NOT FOR PUBLICATION WITHOUT THE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-3735-17T1
ZUDHI KARAGJOZI and
LYSBETH KARAGJOZI, JOHN
RYAN and KAREN RYAN, and
DOUGLAS BROWN and
KATHY BROWN,
Plaintiffs-Appellants/
Cross-Respondents,
v.
DAMON RISUCCI and MRS.
RISUCCI, DENNIS PERAS,
BOROUGH OF RUMSON and
DAVID MARKS,
Defendants-Respondents/
Cross-Appellants.
______________________________
Argued March 11, 2019 – Decided April 12, 2019
Before Judges Sabatino and Mitterhoff.
On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-2127-15.
Fred S. Dubowsky argued the cause for appellants/
cross-respondents.
Lawrence H. Shapiro argued the cause for respondents/
cross-appellants Damon Risucci and Tracy Risucci
(Ansell Grimm & Aaron, PC, attorneys; Lawrence H.
Shapiro, of counsel; Rahool Patel, on the briefs).
PER CURIAM
Plaintiffs Zudhi Karagjozi, Lysbeth Karagjozi, John Ryan, Karen Ryan,
Douglas Brown, and Kathy Brown (collectively "plaintiffs") appeal the trial
court's January 31, 2018 order granting summary judgment to defendants
Damon and Mrs. Risucci (collectively "defendants") on plaintiffs' claims for
nuisance and seeking a writ of mandamus. In the underlying lawsuit, plaintiffs
alleged that defendants violated several municipal zoning ordinances when they
constructed their home. Relatedly, plaintiffs asserted that officials of the
Borough of Rumson ("the Borough") failed to require defendants to seek a
variance to the extent that the improvements deviated from the applicable
ordinances. Finally, plaintiffs asserted that defendants' construction
unreasonably interfered with the use and enjoyment of their property because
the construction put all three of their houses at risk of damage from pote ntial
flooding occurrences.
Defendants cross-appeal the trial court's denial of their motion for
attorney's fees and costs pursuant to Rule 1:4-8. Having reviewed the record,
A-3735-17T1
2
and in light of the applicable law, we affirm both the trial court's grant of
summary judgment and the denial of defendants' motion for attorney's fees and
costs.
We recite the relevant facts and procedural history from the record. On
November 9, 2007, defendants purchased real property located in Rumson, New
Jersey (the “Property”). Plaintiffs, the Brown, Ryan, and Karagjozis families,
own properties that are located within two hundred feet of the Property.
In October 2011, defendants retained the services of Andrew R. Stockton
(“Stockton”), a professional engineer and land surveyor, to assist them in
applying for a permit to demolish the house that existed on the Property and to
construct a new home. Plaintiffs, with Stockton's help, submitted the application
to the Borough’s Zoning Officer, Frederick Andre (“Zoning Officer”).
Thereafter, the application was reviewed by the Borough Engineer, David Marks
of T&M Associates (“Borough Engineer”), and the Freehold Soil Conservation
District (“FSCD”).
On December 28, 2011, the FSCD granted certification of defendants' soil
erosion and sediment control plans with certain conditions. Based on comments
from the Borough Engineer, Stockton revised the plans and resubmitted them on
A-3735-17T1
3
February 8, 2012. On March 7, 2012, the Borough issued a Certificate of
Approval for the demolition of the previously existing house.
By correspondence dated March 7, 2012, the Borough Engineer reviewed
the resubmitted plot plan, including a Stormwater Management report submitted
by Stockton dated February 6, 2012, and found that the revised plans addressed
his previous comments and conditionally approved the grading plan. In granting
that approval, the Borough Engineer found: "[T]he proposed work will not have
a significant impact on adjacent properties or surrounding municipal
infrastructure. No opinion is expressed regarding the correctness, su itability or
practicality of the plan for development of the property."
On May 4, 2012, the Zoning Officer issued a zoning permit for the
construction of the defendants' new house. He did not indicate that any of
defendants' plans lacked conformity to the zoning requirements.
Construction of the new home, including grading for the pool, patio, and
cabana, began on or about May 16, 2012. Because the Property sloped toward
the lagoon and bulkhead, in order to facilitate construction of the pool, the plans
called for a portion of the rear yard area to be levelled and for retaining walls to
be installed around the graded area.
