NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any c ourt." 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-1868-17T4
CONSTANTINE MATTHEWS
and PATRICIA MATTHEWS,
Plaintiffs-Appellants,
v.
CHARLES EHRMANN, LINDA
EHRMANN, and GREENLAND
LANDSCAPE CO., INC.,
Defendants-Respondents.
_____________________________
Argued December 18, 2018 – Decided February 20, 2019
Before Judges Gilson and Natali.
On appeal from Superior Court of New Jersey,
Chancery Division, Passaic County, Docket No. C-
000064-17.
John J. Segreto argued the cause for appellants (Segreto
& Segreto, LLP, attorneys; John J. Segreto, of counsel
and on the briefs).
Mark J. Semeraro argued the cause for respondents
Charles Ehrmann and Linda Ehrmann (Kaufman,
Semeraro & Leibman, LLP, attorneys; Gregory K.
Asadurian, on the brief).
William I. Strasser argued the cause for respondent
Greenland Landscape Co., Inc. (Strasser & Associates,
PC, attorneys; William I. Strasser, on the brief).
PER CURIAM
This appeal arises out of a land use dispute. Plaintiffs, who own a
residential home, sued defendants seeking to enjoin them from performing
certain commercial activities on an adjacent piece of property that plaintiffs
contend were not permitted uses under the township's zoning ordinances.
Plaintiffs also sought compensatory damages, alleging that defendants' activities
were disturbing plaintiffs' "peace and tranquility" and adversely affecting their
"health and well-being." Defendants moved to dismiss plaintiffs' complaint for
failure to state a claim, arguing that their uses were pre-existing, nonconforming
uses that had been authorized by two previously-issued zoning permits.
In orders entered on November 16, 2017, the Chancery court granted
defendants' motions and dismissed plaintiffs' complaint with prejudice. The
court also denied a request for attorney's fees made by defendants Charles and
Linda Ehrmann (the Ehrmanns). Plaintiffs appeal from the orders dismissing
their complaint and the Ehrmanns cross-appeal from the portion of the order
denying their request for attorney's fees.
A-1868-17T4
2
A review of the record and law establishes that defendants were not
entitled to dismissal of plaintiffs' complaint. Moreover, while this appeal was
pending, defendant Greenland Landscaping Company, Inc. (Greenland) ceased
operating on the property. Accordingly, on remand, the Chancery court is
directed to dismiss as moot plaintiffs' claim for injunctive relief against
Greenland. We reverse and remand the remaining claims for further
proceedings. We also dismiss, as moot, the request by the Ehrmanns for
attorney's fees.
I.
We take the facts from plaintiffs' complaint and from certifications
submitted by plaintiffs in opposition to the motion to dismiss. Because the
Chancery court considered certifications and documents beyond the complaint,
the motion to dismiss effectively became a motion for summary judgment. R.
4:6-2. Accordingly, we view the facts in the light most favorable to plaintiffs,
the non-moving party. R. 4:46-2(c); Lederman v. Prudential Life Ins. Co. of
Am., Inc., 385 N.J. Super. 324, 337 (App Div. 2006) (citing Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).
Plaintiffs Constantine and Patricia Matthews own property in Wayne
Township (the Township). The Ehrmanns own property (the Property) that is
A-1868-17T4
3
adjacent to plaintiffs' property. Both properties are in an area zoned for
residential use. Defendant Greenland leased the Property from the Ehrmanns
and operated a nursery and landscaping business, which included a landscaping
architectural office and a storage yard where landscaping and construction
trucks and equipment were stored and repaired.
Plaintiffs purchased their property in 1992. From 1992 until 2000, the
adjacent Property was used as a residence and it had a barn and open fields. In
2000, the Ehrmanns purchased the Property and they operated a nursery on the
Property. The parties dispute the extent of the nursery and landscaping activities
conducted on the Property between 2000 and 2015. Nevertheless, the parties
agree that during that time a nursery and landscaping business was continuously
operated on the Property. It is also undisputed that the Property had a dwelling
that was used as a residence.
