BOROUGH OF HIGHLAND PARK VS. MITCHELL S. CAPPELL (C-000195-16, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1989-17T2

BOROUGH OF
HIGHLAND PARK,

Plaintiff-Respondent,

v.

MITCHELL S. CAPPELL,

Defendant-Appellant.
________________________

Argued November 15, 2018 – Decided June 28, 2019

Before Judges Simonelli, O'Connor and DeAlmeida.

On appeal from the Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket No. C-
000195-16.

Elliot D. Ostrove argued the cause for appellant
(Epstein Ostrove, LLC, attorneys; Elliot D. Ostrove, on
the briefs).

Michael A. Cifelli argued the cause for respondent
(Florio Kenny Raval, LLP, attorneys; Michael A.
Cifelli, of counsel and on the brief).
PER CURIAM

Defendant Mitchell S. Cappell appeals from a November 20, 2017 order

that, among other things, denied his and granted plaintiff Borough of Highland

Park's (Borough) motion for summary judgment. After examining the record

and applicable legal principles, we reverse and remand for further proceedings.

I

A

We first address the trial court's decision to grant the Borough summary

judgment. The salient facts, derived from the motion record and viewed in the

light most favorable to defendant, see Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 523 (1995), are as follows.

In 2013, defendant owned a house in the Borough. Defendant wanted to

renovate the house and, in June 2013, obtained a construction permit from the

Borough's Construction Office. The permit indicates the work to be performed

was the renovation of the second floor and to "add a level." The permit also

states, "Drawings to follow." It is not disputed the term "drawings" refers to

construction plans.

On November 22, 2015, almost two-and-one-half years after defendant

commenced construction and renovation on the house, Scott Brescher, the

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construction officer for the Borough, issued a "stop construction" order to

defendant. A copy of this order was not included in the record, and the record

does not otherwise reveal why this order was issued.

Because the roof was not complete, defendant sought permission from the

Borough to cover the house, in order to prevent rain and snow from entering the

structure. On December 15, 2015, the Borough's attorney contacted defendant's

attorney and advised that "work may continue to close the building." Defendant

resumed work to cover the top of the house in order to protect it from the

elements.

On January 11, 2016, the Borough issued to defendant a notice and order

of penalty, which imposed a fine of $2500 because defendant continued to work

on the house after the issuance of the stop construction order the previous

November. Defendant's attorney contacted the Borough's attorney and

explained defendant did the additional work for the purpose of closing the roof

or covering the house.

On January 22, 2016, the Borough's attorney sent a letter to defendant's

attorney stating, "Highland Park agrees that your client can certainly secure the

property by installing immediately sheathing (the base plywood) on the existing

new frame of the roof." The next day there was a snowstorm and, because the

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roof was not complete and the covering over the house was inadequate, snow

and ice entered the house.

After the storm, defendant continued to work on the house, but solely for

the purpose of protecting it from the weather. On February 18, 2016, the

Borough issued another notice and order of penalty to defendant, imposing a

fine of $2000 because defendant failed to comply with the January 11, 2016

notice. When defendant's agent asked Brescher why the order was issued when

the Borough's attorney had given defendant permission to "close up the house,"

Brescher stated the permission given to defendant pertained only to the days

preceding the snowstorm in January.

Defendant appealed the stop construction order and the two penalties the

Borough imposed on him to the Middlesex County Construction Board of

Appeals (Board). A copy of the Board's decision was not provided in the record,

but it is undisputed that, because there was a question whether defendant had

been properly served with the stop construction order, as well as the two notices

and orders of penalty, the Board vacated all of the orders and penalties.

On August 17, 2016, the Borough issued a new stop construction order

(August 2016 order). The order stated it was entered because defendant did not

have at the construction site or submit to the construction office stamped, sealed

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plans for the construction he intended to perform on his property, in violation of

N.J.A.C. 5:23-2.16(e), and also failed to provide "zoning documentation"

pertaining to the addition to the house. The order does not identify the specific

zoning documentation defendant was required to produce. The August 2016

order also stated the failure to comply with such order may result in the

assessment of a penalty of up to $50 per day per violation.

In November 2016, plaintiff filed a verified complaint alleging, among

other things, that defendant was in violation of the August 2016 order, because

he failed to provide to the Borough plans that were drawn to scale and did not

obtain a resolution from the Highland Park Zoning Board of Adjustment

granting defendant a height variance.

Defendant filed an answer and verified counterclaim. He contended that,

in reliance upon the Borough approving his permit in June 2013, he performed

extensive work upon the house for approximately two-and-one-half years. Then,

in November 2015, plaintiff issued the stop construction order. Thereafter, with

the Borough's permission, defendant worked on the house for the purpose of

protecting it from the weather yet, in January and February 2016, plaintiff

imposed penalties upon defendant.

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 In his counterclaim, defendant alleges the Borough imposed such

penalties for the purpose of harassing him and devaluing his property. He claims

he is entitled to damages on the grounds the Borough's actions violated 42

U.S.C. § 1983, 42 U.S.C. § 1986, the New Jersey Civil Rights Act, N.J.S.A.