A-3735-17T1
4
The Property is located along a man-made lagoon and, as such, an
application for a permit needed to be submitted to the New Jersey Department
of Environmental Protection (“DEP”), pursuant to the Coastal Area Facilities
Review Act and accompanying regulations (“CAFRA”). On September 4, 2012,
the DEP advised that it did not require a waterfront development permit for the
construction of the new house; however, it did require a CAFRA permit for the
portion of the work at the Property that included reconstruction of the existing
pier and bulkhead.
On October 1, 2012, defendants submitted a CAFRA application.
Pursuant to CAFRA, notice of the application was given to all record property
owners within 200 feet of the Property, including plaintiffs. On October 19,
2012, the DEP granted plaintiffs a waterfront development permit for the
reconstruction of the existing fixed pier, two mooring piles, and bulkhead. In
addition, on January 8, 2013, the DEP issued a CAFRA permit for the house,
pool, and certain other improvements on the Property.
Beginning in 2013, plaintiffs complained to the Borough about various
conditions of the ongoing construction at the Property, including concerns about
the grading in the rear yard. As a result of plaintiffs' complaints, the Borough
halted construction at least three times to conduct further inspections. On each
A-3735-17T1
5
occasion, the Borough found no issues of concern or deviations from the
approved plans, and therefore allowed work to continue. On August 22, 2013,
the Zoning Officer issued defendants a zoning permit for the construction of
their pool.
On May 28, 2014, the FSCD issued a Report of Compliance. On June 2,
2014, the Borough issued defendants a Temporary Certificate of Occupancy
(“TCO”) with minor open issues including completing the driveway and
confirming the capacity of the installed drywells. The TCO included a response
from Michele Kropilak, the Regional Supervisor of the Coastal & Land Use
Compliance & Enforcement Bureau of the DEP, responding to plaintiffs'
complaints. In her response, Ms. Kropilak stated that the improvements did not
violate flood hazard regulations and that the bulkhead was properly constructed.
In a June 3, 2014 letter, the Borough Engineer opined that
[t]he drainage patterns of the as-built condition are
consistent with the intent of the approved grading plan.
However, several minor discrepancies exist between
the proposed and as-built conditions and should be
noted. The finished floor elevations, as well as the rear
improvements such as the patio area and in-ground pool
elevations are approximately 1.3 feet higher than
originally proposed. Additionally, two seepage pits
have been installed, one to the north of the patio area
and on to the south, as opposed to the originally
proposed single seepage pit to the southeast of the
dwelling. Lastly, it should be noted that the proposed
A-3735-17T1
6
driveway improvements have not yet been completed.
Continued compliance with . . . the Borough's
Stormwater Management Ordinance is required.
It has been brought to our attention that neighboring
residents are concerned about possible flooding onto
their adjoining properties. As previously indicated,
there should be no negative impacts from stormwater
runoff as the drainage patterns are consistent with the
approved grading plan. Although portions of the site
have been raised from existing conditions, NJDEP
regulations do not govern infill within tidally
influenced water bodies since the fill does not impact
tidal flood elevations.
On August 20, 2014, plaintiffs' attorney sent defendants a letter seeking
to "meet and discuss the problem" with defendants' construction. The letter was
followed by correspondence from the plaintiffs' attorney to the Borough
Engineer and construction officials claiming that a zoning variance was required
for the house.
On November 4, 2014, the TCO was extended for sixty days because
defendants were still awaiting the delivery and installation of basement railings.
Nonetheless, the Borough recognized that the open grading issues from the
initial TCO were resolved.
On November 10, 2014, plaintiffs' counsel again wrote to the Borough
asserting that permits were issued without proper zoning approval. On
December 1, 2014, Stockton, defendants' engineer and land surveyor, confirmed
A-3735-17T1
7
that the total as-built lot coverage for the Property was less than that approved
on the plot plan. Stockton also noted that defendants installed two seepage pits
instead of the one approved on the plan, resulting in additional storage volume.
Notably, Stockton confirmed that "the two installed seepage pits provide more
storage volume than the original design and are therefore sufficient for the
project."
On December 18, 2014, the FSCD issued a Final Report of Compliance.