In October 2004, the zoning ordinances of the Township were amended.
Wayne Township, N.J., Township Code § 134-29 (2014). The amended
ordinance allowed agricultural uses in all zones, but with certain limitations.
Among other things, the limitations prohibited four different activities:
(5) Storage of any landscaping or earthmoving
equipment and/or machines, including, but not limited
to, lawn cutting equipment, trucks, trailers, tractors,
leaf catchers, backhoes, etc., used for any purpose other
A-1868-17T4
4
than those used exclusively to support the agricultural
and horticultural operations of the subject property.
(6) The use of the premises as a contractor's and/or
landscaper's yard.
(7) Storage of any item, such as and including, but not
limited to, mulch, fertilizer, topsoil or animal feed of
any nature, other than that which is solely used for and
needed to support the agricultural and horticultural
activities performed on the subject property.
(8) Any retail or wholesale sales of anything other than
plants or animals that are or have been raised and/or
grown on the premises.
[Wayne Township, N.J., Township Code § 134-29.1(5)
to (8) (2014).]
By 2011, the Ehrmanns had leased the Property to Don Brady who
operated a wholesale and retail nursery on the Property. In February 2011,
Brady applied for a "[n]on-residential/[c]ommercial" zoning permit. The
application described the current activity and buildings on the Property to be
"wholesale & retail nursery, contractors yard & residential dwelling." The
application also stated that those uses were "pre-existing, non-conforming
use[s]." Both Brady and Charles Ehrmann signed the application. The
application was stamped "APPROVED" and was signed by the Township's
zoning officer on February 18, 2011. Six days later, on February 24, 2011, the
Township's zoning officer issued a commercial zoning permit for the Property.
A-1868-17T4
5
That permit allowed "wholesale & retail nursery conditioned upon compliance
with Section 134-29 [of the Township Code]."
Plaintiffs allege that in late 2011, the activities on the Property became
less like a nursery and more like a "contractor's and landscaping storage yard."
Then, in 2015, Greenland started to operate on the Property. According to
plaintiffs, Greenland graded and put down gravel "everywhere" on the Property.
Plaintiffs also assert that Greenland operated a landscaping and construction
yard on the Property and various trucks, heavy equipment, and machinery were
stored and operated on the Property. Greenland also stored topsoil, stone s,
mulch, gasoline, and diesel fuel on the Property.
Plaintiffs and other neighbors complained to the Township officials about
the activities on the Property. In June 2015, the Township issued summons to
Charles Ehrmann for "failure to obtain and comply with requirements of home
occupation" in violation of Section 134-34.1 of the Township Code.
Between August 2015 and July 2016, Greenland filed three applications
for commercial zoning permits. While those applications described the uses of
the Property in different terms, each of those applications sought permission for
Greenland to use the Property as a wholesale and retail nursery, to operate a
A-1868-17T4
6
landscaping architectural office, and to store equipment. All three of those
applications were denied by the Township's zoning officer.
On September 16, 2016, Charles Ehrmann pled guilty to violating Section
134-34.1 of the Township Code. In connection with that plea, he was required
to either apply for a zoning permit or to bring the Property into compliance with
the zoning ordinance within thirty days.
On the same day that Charles Ehrmann pled guilty, Greenland applied for
another "non-residential/commercial" zoning permit. Greenland described the
activities to be conducted on the Property and the buildings as a "legal, pre-
existing, nonconforming use wholesale & retail nursery, contractors yard &
residential dwelling." The application also sought "acknowledgment that an
existing building, lot or use meets ordinance requirements or is a pre -existing,
nonconforming use." After receiving a requested site plan for the Property, on
October 25, 2016, the Township zoning officer approved the application with
conditions. Specifically, the October 25, 2016 zoning permit stated:
Legal, pre-existing, non conforming use/wholesale &
retail nursery, contractors yard & residential
dwelling[.] Any expansion of property will require
Planning Board approval. Aerial photo date 10/11/14
shows current condition on site. Prior approval date
2/15/2011 shows that this property is pre-existing, non-
conforming use. The current activities conducted on
A-1868-17T4
7
premises is wholesale and retail for nursery, contractors
yard and residential dwelling[.]
