Public Official Inaction Exception from Certain Procedural and Time Constraints: Mullen and Levine v. The Ippolito Corporation

October 2012Articles In the Zone

On September 10, 2012 the Appellate Division approved its opinion in John Mullen and Howard Levine v. The Ippolito Corporation, et al.[1] for publication. In the Mullen decision, the Appellate Division opens the door for challenges by adjoining property owners to municipal inaction for failure to enforce zoning regulations and require approvals for expansion of a preexisting non-conforming use.

The Mullen case involves the Driftwood Motel, a preexisting, non-conforming use located in the Borough of Point Pleasant Beach, NJ that fronts the ocean and is surrounded by residential uses. The motel is currently located in a residential zone. The parties conceded that the Driftwood Motel has operated since at least the 1960s and predates the residential zoning. Therefore, the motel is a preexisting, non-conforming use and protected pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-68. However, as a preexisting non-conforming use, the motel could not expand without zoning board variance approval pursuant to N.J.S.A. 40:55D-70(d)(2).

This dispute involved the alleged expansion of the Driftwood Motel over a number of years, which commenced in 1998 – the year that the plaintiffs moved adjacent to the motel. The motel expansion allegedly included enlargement to the outdoor snack area, an increase in the number of rooms, impermissible increase in activities within the dune area and the installation of outdoor restrooms and changing facilities. The plaintiffs’ alleged that the expansions significantly increased the intensity of the activity associated with the motel and unduly burdened their use and enjoyment of their residential properties. Despite numerous complaints to various public officials in the Borough of Point Pleasant, the plaintiffs were never provided with satisfactory copies of permits or zoning approvals for these improvements. Borough officials failed to explain the basis by which the Driftwood Motel was able to construct these improvements and expand its operations.

As a result of the continued municipal inaction, plaintiffs ultimately filed an action contesting the expansion of the Driftwood Motel and seeking enforcement of Borough zoning ordinances, as applied to the motel. Plaintiffs’ allegations included impermissible motel expansion and the Borough’s failure to enforce its dune protection ordinance. However, at no time did the plaintiffs file an appeal to the Borough zoning board pursuant to N.J.S.A. 40:55D-70(a) from any municipal permits and/or approvals associated with the construction activity at the motel.

On the defendants’ motion for summary judgment, the trial court dismissed the plaintiffs’ action as being both untimely under Rule 4:69-6 (the 45-Day Rule) and for failing to exhaust administrative remedies associated with the right of appeal to the Zoning Board of Adjustment pursuant to N.J.S.A. 40:55D-70(a). On appeal, the Appellate Division ultimately considered the trial court’s interlocutory order and reversed the trail court dismissal of the action as untimely and for failing to exhaust administrative remedies.

The Mullen court reviewed the pleadings in a manner most favorable to plaintiffs, by assuming the truth all of plaintiffs’ allegations. Under this standard, the Appellate Division found that the municipal officials failed to properly enforce Borough Ordinances and failed to require the motel to secure approvals pursuant to N.J.S.A. 40:55D-70(d)(2) for the expansion of its use associated with the increase in the area of the snack bar, increase in rooms and activities in the dune area. The appellate court remanded the case back to the trial court for further proceedings.

In reaching this holding, the appellate court relied on Garrou v Teaneck Tryon Co.[2] The Garrou case held that a mandamus action was in fact appropriate when a property owner can show “special damages” as a result of the zoning violation. In Garrou, the property owner advised the municipal officials of the alleged zoning violation before any permit was issued by the Township or action take by the property owner.[3] Also, Garrou was decided under the Planning Act of 1930, and as such there was no established local administrative remedy available to Garrou to challenge or compel municipal action on the building permit application. As such this court’s reliance on Garrou appears flawed.