As a result of continuing complaints from plaintiffs, on April 23, 2015, the
Borough Engineer, after conducting an on-site visit, again confirmed the
sufficiency of the as-built grading plan and stated that he had "no objection to
the issuance of a Certificate of Occupancy [("CO")]." The Borough Engineer
reiterated the statements made in his June 3 letter, and stated that "the
deficiencies listed in my June 3, 2014 letter have been sufficiently addressed."
The Borough Engineer again stated, "It has been brought to our attention that
neighboring residents are concerned about possible flooding onto their adjoining
properties. As previously indicated, there should be no negative impacts from
stormwater runoff as the drainage patterns are consistent with the approved
grading plan." On April 23, 2015 the Borough issued a CO.
A-3735-17T1
8
On June 8, 2015, plaintiffs filed the instant litigation, seeking damages for
nuisance and seeking a writ of mandamus.
In the course of discovery, plaintiffs failed to identify any actual damages
suffered as a result of the alleged nuisance. Mrs. Brown conceded in her
deposition testimony that defendants' property has not "unreasonably interfered
with [her] use and enjoyment of [her] property[,]" and that there is nothing that
she could previously do on her property prior to the construction of defe ndants'
home that she cannot now do after the construction. Mrs. Brown stated that,
prior to defendants' construction, her property experienced flooding from the
canal during storms, high tide, and full moons. The flooding has continued since
defendants' constructions, but it has not "been any different to what [the Browns]
experienced in the past." Mr. Brown expressed concern about potential
additional flooding due to the height of defendants' retaining wall. The Browns
admit that no such increased flooding has actually occurred, but they fear it may
happen in the future if a superstorm such as Sandy happens.
Mr. and Mrs. Ryan expressed concerns with "the proximity of
[respondents'] wall next to their fence." According to Mrs. Ryan, "[a]nyone can
walk down the property line across their wall and have access to our yard. We
have a pool. Their wall is higher than our pool fence." Mrs. Ryan conceded,
A-3735-17T1
9
however, that no one has utilized defendants' retaining wall to gain access into
the Ryans' backyard since the wall was erected over four years ago.
The Karagjozis testified that they are concerned about the possibility of
their "house getting damage by water coming from [defendants'] yard[,]" which
they conceded has not happened to date. The Karagjozis expressed that the use
and enjoyment of her property has been negatively impacted because they
continually fear damage to their property as a result of potential future storms.
Plaintiffs and defendants retained experts who submitted reports.
Plaintiffs' expert, Frank J. Baer, Jr., P.E., P.P., prepared an "Existing Conditions
Plan," which summarized several ways in which the as-built construction
deviated from the approved plans and municipal ordinances, including that
defendants' retaining wall, patio, and steps were built within the twenty-five foot
setback requirement. As to damages, plaintiffs' expert opined "that beyond the
failure to comply with municipal ordinance requirements, such encroachment
into this waterway setback is similar in nature to encroachment by a structure
into an [sic] mapped floodway similar to a stream encroachment that will impact
water/flood levels during the 100 year storm due to displacement of volume by
the encroachment of the wall, steps, etc. As a result, there is a negative impact
A-3735-17T1
10
on adjacent properties in that there will be an increase in water levels resulting
in greater areas that are displaced[.]"
Defendants' expert's report disputed that the retaining wall was within the
setback requirements. Defendants' expert opined that defendants' property has
"no impact on drainage flow paths and does not cause stormwater runoff impacts
to neighboring properties any differently than the pre-existing condition."
On January 19, 2018, the trial court granted defendants' motion for
summary judgment and dismissed the entire complaint against them without
prejudice. The trial court found that defendants were entitled to summary
judgment because plaintiffs had not established that they suffered damages. The
trial court made no specific findings regarding plaintiffs' claims that defendants'
property violated the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-1
to -163, or municipal ordinances. The trial court concluded that plaintiffs'
MLUL claims were not properly before the court as plaintiffs failed to formally
intervene in the matter before the zoning board or file an action in lieu of
prerogative writs to appeal the board's determination that variances were not
required.
On March 2, 2018, the court heard oral argument on defendants' motion
for attorney's fees and costs. In an oral opinion, the court denied the motion.
