ALLEN & BUBENICK, INC. VS. TOWNSHIP OF PISCATAWAY (L-7932-11 AND L-3560-13, MIDDLESEX COUNTY AND STATEWIDE)(CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-1309-13T4
A-5649-13T4
A-3471-14T4

ALLEN & BUBENICK, INC.,

Plaintiff-Appellant,

v.

TOWNSHIP OF PISCATAWAY,
TOWNSHIP OF PISCATAWAY COUNCIL,
TOWNSHIP OF PISCATAWAY BOARD OF
ADJUSTMENT, and TOWNSHIP OF
PISCATAWAY PLANNING BOARD,

Defendants-Respondents.

_______________________________

Argued November 29, 2016 – Decided May 30, 2017

Before Judges Reisner, Rothstadt, and Sumners.

On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County, Docket
Nos. L-7932-11 and L-3560-13.

Elliott Louis Pell argued the cause for
appellant.

Danielle Abouzeid argued the cause for
respondents Township of Piscataway, Township
of Piscataway Council, and Township of
Piscataway Planning Board (Dvorak &
Associates, LLC, attorneys; Ms. Abouzeid, of
counsel and on the brief).
 Richard J. Mirra argued the cause for
respondent Township of Piscataway (Hoagland,
Longo, Moran, Dunst & Doukas, LLP, attorneys;
Mr. Mirra, of counsel and on the brief; Nicole
C. Tracy, on the brief).

James J. Kinneally, III, argued the cause for
respondent Township of Piscataway Board of
Adjustment (Marriott Callahan & Blair,
attorneys; Mr. Kinneally, on the brief).

PER CURIAM

In these three consolidated matters, plaintiff Allen &

Bubenick, Inc. appeals from orders entered by the Law Division

dismissing each of its three complaints relating to its efforts

to obtain a zoning permit and certificate of occupancy (CO)

necessary to its attempt to sell its property and business.1

Plaintiff alleged that defendants Township of Piscataway, its

council, and zoning and planning boards improperly exercised their

1
In A-1309-13, plaintiff appeals from three orders entered on
October 7, 2013, denying plaintiff's motion for partial summary
judgment, granting defendants' motions for summary judgment,
dismissing plaintiff's complaint relating to its prospective
purchaser's application, seeking declaratory relief and damages,
and denying plaintiff's cross-motion to file a second amended
complaint. In A-5649-13, plaintiff appeals from the Law Division's
June 23, 2014 order granting summary judgment in favor of the
township, the board of adjustment, and the planning board, and
dismissing plaintiff's complaint in lieu of prerogative writs that
challenged the zoning officer's denial of its prospective
purchaser's application for a zoning permit. In A-3471-14,
plaintiff appeals from the Law Division's February 4, 2015 order
dismissing its action in lieu of prerogative writs that challenged
the zoning board's sustaining the zoning officer's denial of its
application for a certificate of continued occupancy.

2 A-1309-13T4
authority and powers by wrongfully interfering with plaintiff's

anticipated sale by requiring its contract purchaser, Kings

Building Materials, L.L.C. (Kings), and plaintiff to seek site

plan approval for a CO and certificate of continued occupancy

(CCO).

Plaintiff argued to the trial courts that the municipal

authorities acted arbitrarily and in violation of plaintiff's

constitutional rights by sustaining the zoning officer's decision

to require site plan approval for "a mere change in occupancy."

The two Law Division judges who considered the matters rejected

plaintiff's claims because the municipal authorities acted

properly in light of the fact that, at the time of Kings' and

plaintiff's applications, plaintiff had never complied with

conditions to various approvals the planning board granted years

earlier. Moreover, after the denial, plaintiff satisfied the

conditions and the zoning officer approved plaintiff's

applications for a permit, without requiring site plan approval,

rendering plaintiff's claims moot. On appeal, plaintiff argues

numerous reasons why both judges erred, primarily asserting its

view that the conditions to the earlier approvals plaintiff had

not satisfied gave rise to an enforcement issue that the township's

official could not rely upon to deny their applications.

3 A-1309-13T4
 We have considered plaintiff's contentions in light of our

review of the record and applicable legal principles. We find no

merit to plaintiff's arguments and affirm, substantially for the

reasons expressed by the Law Division judges who dismissed

plaintiff's complaints, and for the additional reasons stated in

this opinion.