The implications of the Mullen decision are significant for two reasons. First, the Appellate Division expands application of the exceptions to the time restrictions related to challenges to municipal zoning actions under Rule 4:69-6. This 45-Day Rule requires that actions be brought against public entities challenging an action or inaction by those municipal agencies within 45 days from the date the petitioner was aware of the action.[4] The 45-Day Rule provides a valuable repose to challenges related to governmental action.

The Mullen court allowed the lawsuit to proceed, notwithstanding the fact that most of the alleged motel expansion occurred years earlier. The court cited the exception to R. 4:69-6 for matters involving “the important public interest in the performance by public officials of their responsibilities.” [5] This argument may be applied generally to almost any action by municipal officials as it relates to the enforcement of a zoning ordinance and as such, potentially limits the application of the 45-Day Rule. Therefore, the repose for both the municipality and the property owner from collateral challenge of permits may not exist, in the circumstance of a preexisting non-conforming use.

Additionally, the Appellate Division failed to require the adjoining property owners to exhaust the Zoning Board appeal process, provided under the, N.J.S.A. 40:55D-70(a), to appeal any action or decision by any municipal official to the Zoning Board of Adjustment within 20 days of the date of the action. The Mullen court states that the this administrative remedy does not apply as broadly where there is municipal inaction, insofar as the Zoning Board of Adjustment appeal process requires a decision by the municipal building official from which an appeal can be taken.

The fact remains that construction occurred at the Driftwood Motel, and the neighbors admit that they were aware of the construction. The fact that neighbors witnessed construction activity gives rise to a neighboring property owner’s right to seek copies of permits from the municipality. If no permits are produced, or if the neighbors believe further approvals are required, the neighbors have the right to enjoin construction by filing the MLUL appeal under N.J.S.A. 40:55D-70(a). The MLUL provides for an automatic stay of the permit until such time as the issue of zoning relief can be adjudicated by the Zoning Board.[6] The Mullen court expresses concern regarding the protection of the property rights of the neighbors. However, the neighbors waited years before asserting their claims, notwithstanding the MLUL’s provision of an expedited review process before the zoning board

The zoning board appellate procedure is common place in the New Jersey. The MLUL automatic stay provisions would effectively protect third parties from any harm associated with an improperly issued permit. To sanction a direct appeal to the Superior Court Law Division without recourse to the municipal zoning board, which is the administrative remedy under the MLUL, impairs the clear intent of the MLUL to promptly address issues of local concern related to enforcement of zoning ordinances by the municipal zoning board and not the courts.

The Mullen court’s failure to require that the adjoining property owners seek immediate recourse through the municipal review process under the MLUL may open the door to litigation involving the proper scope and permissibility of construction permits for preexisting non-conforming uses. Under the Mullen court’s reasoning, property owners who have secured permits or authorizations from municipal officials may face lawsuits after the completion of construction. The Mullen decision opens the door to challenges of determinations regarding permits required for construction and interpretations of zoning ordinances by the zoning and building official, after the property owner has relied on these interpretations by constructing the improvements.

The Mullen court limits the extent of its holding by the specific facts related to (a) the expansion of a non-conforming use and (b) the fact that some permits may not have been not issued for certain construction activities. The practical effect of this case may be to expand zoning board review under N.J.S.A. 40:55D-70(d)(2) of virtually all building permit applications, regardless of whether it involves an alleged expansion of the non-conforming use. Attorneys, architects, contractors and owners of non-conforming uses must be ever diligent to assure that permits and variance approvals are sought and secured whenever seeking any expansion or modification of a preexisting non-conforming use. If these approvals and permits are not secured, owners may now face the potential of a collateral, third-party challenge after the improvements are constructed.

[1] 2012 WL 3889102 ___ N.J. Super.____ (App. Div. 2012); Docket No. A-5823-10T3

[2] 11 N.J. 294 (1953).

[3] Garrou, supra at 296, 297.

[4] N.J. Court Rule 4:69-6(a)

[5] R. 4:69-6(c).

[6] N.J.S.A. 40:55D-75