A-3735-17T1
11
Defendants argued that their motion should be granted because after discovery
took place, "it became crystal clear that . . . there was just absolutely no basis
for this suit." The trial court denied the motion, finding that
[a]lthough I did grant summary judgment and dismiss
the claim, I do think that there was a basis for the
claims. I don't think they rise to the level of being
frivolous as set forth in 1:4-8 and the case law
interpreting same. I do think that there may have been
merits to these claims, however, counsel chose the
wrong forum by filing here as opposed to availing
themselves relief available under the municipal land
use law.
In light of the prevailing authority, the trial court concluded that the
complaint did not "rise[] to the level of being frivolous. There may be a viable
claim at a later date, it's just not today, as well as I think counsel adjudicated
this matter in an incorrect forum as opposed to where I think it should have been
addressed." This appeal ensued.
A. Plaintiffs' failure to exhaust administrative remedies
On appeal, plaintiffs first argue that they did not need to exhaust
administrative remedies under Rule 4:69-5, claiming that it would have been
futile to seek the sought-after relief before the zoning board. We disagree.
Actions in lieu of prerogative writs "shall not be maintainable as long as
there is available a right of review before an administrative agency which has
A-3735-17T1
12
not been exhausted . . . [e]xcept where it is manifest that the interest of justice
requires otherwise[.]" R. 4:69-5. "The exhaustion of administrative remedies
is not an absolute prerequisite to seeking appellate review, however. Exceptions
are made when the administrative remedies would be futile, when irreparable
harm would result, when jurisdiction of the agency is doubtful, or when an
overriding public interest calls for a prompt judicial decision." N.J. Civ. Serv.
Ass'n v. State, 88 N.J. 605, 613 (1982) (citing Garrow v. Elizabeth Gen. Hosp.
and Dispensary, 79 N.J. 549, 561 (1979)).
Our Supreme Court has held that a party need not exhaust administrative
remedies when the zoning board is unable to provide the relief sought. See
Riggs v. Long Beach Twp., 101 N.J. 515, 525-26 (1986). In Riggs, the plaintiffs
owned property that was acquired by eminent domain through a public
referendum. Id. at 518-19. The defendant township later passed an ordinance
that re-zoned plaintiffs' property to a lower density zone. Id. at 519. The
plaintiffs brought suit in the Superior Court alleging that the ordinance was
unconstitutional and aimed at lowering the market value of their property. Id.
at 520.
A-3735-17T1
13
We concluded that plaintiffs were barred from bringing their claims to the
Superior Court without first exhausting their administrative remedies, but the
Supreme Court reversed, noting:
A local planning board's consideration of an application
for a variance in these circumstances would have no
bearing on the issues raised by the plaintiffs' claim that
the ordinance is unconstitutional. The board decision
would not answer the question whether the ordinance
impermissibly affects only the plaintiffs' property, and
it would not have any bearing on whether the ordinance
was arbitrary, unreasonable, or unconstitutional.
[Id. at 525-56.]
The Court concluded that plaintiffs' claims involved legal issues that
needed to be determined by a court. Id. at 526. See also Borough of Matawan
v. Monmouth Cty. Bd. of Tax'n, 51 N.J. 291, 297 (1968) (finding that exhaustion
of administrative remedies would be an "idle gesture" where an "administrative
body would be asked to declare illegal its own actions under the statute").
In this case, in contrast, plaintiffs do not challenge the validity or
constitutionality of the zoning ordinances, which would be within the exclusive
purview of the Superior Court. See Riggs, 101 N.J. at 520. To the contrary,
plaintiffs rely on the validity of the ordinances in support of their claim that the
zoning board should have required defendants to seek variances based on the
minor deviations from those ordinances.
A-3735-17T1
14
Moreover, plaintiffs have not established that bringing their claims to the
zoning board would have been "futile." See N.J. Civ. Serv. Ass'n, 88 N.J. at
613. Unlike in Riggs, where the Supreme Court held that exhausting
administrative remedies would have been futile because the board could not
afford the relief sought, the relief sought here could have been granted by the
zoning board. See 101 N.J. at 525-26. As plaintiffs contend that defendants'
home was constructed in violation of local zoning ordinances, they could have
brought their concerns to the local zoning board, which has the authority to
enforce local zoning ordinances. See N.J.S.A. 40:55D-70. Thus, the trial court
correctly concluded that plaintiffs were required to exhaust their administrative
remedies before bringing their claim to the trial court. See R. 4:69-5.