On May 3, 2017, plaintiffs filed an action in the Chancery court seeking
to permanently enjoin Greenland and the Ehrmanns from operating a
landscaping and construction storage yard and landscape architectural office on
the Property. Plaintiffs also sought compensatory damages alleging that the use
of their property had been disturbed by the activities conducted by defendants
on the Property.
Citing Rule 1:4-8, counsel for the Ehrmanns served a frivolous litigation
letter on plaintiffs. When the lawsuit was not voluntarily withdrawn, the
Ehrmanns filed a motion to dismiss in lieu of an answer in accordance with Rule
4:6-2(e). The Ehrmanns argued that plaintiffs had no claim for relief because
defendants had valid zoning permits. In addition, the Ehrmanns argued that
plaintiffs were effectively seeking to challenge the 2016 zoning permit and such
a challenge was untimely.
In August 2017, Greenland also filed a motion to dismiss for failure to
state a claim, arguing that its uses were allowed by the 2016 zoning permit.
Greenland also argued that plaintiffs lacked standing, their action was t ime-
barred, and the Township was an indispensable party to the litigation. Plaintiffs
A-1868-17T4
8
opposed both motions to dismiss and submitted certifications and other
documents in opposition to the motions.
The Chancery court heard oral arguments in October 2017, and permitted
the parties to file supplemental certifications. On November 16, 2017, the court
granted the motions to dismiss and explained the reasons for that ruling on the
record. That same day, the court issued two orders dismissing, with prejudice,
plaintiffs' complaint against the Ehrmanns and Greenland.
In its oral decision, the court reasoned that plaintiffs had consciously
decided not to bring an action in lieu of prerogative writs, but nonetheless were
effectively collaterally attacking the zoning permits issued in 2011 and 2016.
The court rejected plaintiffs' arguments that the 2011 permit was limited and the
2016 permit was void because that permit had not been issued by the Township's
zoning board of adjustment. The court then held that the 2016 zoning permit
resolved the issue of whether defendants' uses on the Property were lawful
because it allowed defendants to conduct the activities on the Property.
Plaintiffs now appeal the orders dismissing their complaint. The
Ehrmanns cross-appeal from the order denying their request for attorney's fees.
In March 2018, while this appeal was pending, Greenland ceased
operating on and vacated the Property. Greenland then moved to dismiss the
A-1868-17T4
9
appeal as moot. Plaintiffs did not dispute that Greenland had vacated the
Property, but opposed Greenland's motion, contending that they still had a claim
for compensatory damages against Greenland. We denied the motion to dismiss
the appeal against Greenland as moot, but allowed Greenland to supplement the
record with proof that it had, in fact, vacated the Property.
II.
On appeal, plaintiffs make six arguments. They contend (1) that the 2016
zoning permit was invalid and is void; (2) the Chancery court erred in dismissing
their action as a collateral attack on the zoning permits; (3) defendants' uses on
the Property were not permitted uses and were not pre-existing, nonconforming
uses; (4) defendants are not conducting a landscaping business and retail nursery
on the Property; (5) the Township is not an indispensable party; and (6) the
Chancery court erred in granting the motion to dismiss and not properly
analyzing the motions as motions for summary judgment.
We begin by identifying our standard of review. Defendants filed motions
to dismiss. Such motions are governed by Rule 4:6-2 and focus on the pleadings.