The facts we discern from the record regarding each order can

be summarized as follows. Plaintiff was in the business of

manufacturing and the retail sale of cinder block and related

materials. It conducted its business from three structures on

property it owns on Stelton Road in the township since

approximately 1947. One structure was used for the manufacturing

of cinder blocks, another as warehouse, retail, and office space,

and the third as warehouse space only. The property is located

in the LI-1 (Light Industrial) zone and plaintiff's manufacturing

business was a permitted use in that zone. Its retail operations

were also a permitted use as long as they were limited to five

percent of the building floor area.

Years before the applications that are the subject of

plaintiff's complaints, plaintiff made two applications relating

to the expansion of two of its buildings that the planning board

approved in September 1990 and April 1992. The approval of the

first application was subject to certain conditions that were set

4 A-1309-13T4
forth in a memorandum from the township's Division of Planning

dated June 22, 1990. The conditions were: installation of brick

pavers in the parking area; the paving of a driveway to eliminate

stones being thrown onto Stelton Road; the planting of street

trees along Stelton Road; and the striping of proposed parking

stalls. The approval of the second application was also

conditioned upon various requirements, including plaintiff's

"[c]omplaince with all conditions of [the 1990] approval . . . ."

On May 11, 1999, plaintiff applied for a certificate of

occupancy. The application made no mention of the earlier site

plan approvals even though that information was requested. The

township zoning officer stated on the application that, "it should

be noted that there is existing storage in the Township's right-

of-way of Trent Place, which is not approved as any part of any

site plan." Nevertheless, plaintiff was issued a CO on July 29,

1999.

Kings filed its application for a CO after it entered into a

contract to purchase plaintiff's property and business. The

application stated that Kings sought to use the property in exactly

the same manner as plaintiff. Kings' application also did not

disclose the earlier approvals as required.

Upon receipt of Kings' application, the township's Supervisor

of Planning and Zoning Officer conducted a site inspection. After

5 A-1309-13T4
her inspection, the zoning officer rejected Kings' application

because "site plan and variance approval [were] required" and

various conditions from the 1990 and 1992 approvals had not been

met. The zoning officer prepared a memorandum listing thirteen

conditions she had observed on or adjacent to plaintiff's property

that were in violation of the township's ordinances or the

conditions of the 1990 and 1992 approvals that plaintiff had not

satisfied.2

2
Specifically, the memorandum noted the following:

A landscape buffer was required to be along
the entire frontage of the property to screen
the outside storage; no buffer currently
exists.

Stripping of the parking lot was required to
delineate the parking stalls or color paver
delineating the parking stalls.

Tire stops are required in front of the
sidewalk (along the pavers).

No outside storage was permitted within the
access lane.

The fence and materials are located in Trent
Place . . . .

Barbed wire is not permitted on the fence or
a variance is required.

A copy of the lease agreement with Conrail
needs to be submitted.

6 A-1309-13T4
 The non-conforming conditions specifically included a masonry

contractor using the property without a certificate of occupancy;

fencing and outdoor storage within the township's rights-of-way;

a dumpster (structure) straddling the property line with adjoining

A masonry contractor is running a business on
the property without a certificate of
occupancy.

There are several buildings that are in poor
condition. The canopy has collapsed on one
of the buildings. The Building Department
will need to determine whether the buildings
are safe for occupancy.

There is no signage to direct traffic as
required by a prior Board approval.

A variance will be required for insufficient
setbacks of the outside storage.

A variance is also required for insufficient
parking. Additional variances may be
required.

The overall maintenance of the property needs
to be in compliance with the Township's
Property Maintenance Ordinance.

The owner of the property entered into a
developer's agreement with the Township as
part of a 1990 Planning Board approval. There
is no record of any payments being made as
required by the agreement. The owner should
provide proof of payment or the payments will
be required to be made.

There was no evidence that township ever sought to enforce its
ordinances or the conditions to its earlier approvals.

7 A-1309-13T4
railroad property; and sand and gravel storage bins located on the

railroad's property. The conditions demonstrating noncompliance

with the 1990 and 1992 approvals were the use of the adjoining

railroad property without site plan approval, the use of fencing

within the township's rights-of-way, and the use of those rights-

of-way for storage. Also, the zoning officer concluded that new

fencing, a wall, or plantings, must be erected by plaintiff because

outdoor storage was required to be fenced pursuant to township

ordinances.

As a result of the deficiencies found by the zoning officer,

she determined that Kings did not qualify for a CO or an exemption

from seeking site plan approval.3 The zoning officer met with

plaintiff's and Kings' representatives in an attempt to resolve

the issues related to her denial of Kings' application and those

3
Piscataway Township Zoning Ordinance No. 24-201.1 provides
for exemption from site plan approval as long as four conditions
are met. One of them was:

that the existing building and new use or
change comply with all of the above and the
structure and lot comply with all of the
zoning district regulations, inclusive of
parking, buffer areas and location and size
of signs for a change of use and/or change of
occupancy, and a written report from the
zoning officer that adequate landscaping
exists or is proposed.