B. Writ of Mandamus
Plaintiffs next argue that they did not need to exhaust administrative
remedies because they are seeking a writ of mandamus due to the inactivity and
indifference of the Borough officials. We disagree.
In an action in lieu of mandamus, a party seeks equitable relief from the
trial court "to command the performance of a public duty which ought to be
performed." Garrou v. Teaneck Tryon Co., 11 N.J. 294, 302 (1953); Mullen v.
Ippolito Corp., 428 N.J. Super. 85, 102 (App. Div. 2012). We review a trial
A-3735-17T1
15
court's decision whether to grant a writ of mandamus for abuse of discretion.
Ibid. "[I]n appropriate situations mandamus will lie to compel municipal
officials to enforce ordinances, zoning and others, provided the plaintiff's right
and the defendant's duty are clear and other adequate relief is unavailable."
Garrou, 11 N.J. at 303. A party seeking a writ of mandamus must establish
(1) a showing that there has been a clear violation of a
zoning ordinance that has especially affected the
plaintiff; (2) a failure of appropriate action despite the
matter having been duly and sufficiently brought to the
attention of the supervising official charged with the
public duty of executing the ordinance; and (3) the
unavailability of other adequate and realistic forms of
relief.
[Mullen, 428 N.J. Super. at 103 (citing Garrou, 11 N.J.
at 302-04).]
In Mullen, the plaintiffs lived next door to an existing nonconforming
motel. Id. at 87-88. Over a period of thirteen years, the plaintiffs complained
to municipal officers that the defendant motel owners were expanding their
motel in violation of municipal ordinances and housing codes. Id. at 88. The
plaintiffs then brought suit against the motel owners and the munic ipality in the
Superior Court, contending that the municipal officers ignored their complaints.
Ibid. Specifically, the plaintiffs alleged that the motel owners unlawfully
expanded the snack bar, unlawfully expanded the boardwalk near the motel, and
A-3735-17T1
16
did not have the number of parking spaces required by local ordinance. Id. at
91-94, 95-96. Regarding the snack bar and the boardwalk, evidence in the
record established that the zoning officer stated that no expansion took place
and any alterations did not require zoning board approval. Id. at 93. The
evidence further suggested that municipal officers did not take any action
regarding plaintiffs' complaint about the violation of the parking space
ordinance. Id. at 96. The trial court granted summary judgment to the municipal
defendants because plaintiffs failed to exhaust their administrative remedies
under Rule 4:69-5. Id. at 88. In reversing the grant of summary judgment and
remanding the matter for further proceedings, we noted:
Plaintiffs presented concrete evidence establishing a
pattern of indifference by the municipal officials
charged with the enforcement of the local zoning . . .
ordinances. The evidence, viewed in the light most
favorable to plaintiffs, show plaintiffs repeatedly
complained to these officials that the [motel] was
expanding and intensifying its business activities in
defiance of municipal zoning ordinances. Plaintiffs'
actions in this respect are similar to the letters written
by the plaintiff's attorney in Garrou. Like Garrou,
plaintiffs were either ignored or told, in a summary and
dismissive fashion, that enforcement action against the
[motel] was unwarranted.
[Id. at 103-04.]
A-3735-17T1
17
As an initial matter, unlike the facts in Garrou and Mullen, plaintiffs'
complaints to the Borough were not summarily ignored. Rather, in response to
the residents' concerns, the Borough halted construction on defendants' property
at least three times to conduct further inspections, each time finding that there
should be no negative impacts from stormwater runoff.
Regardless, plaintiffs are not able to maintain the current action against
defendants as an action in lieu of prerogative writ for mandamus because the
writ is used to compel public officials to perform a duty, such as enforcin g a
zoning ordinance. See Garrou, 11 N.J. at 302. Unlike in Mullen and Garrou,
plaintiffs bring this appeal against private property owners, who have no
authority to enforce zoning ordinances. See 428 N.J. Super. at 88.