Accordingly, under Rule 4:6-2(e), a complaint can be dismissed if the facts
alleged in the complaint do not state a viable claim as a matter of law. The
standard for determining the adequacy of plaintiff's pleadings is "whether a
A-1868-17T4
10
cause of action is 'suggested' by the facts." Green v. Morgan Props., 215 N.J.
431, 451-52 (2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp.,
116 N.J. 739, 746 (1989)).
Here, however, all parties submitted material outside the pleadings and
the Chancery court considered and relied on those documents and certifications.
Thus, the motions effectively became motions for summary judgment. See R.
4:6-2; R. 4:46. The standard for summary judgment is whether the moving
parties have established that there are no genuine disputes as to any material
facts, and, if so, whether the facts, viewed in the light most favorable to the non-
moving party, entitles the moving parties to judgment as a matter of law. R.
4:46-2(c); Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014);
Brill, 142 N.J. at 540.
When reviewing orders concerning motions to dismiss for failure to state
a claim or motions for summary judgment, we use the same standard as the trial
court and review the decisions de novo. Davis, 219 N.J. at 405; Smerling v.
Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006). Moreover, in
considering questions of law, our review is plenary. Ben Elazar v. Macrietta
Cleaners, Inc., 230 N.J. 123, 135-36 (2017).
A-1868-17T4
11
A.
The primary issues raised on this appeal concern municipal land use.
Plaintiffs contend defendants are violating the local municipal zoning ordinance
and seek to enjoin those alleged illegal activities and recover damages. In
response, defendants assert that their activities are prior, nonconforming uses
authorized by zoning permits issued in 2011 and 2016. To put those issues in
context, we will briefly review the law governing municipal land use.
The authority to regulate land use in New Jersey rests with the Legislature,
and the Legislature, in turn, can delegate that authority to municipalities. N.J.
Const. art. IV, § 6, ¶ 2. The Legislature has delegated to municipalities the
power to regulate local land use via the Municipal Land Use Law (MLUL),
N.J.S.A. 40:55D-1 to -163. Accordingly, the MLUL is the governing law.
Under the MLUL, the authority to regulate land use is exercised by three
separate municipal bodies: the governing body, the planning board, and the
zoning board of adjustment. Cox, Koenig, Drill & John-Basta, N.J. Zoning &
Land Use Administration, § 1-2 (2018). Generally, the governing body
establishes ordinances, the planning board creates an overall plan for the
municipality, and the zoning board of adjustment reviews individual permit
applications and grants or denies variances from the ordinances. See Vidal v.
A-1868-17T4
12
Lisanti Foods, Inc., 292 N.J. Super. 555, 562-64 (App. Div. 1996) (describing
the separate duties of each land use body).
The authority to enforce land use ordinances generally resides with the
municipality. N.J.S.A. 40:55D-18. Private, "interested parties," such as a
neighboring property owner, can also enforce zoning ordinances. Ibid. Thus,
the MLUL provides in relevant part:
In case any building or structure is erected, constructed,
altered, repaired, converted, or maintained, or any
building, structure or land is used in violation of this
act or of any ordinance or other regulation made under
authority conferred hereby, the proper local authorities
of the municipality or an interested party, in addition to
other remedies, may institute any appropriate action or
proceedings to prevent such unlawful erection,
construction, reconstruction, alteration, repair,
conversion, maintenance or use, to restrain, correct or
abate such violation, to prevent the occupancy of said
building, structure or land, or to prevent any illegal act,
conduct, business or use in or about such premises.
[N.J.S.A. 40:55D-18.]
The MLUL recognizes the right of a property owner or user to maintain a
pre-existing use, which has been prohibited by the subsequent enactment of a
zoning ordinance. N.J.S.A. 40:55D-68. In that regard, the MLUL states:
Any nonconforming use or structure existing at the time
of the passage of an ordinance may be continued upon
the lot or in the structure so occupied and any such
A-1868-17T4
13
structure may be restored or repaired in the event of
partial destruction thereof.
[N.J.S.A. 40:55D-68.]