[Piscataway Twp., N.J., Code ch. 24-
201(a)(4).]

8 A-1309-13T4
related to Kings' anticipated use of the property, which turned

out to include a more extensive retail operation than that which

plaintiff conducted from the premises. Despite that meeting and

subsequent submissions from plaintiff and Kings, the zoning

officer did not change her denial of Kings' application for a

zoning permit and CO. Thereafter, Kings terminated its offer to

purchase plaintiff's property.

Plaintiff filed its first complaint on November 4, 2011,

seeking injunctive relief, requiring the township to issue the

zoning permit and CO, and alleging that its constitutional rights

had been violated by the zoning officer's interpretation of the

township's zoning ordinances. Plaintiff alleged that the

township's and its board's actions were jeopardizing its sale to

Kings. In addition to injunctive and declaratory relief, plaintiff

sought damages and counsel fees.

While plaintiff's lawsuit was pending, it applied for a CCO

in its own name on March 9, 2012, which the zoning officer denied

on March 26, 2012. Plaintiff appealed that denial to the zoning

board on April 12, 2012. Plaintiff also filed a complaint in lieu

of prerogative writs, challenging the zoning officer's denial of

plaintiff's application, before the zoning board decided the

appeal plaintiff had filed with that board.

9 A-1309-13T4
 After plaintiff filed the second complaint, it rectified the

violations and non-conforming conditions identified earlier by the

zoning officer. Plaintiff removed fences from all township rights-

of-ways, removed all items on the adjoining railroad property,

displayed proper signage, and installed tire stops on the parking

lot. The zoning officer inspected the property and confirmed that

plaintiff had corrected the violations. The zoning officer

approved the application and issued a CCO to plaintiff.

Despite its receipt of the CCO, plaintiff did not withdraw

its appeal to the zoning board, nor did it dismiss its pending

complaints. At a hearing on March 21, 2013, the zoning board

confirmed that plaintiff had corrected the conditions and that a

CCO had been issued. Plaintiff was nevertheless given an

opportunity to explain why it continued to pursue the appeal when

it already had the CCO and to present testimony and evidence in

support of its original claims. The zoning board concluded in its

resolution dated April 11, 2013, that plaintiff's application was

properly denied for the reasons stated by the zoning officer.

Plaintiff filed its third complaint, another action in lieu of

prerogative writs, challenging the zoning board's decision.

After the trial court scheduled plaintiff's first action for

trial and the discovery end date had passed, plaintiff filed a

motion for partial summary judgment. The township, its council,

10 A-1309-13T4
and planning board also filed a motion for summary judgment seeking

dismissal of plaintiff's complaint with prejudice. Plaintiff

filed a cross-motion for an order permitting it to file a second

amended complaint.

Judge James P. Hurley considered counsels' oral arguments on

the parties' motions on August 26, 2013, and issued orders on

October 7, 2013, denying plaintiff's motion and cross-motion, and

granting defendants' motions. Judge Hurley set forth his reasons

in a twelve-page, single-spaced written decision.

The judge first addressed plaintiff's motion to file a second

amended complaint, compared the allegations of the proposed

pleading to the first amended complaint and concluded that the

claims proposed by amendment were already stated within the filed

pleading. The judge determined that by attacking the application

of the township's ordinance in the filed pleading, plaintiff

challenged the township's ordinance facially as well as its

application so there was no need to permit amendment, especially

since the discovery period had already concluded and a trial date

was scheduled.

Next, the judge addressed the parties' motions for summary

judgment. After discussing the standard applicable to the motions,

Judge Hurley summarized plaintiff's eleven claims for relief,

considering each of them in light of what he found were the

11 A-1309-13T4
undisputed facts. The judge described plaintiff's challenges to

the manner in which the township officials applied its ordinances,

and concluded that "[t]he interpretation of the ordinance [§ 24-

201.1] is the basis of all claims for relief in plaintiff's

complaint." Judge Hurley read the ordinance to require site plan

approval on a change of occupancy "if a use [will be] inconsistent

with the zoning regulations of the Township, or if the use is in

violation of any prior site plan approval . . . ." He then found

that at no time prior to the filing of its complaint did plaintiff

correct its violations of the conditions of the planning board's

earlier approvals. As a result of its non-compliance, the judge

stated that plaintiff could have either applied to the planning

board for relief from its obligations under the earlier approvals

or it could have satisfied the conditions to avoid the requirement

for site plan approval.