Thus, we conclude that the trial court correctly dismissed plaintiffs'
claims against defendants to the extent they were seeking a writ of mandamus,
as those claims clearly are barred for failure to state a claim against these
defendants. R. 4:6-2.
C. Nuisance
Plaintiffs next argue that the trial court incorrectly granted summary
judgment to defendants dismissing their claims for nuisance. Plaintiffs contend
that the trial court incorrectly determined that they are not suffering any present
A-3735-17T1
18
harm and contend that to the extent they allege future harm, the harm is
"inevitable." We disagree with both contentions, and conclude that the trial
court correctly granted summary judgment to defendants.
The standard of review for a grant of summary judgment is de novo.
Conley v. Guerrero, 228 N.J. 339, 346 (2017) (citing Templo Fuente De Vida
Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)).
[W]hen deciding a motion for summary judgment under
Rule 4:46–2, the determination whether there exists a
genuine issue with respect to a material fact challenged
requires the motion judge to consider whether the
competent evidential materials presented, when viewed
in the light most favorable to the non-moving party in
consideration of the applicable evidentiary standard,
are sufficient to permit a rational factfinder to resolve
the alleged disputed issue in favor of the non-moving
party.
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
523 (1995).]
"[S]ummary judgment will be granted if there is no genuine issue of
material fact and 'the moving party is entitled to a judgment or order as a matter
of law.'" Conley, 228 N.J. at 346 (citing Templo Fuente, 224 N.J. at 199). In
reviewing a grant of summary judgment, appellate courts consider "whether the
evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law." Brill,
A-3735-17T1
19
142 N.J. at 536 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 251-52
(1986)).
"A cause of action for private nuisance derives from the defendant's
'unreasonable interference with the use and enjoyment' of the plaintiff's
property." Ross v. Lowitz, 222 N.J. 494, 505 (2015) (quoting Sans v. Ramsey
Golf & Country Club, Inc., 29 N.J. 438, 448 (1959)); Ruiz ex rel. Ruiz v.
Kaprelian, 322 N.J. Super. 460, 472 (App. Div. 1999) ("The essence of a private
nuisance is an unreasonable interference with the use and enjoyment of land.").
New Jersey courts analyze nuisance claims in accordance with the Restatement
(Second) of Torts, section 822 in particular. Ross, 222 N.J. at 505 (quoting
Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 389 (App. Div.
2011)); Birchwood Lakes Colony Club, Inc. v. Borough of Medford Lakes, 90
N.J. 582, 592 (1982).
Restatement Section 822 identifies the elements of a cause of action for
private nuisance:
One is subject to liability for a private nuisance if, but
only if, his conduct is a legal cause of an invasion of
another's interest in the private use and enjoyment of
land, and the invasion is either
(a) intentional and unreasonable, or
A-3735-17T1
20
(b) unintentional and otherwise actionable under the
rules controlling liability for negligent or reckless
conduct, or for abnormally dangerous conditions or
activities.
[Ross, 222 N.J. at 505-06 (citing Restatement (Second)
of Torts § 822 (1979).]
We conclude that the trial court properly granted summary judgment to
defendants on plaintiffs' nuisance claims based on its finding that plaintiffs have
not established that they suffered any damages. We note that plaintiffs concede
that defendants' property has to date not impacted the use and enjoyment of their
property; rather they merely allege fears of future interference that may or may
not ever come to pass. See ibid. Thus, plaintiffs cannot establish that they
suffered "an invasion of [their] interest in the private use and enjoyment of
[their] land." See ibid. See also Kaprelian, 322 N.J. Super. at 472.
Plaintiffs' expert report similarly fails to establish that plaintiffs have
sustained any present harm resulting from the construction. The bulk of Mr.
Baer's opinion consists largely of a summary of the ways in which the as-built
construction deviates from the approved plans and from the ordinance. Mr.
Baer's opinion regarding damages, however, is premised on the same speculative
eventuality of what would occur in the future in the event of a 100-year storm.