The MLUL also authorizes any "person interested in any land upon which
a nonconforming use or structure exists" to apply for a certification that the
nonconforming uses or structures are permitted pre-existing uses or structures.
Ibid. Applications for such a certification can be made at any time to the zoning
board of adjustment. Ibid. If an application is made within one year of the
adoption of the ordinance that rendered the use or structure nonconforming, the
application can be made to "the administrative officer." Ibid. Specifically, the
MLUL provides:
The prospective purchaser, prospective mortgagee, or
any other person interested in any land upon which a
nonconforming use or structure exists may apply in
writing for the issuance of a certificate certifying that
the use or structure existed before the adoption of the
ordinance which rendered the use or structure
nonconforming. The applicant shall have the burden of
proof. Application pursuant hereto may be made to the
administrative officer within one year of the adoption
of the ordinance which rendered the use or structure
nonconforming or at any time to the board of
adjustment.
[N.J.S.A. 40:55D-68.]
A-1868-17T4
14
The exclusive method of protecting a nonconforming use by permit more
than one year from the enactment of a zoning ordinance is a certificate of
nonconforming use from the board of adjustment. Twp. of Stafford v. Stafford
Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 69 (1998); See also N.J.S.A.
40:55D-20 ("[a]ny power expressly authorized by this act to be exercised
by . . . [a] board of adjustment shall not be exercised by any other body, except
as otherwise provided in this act.") Thus, "municipal action in the land use
control field taken in direct violation of law or without legal authority is void ab
initio and has no legal efficacy." Irvin v. Twp. of Neptune, 305 N.J. Super. 652,
658 (App. Div. 1997) (quoting Hilton Acres v. Klein, 35 N.J. 570, 581 (1961)).
Consequently, if a municipality issues a permit "contrary to [an] ordinance," it
is "utterly void and subject to collateral attack." Garrou v. Teaneck Tryon Co.,
11 N.J. 294, 306 (1953).
The burden of proving the existence of a nonconforming use lies with the
party asserting the use. N.J.S.A. 40:55D-68; Berkeley Square Ass'n, Inc. v.
Zoning Bd. of Adjustment of Trenton, 410 N.J. Super. 255, 269 (App. Div.
2009). Applications for a nonconforming use made to the zoning board of
adjustment are entitled to a hearing that generally will include notice, the
examination and cross-examination of witnesses, and determinations grounded
A-1868-17T4
15
on competent and credible proofs. Centennial Land & Dev. Co. v. Medford
Twp., 165 N.J. Super. 220, 225 (Law. Div. 1979) (citing Tomko v. Vissers, 21
N.J. 226, 238-41 (1956)).
The MLUL does not require an owner to apply for a certificate of
nonconforming use. If, however, a nonconforming use is challenged, the owner
will be required to defend that use as a pre-existing, nonconforming use.
Normally, the first step in establishing that a use is pre-existing and
nonconforming is to apply for a certificate in accordance with N.J.S.A. 40:55D-
68. See Twp. of Stafford, 154 N.J. at 69 ("Before asking a court for relief, any
person . . . who applies more than one year after the adoption of the pertinent
ordinance must first file an . . . application with the zoning board."); see also
Borough of Bay Head v. MacFarlan, 209 N.J. Super. 134, 137 n.1 (App. Div.
1986) (noting court is not "the most appropriate forum for determining zoning
questions, such as the existence of prior nonconforming uses").
B.
With this overview of municipal land use law, we turn to the arguments
made by the parties. Plaintiffs sought to enjoin activities by the defendants on
the Property that did not conform to the applicable Township zoning ordinance.
Specifically, plaintiffs contended that the ordinance did not permit a storage
A-1868-17T4
16
yard where defendants were storing trucks, heavy equipment, and machinery.
In response, defendants relied on zoning permits, which had been issued in 2011
and 2016. The Chancery court reasoned that the zoning permits were valid and
plaintiffs were effectively seeking to collaterally attack those permits.