Judge Hurley also addressed plaintiff's argument that a

municipality cannot withhold a CO "to assure that the use of

property is in conformance with the zoning ordinance," and found

plaintiff's reliance on our opinion in Cherry Hill Twp. v. Oxford

House, Inc., 263 N.J. Super. 25, 51-52 (App. Div. 1993), to be

inapposite because that case dealt with a denial of a CO because

the proposed use was not permitted as compared to plaintiff's

issues that were the result of its failure to comply with the

12 A-1309-13T4
conditions of the earlier approvals. Judge Hurley analyzed the

township's ordinances relating to COs and CCOs and observed that

the township's requirement that an applicant for a CCO seek a

zoning permit was a recognized method to insure that a use will

conform with a previously granted site plan approval. He rejected

plaintiff's contention that this requirement was inconsistent with

the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and

that its application was limited to new developments or

construction.

Judge Hurley turned to plaintiff's due process claims and

concluded they were without merit. The judge found that upon the

denial of Kings' application for a zoning permit and a CO, there

were administrative remedies available to plaintiff that it did

not pursue, including applications to the zoning board or the

local construction board. Moreover, any constitutional challenge

to the ordinance was meritless because plaintiff's failure to

satisfy the conditions of the earlier approvals created

plaintiff's problem.

Addressing defendants' motions and the interpretation of the

ordinance the judge stated "there is nothing in §24-201 that

requires a site plan review merely because of a change in

occupancy" and that requiring a zoning permit as a prerequisite

to a CCO does not conflict with the MLUL, nor does it violate

13 A-1309-13T4
plaintiff's constitutional rights. Consequently, plaintiff

suffered no deprivation of any property rights as a result of any

action taken by the township or its boards and the delay plaintiff

suffered that, as plaintiff alleged, interfered with its sale to

Kings was caused only by plaintiff's failure to comply with the

conditions of the earlier approval.

Similarly, Judge Hurley determined that, as no contract

existed between plaintiff and the township or any of its boards,

had plaintiff suffered any injury giving rise to a claim for

damages not addressed in any specific statute, the court could not

grant it any relief because plaintiff failed to comply with the

Tort Claims Act, N.J.S.A. 59:1-1 to 12-3. The court also rejected

plaintiff's civil rights violation claims under 42 U.S.C.A. § 1983

because neither the township nor its boards deprived plaintiff of

any rights.

Finally, Judge Hurley addressed plaintiff's estoppel and

laches arguments that were based upon its claim that the township

was barred from requiring compliance with the prior approvals

because it issued a CO in 1999 that did not mention "plaintiff's

noncompliance." The judge observed that plaintiff's 1999

application failed to disclose the prior approval, as required by

the form, and, in any event, even if the zoning officer erred in

1999 by not discovering the outstanding violations, only the board

14 A-1309-13T4
was empowered to relieve plaintiff from its obligations to comply.

Relying upon on settled case law, the judge concluded that estoppel

and laches were not viable legal arguments under the circumstances

presented. The judge also found inapplicable plaintiff's argument

that the township's boards did not "turn square corners" in its

consideration of the applications for the zoning permit and CCO.

The township subsequently filed a summary judgment motion,

seeking to dismiss plaintiff's first action in lieu of prerogative

writs. On June 23, 2014, Judge Hurley considered counsels' oral

arguments regarding the township's motion. At the hearing, the

township's attorney argued that summary judgment should be granted

for the same reason that the judge granted that relief in

plaintiff's earlier action arising from the denial of Kings'

application. Plaintiff's counsel offered no oral argument and the

judge, relying upon In re estate of Dawson, 136 N.J. 1, 20 (1994),

concluded that application of collateral estoppel mandated the

dismissal of the complaint for the same reason that he dismissed

plaintiff's complaint in the earlier action. Judge Hurley entered

an order on the same date dismissing the complaint against the

township.

The zoning board later filed a motion for summary judgment

seeking the dismissal of plaintiff's second prerogative writ

action. Judge Douglas K. Wolfson considered counsels' oral

15 A-1309-13T4
arguments on January 23, 2015, relating to plaintiff's second

prerogative writ complaint that challenged the zoning board's

sustaining the zoning officer's denial of a permit and CCO to

plaintiff. At the hearing, the judge established that the only

remaining defendant in the case was the zoning board due to earlier

voluntary dismissals. In response to questioning by the judge,

plaintiff's counsel admitted that the relief plaintiff was seeking

in its complaint, the issuing of the CCO, was moot because the

zoning officer had already issued the permit and certificate.