10:6-2, and were an abuse of process.

In the fall of 2017, the Borough filed a motion and defendant a cross-

motion for summary judgment. At that time, the discovery end date was April

15, 2018. The principal relief the Borough sought was that the court grant it

summary judgment, and that defendant be ordered to (1) remove all construction

equipment and debris from the subject property; (2) restore the roof to its pre -

construction height; and (3) cease using the property until there had been a

"complete remediation to address the illegal construction." In addition, the

Borough sought the dismissal of defendant's counterclaim, arguing the condition

about which defendant complained in such pleading was created by his violation

of the law.

In its motion, the Borough did not seek that plaintiff pay the $2000 penalty

the Borough sought in the August 2016 order, or argue defendant's plans were

insufficient because they were not stamped or sealed. Instead, the Borough

contended it was entitled to the relief it sought because defendant failed to

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submit plans drawn to scale, in violation of N.J.A.C. 5:23-2.15(f)(1), making

the permit issued to defendant invalid. 1

In response to the Borough's motion, defendant submitted a certification

claiming that after he submitted his plans to the Borough, Scott Luthman, the

Borough's construction officer in 2013, told him he could "go ahead with

construction." Luthman never complained about the construction defendant

undertook at the house, even though Luthman was "observing" the property

every few weeks. Defendant further certified he saw a copy of a document in

the Construction Office's file indicating the Borough approved the plans he had

submitted.

In reply to defendant's certification, the Borough submitted a certification

executed by Luthman, who claimed defendant never submitted any plans "as

required." Luthman stated that because defendant did not submit any plans as

"required," defendant was only permitted to "begin demolition and that was

explained to him by me." It is not clear from Luthman's certification whether

1
It is not disputed the borough lost its file pertaining to defendant's project on
the house, and did not have a copy of the plans defendant submitted to the
borough in 2013. However, the record indicates that, in response to discovery
requests, defendant produced the plans he purportedly submitted to the borough
in 2013.
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defendant failed to submit plans that were drawn to scale, as required by

N.J.A.C. 5:23-2.15(f)(1), or whether defendant did not submit any plans at all.

The trial court granted the Borough's motion for summary judgment. The

court determined defendant failed to submit to the Borough "plans . . . consistent

with the [C]ode that would allow [defendant] to continue construction." The

court essentially found the plans insufficient because they were not drawn to

scale and that such deficiency invalidated defendant's permit, precluding him

from engaging in further construction on the house.

On the basis of those findings, the court entered the November 20, 2017

order granting the Borough's motion for summary judgment and denying

defendant's motion for summary judgment. The order also directed defendant

to fully restore the exterior of the house to its pre-construction condition, and

remove all exterior scaffolding, construction equipment, and construction

debris, within thirty days. Further, defendant was ordered to restore the roof to

its pre-construction height and condition within sixty days. Defendant appeals

from the November 20, 2017 order.

B

On appeal, defendant's contentions pertaining to the trial court granting

the Borough's motion for summary judgment are as follows: (1) the court failed

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to make adequate findings of fact and conclusions of law; (2) expert testimony

is required to determine whether or not the plans he submitted to the Borough

were drawn to scale; (3) granting summary judgment was premature because the

discovery period had not expired and defendant had not concluded conducting

discovery; and (4) there existed genuine issues of material fact, which warranted

the denial of summary judgment.

In considering defendant's appeal, we must adhere to well-settled

principles applicable to summary judgment motions. The trial court must

"consider whether the competent evidential materials presented, when viewed

in the light most favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." Brill, 142 N.J. at 540; see also R. 4:46-2(c). The trial court

cannot resolve contested factual issues but instead must determine whether there

are any genuine factual disputes. Agurto v. Guhr, 381 N.J. Super. 519, 525

(App. Div. 2005). If there are materially disputed facts, the motion for summary

judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003). We

must observe the same standards when we review an order granting summary

judgment, including that we view the record in a light most favorable to the non-

moving party. See W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012).

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 We turn to defendant's first contention, specifically, that the quality of the

court's findings and facts and conclusions of law was insufficient. We agree the

court's explanation of why it found the Borough entitled to summary judgment

was limited. However, a close reading of the court's comments reveals the court

implicitly found defendant's permit invalid because the plans defendant

submitted were not drawn to scale, as required by N.J.A.C. 5:23-2.15(f)(1), and

that such deficiency was tantamount to the Borough having issued an invalid

permit to defendant. Because without a valid permit he did not have the

authority to conduct any construction on the house, the court determined

defendant was obligated to restore the property to the condition it was in before

construction began. In the final analysis, we do not have a quarrel with the

quality of the court's explanation of its finding.

Defendant next contends expert testimony is required to determine if the

plans were drawn to scale. We disagree. The admissibility of expert testimony

is governed by N.J.R.E. 702, which provides, "[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify thereto in the form of an opinion

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or otherwise." However, this Rule does not mean such testimony is always

required.

