr. Oz Neighbor: Exhaust Administrative Remedies Prior to Filing an Action

February 2013Articles In the Zone

In Bisceglie v. Memhmet Oz and Lisa Oz and Cliffside Park Zoning Board of Adjustment, Cliffside Park Zoning Official, Cliffside Park Code Official, the individual Plaintiffs and Defendants are next door neighbors. The properties are located near the Hudson River and overlook the New York City skyline. In or about 2008, the property owners submitted an application to the Cliffside Park Zoning Board of Adjustment, seeking approval for a landscape project, in connection with the construction of a guest house and in-ground swimming pool.

The Zoning Board approved the property owners’ request, subject to the approval of a landscaping plan by the Borough Engineer/Planner, which plan was submitted on August 13, 2010. The same day that the landscaping plan was submitted to the Borough Engineer/Planner, the property owners personally delivered a copy of the landscaping plan to the neighbors.

Three days later, on August 16, 2010, the property owner planted certain bamboo trees on their property, consistent with the landscaping plan. Eight days later, the neighbors filed a motion for a probable cause hearing in the Cliffside Park Municipal Court, asserting that the bamboo trees violated the local fence ordinance. The application came before the Municipal Court on September 16, 2010. At the hearing, the court questioned whether a Municipal Court was the proper jurisdiction, but the court apparently never issued any ruling.

Following the hearing, the property owner moved the bamboo trees to the other end of their property, away from the neighbor’s parcel of land in an attempt to accommodate the neighbor’s objection. The neighbor, in addition to filing a Complaint in Municipal Court, took other steps to voice his objection to different aspects of the landscaping plans. Among other things, the neighbor discussed his objections with the planner and wrote letters to the mayor and other municipal officials. Nevertheless, and central to the case, the neighbor never appealed the matter to the Cliffside Park Zoning Board of Adjustment for a determination of these issues. Moreover, the neighbor never raised an objection to the cedar trees that were depicted on the landscaping plan, which were at issue in the case, at any time prior to filing a prerogative writ action in the Superior Court of New Jersey.

On or about October 28, 2010, the property owner planted the three cedar trees depicted on the approved plan. Apparently, the trees partially obstructed the neighbor’s view of the New York City skyline and Hudson River. On November 16, 2010, the neighbor filed an action in lieu of prerogative writs against the defendants, claiming that the trees depicted on the landscaping plan constituted a “fence,” in violation of the Cliffside Zoning Ordinance.

On July 21, 2011, the Superior Court Judge dismissed the action for failure to exhaust administrative remedies.

On appeal before the Superior Court, Appellate Division, the neighbor argued that the judge improperly dismissed the action and should have heard the merits of the case. The Appellate Division disagreed with the neighbor, finding no mistake in exercise of discretion in the judge’s determination that an exhaustion of administrative remedies was required. The court went on to discuss when and under what circumstances an exhaustion of administrative remedies must occur prior to commencing an action in Superior Court.

The court discussed the powers of a Zoning Board under Section 70(a) and (b) of the Municipal Land Use Law, which are the sections that authorize the Zoning Board to hear appeals of an administrative decision and interpretations of the zoning map or ordinance. The court indicated that under the Municipal Land Use Law, such an appeal must be brought to the Board of Adjustment within 20 days of the date an interested party knows or should know of the action. The policy behind a time limit is the protection of individuals from the threat of an unrestrained future challenge. A person to whom a permit is issued may protect the right by providing reasonable notice to all those who might wish to challenge the undertaking. In other words, if one supplies his neighbor with a copy of the plan, as was done in this instance, a strong argument can be made that the 20 days would run from the time of supplying the plan to any neighboring property owners.

The court went on to discuss that actions in lieu of prerogative writs are not maintainable as long as there is an available right of review before an administrative agency. This is the exhaustion of administrative remedies requirement. Moreover, no action in lieu of prerogative writs may be commenced later than 45 days after accrual of right to review hearing or relief claimed. However, a trial court may excuse the requirement to exhaust administrative remedies or extend the forty-five day statute of limitations in the interest of justice.

The court went on to discuss the purpose behind the Doctrine of Exhaustion of Administrative Remedies and indicated it serves three primary goals: (1) the rule insures 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.

Accordingly, there is a strong public policy in favor of requiring parties to exhaust their administrative remedies before resorting to an action in court.

Nevertheless, the court discussed that the exhaustion of administrative remedies requirement is neither jurisdictional nor absolute and would depend upon the facts and circumstances of each case. The court went on to discuss that a court may dispense with the requirement of exhaustion of administrative remedies when the interest of justice so requires.

The New Jersey Supreme Court has set forth the following guidelines for determining when an interest of justice exception should be permitted:

This has been held to mean that exhaustion of remedies will not be required where administrative review will be futile, where there is a need for prompt decision in the public interest, where the issues do not involve administrative expertise or discretion and only a question of law is involved and where irreparable harm will otherwise result from the denial of immediate judicial relief.

In our experience, this five-part test is difficult to meet and further emphasizes that there is an extremely strong presumption favoring the requirement of exhaustion of administrative remedies in New Jersey.

On appeal, the neighbor argued that there was no need to appeal the approval of the property owners landscape plans to the Zoning Board because it involved the interpretation of a zoning ordinance, which is a purely legal issue. The court went on to discuss the competing policy goals and case law that interpret whether and in what instances the exhaustion of administrative remedies should be required and noted that the question of law exception ordinarily includes challenges to ordinances and may also be applied where issues involve interpretation of ordinances.

However, where the issues involve interpretation and application of a particular ordinance, ordinarily facts may be in dispute and it is best that a record be made at the local level, rather than in a trial court. Like this case, most zoning issues involve not only an interpretation of an ordinance, but also how that ordinance is applied to the specific fact pattern in any given land use matter.

In the instant matter, the court held that the question presented in the instant case involves interpretation of factual issues as applied to a legal determination. The court found that:

It is not simply whether...trees fall within the legal definition of a fence under the ordinance, whether a row of trees constitutes a ‘fence’ therefore becomes a case-by-case determination involving a more fact-intensive review in determining whether defendants’ three trees constitute a fence considerations such as the size the trees, the positioning, the use and placement, the purpose behind their planning and any other facts that make the trees more or less likely to be considered a fence must be taken into account.

Because this case involved that mixed interpretation of an ordinance, as well as its applications to the facts of the matter, the court held that the appropriate process would have been to appeal the matter to the Zoning Board of Adjustment within 20 days of when the neighbor was supplied with the property owner’s landscaping plan. Since the property owner gave the plans to the neighbor on August 13, 2010, the neighbor would have been required to apply to the Zoning Board of Adjustment for a determination under Section 70 of the Municipal Land Use Law on or before September 2, 2010.

The current action was not filed until November 16, 2010 – over three months after the neighbor received the landscaping plan. Since the neighbor did not appeal within the 20 days required under the Municipal Land Use Law, and never filed a prerogative writ action until more than three months after the neighbor had a copy of the landscaping plan, the dismissal of plaintiff’s action in lieu of prerogative writs was affirmed.

Accordingly, as practitioners and property owners, it is critical that we remain mindful of the requirement to exhaust administrative remedies. The majority of questions are always mixed interpretations of factual issues as applied to a legal determination and, as a result, in almost every instance before resorting to filing an action in court an interested party must exhaust his administrative remedies.

While the case does recognize an interest of justice exception, the extensive five-part test enunciated by the Supreme Court is difficult, if not impossible, to meet. When coupled with the public policy that favors exhaustion of administrative remedies, one should almost never resort to the courts without first exhausting administrative remedies before the appropriate land use board.

View entire publication (pdf)