Nevertheless, counsel argued plaintiff was entitled to a

determination that the zoning officer's initial decision was wrong

and the ordinance relied upon by the board was invalid. After

considering counsels' arguments, Judge Wolfson concluded that the

issues being raised were moot and, even if they were not, that the

zoning officer and board's actions were not arbitrary, capricious,

or unreasonable based upon plaintiff's failure to satisfy the

conditions of the earlier approval. Accordingly, the judge entered

an order dismissing plaintiff's complaint.

On appeal, plaintiff's numerous arguments focus on what it

argues was either the misapplication of the township's ordinance

§ 24-201.1 or it being facially unconstitutional to the extent it

deprived plaintiff or Kings' of the zoning permit and CCO necessary

to the sale of plaintiff's property or its continued use.

16 A-1309-13T4
Plaintiff contends that its failure to comply with any of the

conditions of the earlier approvals could not be relied upon to

deny the subject applications. Plaintiff alleges it was caused

to suffer deprivation of its "protectable property interest" and

diminished the value of its property. Plaintiff also argues again

that notions of estoppel barred the township from denying the

applications and the wrongful denials caused it to suffer damages

for which it should be compensated. Plaintiff also contends that

the actions of all of the municipal boards were arbitrary,

capricious, and unreasonable. Finally, plaintiff argues it should

have been permitted to file a second amended complaint in its

original action.

We review a trial court's grant of summary judgment de novo

and apply the same standard as the trial court. Cypress Point

Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 414 (2016).

Summary judgment must be granted if there is no genuine issue of

material fact challenged and the moving party is entitled to

judgment as a matter of law. R. 4:46-2. No special deference is

afforded to the legal determinations of the trial court when no

issue of fact exists. Templo Fuente De Vida Corp. v. Nat'l Union

Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995)).

17 A-1309-13T4
 We conclude from our de novo review that plaintiff's

contentions are without sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially

for the reasons expressed by both Judge Hurley and Judge Wolfson.

We add only the following brief comments.

The thrust of plaintiff's arguments has been that the township

could not enforce the conditions of the earlier approvals by

requiring site plan approval. Therefore, plaintiff was entitled

to the zoning permit and CO. Plaintiff's premise is incorrect.

A zoning permit is different from a CO or a CCO. Despite the

different purposes that zoning permits and COs and CCOs are

intended to address, "there is some overlap." Cox & Koenig,

Current N.J. Zoning & Land Use Administration 257 (2017).

A zoning permit relates to the specific use a property is put

to and that which a purchaser may propose. See N.J.S.A. 40:55D-

68; see also Twp. of Mahwah v. Landscaping Techs., Inc., 230 N.J.

Super. 106, 109-10 (App. Div. 1989). "The obvious purpose of

requiring a zoning permit is to assure that the proposed use,

construction or alteration will be in accordance with the

provisions of the zoning ordinance." Cox & Koenig, supra, at 253.

"[A] certificate of occupancy is not a device to assure that

the use of property is in conformance with the zoning ordinance

of the municipality." Twp. of Mahwah, supra, 230 N.J. Super. at

18 A-1309-13T4
109; see also Cherry Hill Twp., supra, 263 N.J. Super. at 52. A

CO and a CCO relate to the construction and conditions on the

property as compared to its use. A CO "indicat[es] that the

construction authorized by [a] construction permit has been

completed in accordance with the construction permit, the State

Uniform Construction Code and any ordinance implementing said

code." N.J.S.A. 52:27D-121; see also N.J.S.A. 52:27D-133;

N.J.A.C. 5:23-1.4. A CCO addresses whether there are any

violations of construction regulations or unsafe conditions on a

property. "A [CO]'shall be issued by the enforcing agency when

all of the work covered by a construction permit shall have been

completed in accordance with the permit, the code, and other

applicable laws and ordinances.'" DKM Residential Props. Corp. v.

Twp. of Montgomery, 363 N.J. Super. 80, 89 (App. Div. 2003)

(quoting N.J.S.A. 52:27D-133), rev'd on other grounds, 182 N.J.

286 (2005). "Required provisions of every certificate of occupancy

include: 'that the completed project meets the conditions of the

construction permit, the approved drawings including all

amendments, and all prior approvals' and that all necessary

inspections have been completed and that the completed project

meets the requirements of the regulations.'" Ibid. (emphasis

added) (quoting N.J.A.C. 5:23-2.24(a)(1) and (3)).

19 A-1309-13T4
 Applying these definitions, we find no error in either of the

judges' determinations in this matter.

Affirmed.

20 A-1309-13T4