Specifically, Baer opines that "beyond the failure to comply with municipal
A-3735-17T1
21
ordinance requirements, such encroachment into this waterway setback is
similar in nature to encroachment by a structure into an (sic) mapped floodway
similar to a stream encroachment that will impact water/flood levels during the
100 year storm due to displacement of volume by the encroachment of the wall,
steps, etc. As a result, there is a negative impact on adjacent properties in that
there will be an increase in water levels resulting in greater areas that are
displaced[.]" However, in the four-plus years since the construction was
completed, major storms and weather events have transpired, none of which
triggered the predicted "increase in water levels" beyond what the neighborhood
experienced before the construction.
D. Injunctive Relief
At oral argument, plaintiffs' counsel, while conceding that plaintiffs
have not sustained any actual damages as a result of the construction, averred
that plaintiffs should not be required to await a remedy until they are "standing
knee-deep in water," if and when a superstorm such as Sandy occurs in the
future. To the extent they are seeking injunctive relief, plaintiff have failed to
show any immediate or irreparable harm that would entitle them to such relief.
See Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982) (setting forth factors that
warrant injunctive relief). Defendants' home has been fully constructed since
A-3735-17T1
22
2015. In the intervening four years, none of plaintiffs' feared harms have come
to pass and there is no competent evidence to suggest any causal relation
between any potential future damage and defendants' minor deviations from
the ordinances. For those reasons alone, we conclude that injunctive relief is
not warranted.
E. Defendant's Counterclaim for Attorney's Fees and Costs
Defendants argue in their cross-appeal that the trial court erred in denying
their counterclaim for attorney's fees and costs. Appellate courts review a trial
court's decision whether to award attorneys' fees and costs for an abuse of
discretion. McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div.
2011). Reversal is warranted "only if [the trial court's decision] 'was not
premised upon consideration of all relevant factors, was based upon
consideration of irrelevant or inappropriate factors, or amounts to a clear error
in judgment.'" Id. at 498 (quoting Mason v. Levine, 382 N.J. Super. 181, 193
(App. Div. 2005)).
Under New Jersey's frivolous litigation statute, the court may award a
prevailing party reasonable litigation costs and reasonable attorneys' fees "if the
judge finds at any time during the proceedings or upon judgment that a
A-3735-17T1
23
complaint . . . of the nonprevailing person was frivolous." N.J.S.A. 2A:15 -
59.1(a)(1). A complaint is frivolous where:
(1) The complaint . . . was commenced, used or
continued in bad faith, solely for the purpose of
harassment, delay or malicious injury; or
(2) The nonprevailing party knew, or should have
known, that the complaint . . . was without any
reasonable basis in law or equity and could not be
supported by a good faith argument for an extension,
modification or reversal of existing law.
[N.J.S.A. 2A:15-59.1(b).]
"[F]alse allegations of fact [do] not justify the award of counsel fees,
unless they are made in bad faith, 'for the purpose of harassment, delay or
malicious injury.'" McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J.
546, 561 (1993) (quoting N.J.S.A. 2A:15-59.1(b)(1)). "When the plaintiff's
conduct bespeaks an honest attempt to press a perceived, though ill-founded and
perhaps misguided, claim, he or she should not be found to have acted in bad
faith." Belfer v. Merling, 322 N.J. Super. 124, 144-45 (App. Div. 1999) (citing
McKeown-Brand, 132 N.J. at 563).
In light of the competent evidence in the record and the prevailing
principles of law, we conclude that the trial court did not abuse its discretion by
denying defendants' claim for attorney's fees and costs. The trial court found
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that there may have been some factual basis to assert that the deviations from
the ordinance required a variance, but that plaintiffs chose the wrong forum to
pursue those claims. The trial court further found that a viable claim might arise
at a later date, should any of the parade of horribles feared by plaintiffs actually
materialize. Plaintiffs were in the correct forum for the mandamus claim. See
Garrou, 11 N.J. at 302. However, the mandamus claim is not cognizable against
a private individual. See id. at 303. In addition, plaintiffs attempted in apparent
good faith to support their legal theories with an expert report of a licensed
professional. Under the circumstances, the trial did not err in its perception that
plaintiffs' conduct demonstrated "an honest attempt to press a perceived, though
ill-founded and perhaps misguided, claim" and therefore, could not be found to
have acted in bad faith. Belfer, 322 N.J. Super. at 144-45.
To the extent any arguments are not addressed herein, they are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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