Plaintiffs were not challenging the action of any municipal body. Instead,
they were seeking to enjoin what they contended were uses that were not
permitted by the zoning ordinance. It was defendants who relied on the zoning
permits issued in 2011 and 2016 as an affirmative defense. Those permits are
not valid and are void ab initio. In 2004, the Township amended its zoning
ordinance and prohibited storage yards, where trucks or equipment were stored
when those trucks and equipment were not used on site. Defendants contend
that the storage activity is a nonconforming, pre-existing use. Defendants did
not, however, obtain a certification from the Township's zoning board of
adjustment. Both the 2011 and 2016 permits were issued by the Township
zoning officer. The zoning officer did not have the authority to issue those
permits because those permits were issued more than one year following the
adoption of the 2004 zoning amendment.
Moreover, the 2011 zoning permit did not authorize a storage yard. While
the application requested the approval of such a use, the permit itself only
A-1868-17T4
17
authorized a "wholesale & retail nursery conditioned upon compliance with
Section 134-29 [of the Township Code]." It is the permit, not the application,
which governs the permissible uses. See Motley v. Seaside Park Zoning Bd. of
Adjustment, 430 N.J. Super. 132, 151 (App. Div. 2013) (explaining a permit
holder has "no legal right to exceed what [a] zoning officer's permit
authorize[s]").
Defendants also argue that plaintiffs' complaint should be dismissed
because it was filed more than forty-five days after the 2011 and 2016 permits
were issued. In making that argument, defendants rely on Rule 4:69-6(a). That
rule, however, applies to actions in lieu of prerogative writs. R. 4:69; N.J. Const.
art. VI, § 5, ¶ 4; see also In re LiVolsi, 85 N.J. 576, 593 (1981). As already
noted, plaintiffs here did not file an action in lieu of prerogative writs; rather,
they filed an action under section 18 of the MLUL. N.J.S.A. 40:55D-18. Thus,
the time limitation in Rule 4:69-6(a) is not applicable.
III.
Accordingly, the Chancery court erred in dismissing plaintiffs' complaint
as an invalid collateral attack on the zoning permits. We, therefore, reverse the
orders dismissing plaintiffs' complaint and remand with instructions that the
complaint be reinstated.
A-1868-17T4
18
The existing record does not allow for an evaluation of whether
defendants' activities on the Property were nonconforming, pre-existing uses.
That issue will need to be developed on remand, including, where appropriate,
through discovery. Moreover, the current record does not allow us to evaluate
defendants' contentions that plaintiffs are estopped or barred by laches from
asserting their claims. Those are also issues that will need to be developed on
remand. We also do not address the issue of whether the Township is an
indispensable party. That issue was not addressed by the Chancery court and
we decline to address it for the first time on this appeal.
We can, however, narrow one issue. Defendant Greenland has submitted
proofs that it has ceased all its operations and activities on the Property and has
vacated the Property. Plaintiffs do not dispute that fact. Accordingly, plaintiffs'
claim for an injunction against Greenland is moot. See Redd v. Bowman, 223
N.J. 87, 104 (2015). On remand, the Chancery court is directed to dismiss that
claim as moot. The issue of whether plaintiffs can prove compensatory damages
for the period of time when Greenland was operating on the Property is
remanded for further proceedings.
Finally, we also dismiss as moot the cross-appeal by the Ehrmanns for
attorney's fees. Given our reversal of the dismissal of plaintiffs' complaint, the
A-1868-17T4
19
Ehrmanns are not currently prevailing parties and their claims for attorney's fees
will not mature without further proceedings.
Reversed in part and dismissed as moot in part. The matter is remanded
and we do not retain jurisdiction.
A-1868-17T4
20
CONSTANTINE MATTHEWS VS. CHARLES EHRMANN (C-000064-17, PASSAIC COUNTY AND STATEWIDE)
Combined Opinion