Expert testimony is needed only when "a subject is so esoteric that jurors

of common judgment and experience cannot form a valid conclusion." Hopkins

v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993) (quoting Wyatt v. Wyatt, 217

N.J. Super. 580, 591 (App. Div. 1987)). The need for expert testimony is

ordinarily a matter resting within the discretion of the trial judge. State v.

Griffin, 120 N.J. Super. 13, 20 (App. Div. 1972).

Here, we are satisfied the trial court did not abuse its discretion when it

determined the plans were not drawn to scale. It is obvious the plans are devoid

of any graphic bar scale, legend, or other tool to enable the reader to ascertain

the size or dimensions of the house, let alone the proposed construction or

renovations to such structure.

Defendant argues that granting the Borough summary judgment was not

only premature because discovery had not been completed, but also there exists

genuine issues of material fact that preclude the entry of summary judgment.

We agree with both contentions.

Defendant argues the Borough was equitably estopped from taking action

against him to thwart continued construction on his home. As noted, in response

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to the Borough's motion for summary judgment, defendant certified that, after

defendant obtained a permit and submitted his plans to the Construction Office,

Luthman told defendant he could proceed with the planned construction. Over

the next two-and-a-half years, Luthman never voiced any objection to the

ongoing construction at the house, even though he periodically visited the site.

Luthman denies defendant's allegations, but as this is the Borough's motion for

summary judgment, we must accept as true defendant's factual assertions. See

Brill, 142 N.J. at 524.

Defendant contends he reasonably relied upon the Borough's

representation that he was permitted to proceed with his plans to renovate the

house, permission that was granted after defendant received the permit and

submitted the subject plans. Defendant claims he should not be prejudiced

because he relied upon the construction officer to his detriment. Therefore,

defendant contends, the Borough must be estopped from taking action to

invalidate the permit and thwart construction on the house, and the provisions

in the November 20, 2017 order granting plaintiff relief reversed.

"The essential principle of the doctrine of estoppel is that one may, by

voluntary conduct, be precluded from taking a course of action that would work

injustice and wrong to one who with good reason and in good faith has relied

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upon such conduct." Grasso v. Borough of Spring Lake Heights, 375 N.J. Super.

187, 194 (Law Div. 2003) (citing Middletown Twp. Policemen's Benevolent

Ass'n. Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000)) aff'd in

part, 375 N.J. Super. 41 (App. Div. 2004).

In Motley v. Borough of Seaside Park Zoning Bd. of Adjustment, 430 N.J.

Super. 132 (App. Div. 2013), we noted that:

[i]n the specific context of the issuance of building
permits, the application of estoppel requires proof of
four elements: (1) the building permit was issued in
good faith, (2) the building inspector acted "within the
ambit of [his] duty" in issuing the permit, (3) a
sufficient question of interpretation of the relevant
statutes or zoning ordinances as to "render doubtful a
charge that the . . . official acted without any reasonable
basis" for issuing the permit, and (4) there was "proper
good faith reliance" on the issuance of the permit.

[Id. at 152 (second alteration in original) (quoting Jesse
A. Howland & Sons, Inc. v. Borough of Freehold, 143
N.J. Super. 484, 489 (App. Div. 1976)).]

We recognize the doctrine of equitable estoppel is "rarely invoked against

a governmental entity." Middletown, 162 N.J. at 367 (quoting Wood v. Borough

of Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div.1999)). Equitable

estoppel may only be applied against a governmental entity "where interests of

justice, morality and common fairness clearly dictate that course." Id. at 367

(quoting Gruber v. Mayor & Twp. Comm., 39 N.J. 1, 13 (1962)). Nonetheless,

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here, for the reasons stated, there are material questions of fact in dispute on the

issue whether the Borough should be estopped from disputing the validity of the

permit. In addition, defendant contended the Borough acted in bad faith when

it issued the stop construction orders and imposed penalties, which defendant

alleges was, among other things, an abuse of process.

Accordingly, it was premature for the court to grant the Borough summary

judgment and the derivative relief it requested. In addition, defendant had not

yet completed discovery and it cannot be said further discovery would have been

futile. See Driscoll Const. Co. v. State, Dept. of Transp., 371 N.J. Super. 304,

317 (App. Div. 2004) ("A trial court should not grant summary judgment when

the matter is not ripe for such consideration, such as when discovery has not yet

been completed."). Accordingly, we reverse those provisions of the November

20, 2017 order granting summary judgment to plaintiff and the other relief

entered in plaintiff's favor.

II

Defendant argues the trial court erred when it denied his motion for

summary judgment. It is not clear from the record what defendant argued in

support of his motion, thwarting our review of the merits of his position.

However, contrary to Rule 1:7-4, the trial court failed to provide any reason for

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denying defendant's motion. Therefore, we vacate the provision in the

November 20, 2017 order denying defendant's motion for summary judgment.

On remand, the court shall provide to the parties its reasons for denying

defendant's motion for summary judgment, within sixty days.

Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.

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