TIMOTHY J. VORHIES, SR. VS. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF ROCKAWAY (L-2278-17 AND C-000018-17, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-1213-18T4

TIMOTHY J. VORHIES, SR.,

Plaintiff-Appellant,

v.

BOARD OF ADJUSTMENT OF
THE TOWNSHIP OF ROCKAWAY,
RICHARD BATES and BATES
FLOORS, LLC,

Defendants-Respondents.
_______________________________

TIMOTHY J. VORHIES, SR.,

Plaintiff-Appellant,

v.

TOWNSHIP OF ROCKAWAY,
RICHARD BATES, MICHAEL
ANTONELLI, and BATES FLOORS,
LLC,

Defendants-Respondents.
_______________________________

Submitted June 4, 2020 – Decided September 8, 2020
 Before Judges Suter and DeAlmeida.

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket Nos. L-2278-17 and
C-000018-17.

Garrity Graham Murphy Garofalo & Flinn, attorneys
for appellant (Thomas D. Flinn, on the briefs).

Dimin Fierro, LLC, attorneys for respondent Board of
Adjustment of the Township of Rockaway (William N.
Dimin, on the brief).

Fein Such Kahn & Shepard PC, attorneys for
respondents Richard Bates, Michael Antonelli, and
Bates Floors, LLC (John M. Sydlar, on the brief).

PER CURIAM

Plaintiff Timothy J. Vorhies, Sr. appeals from: (1) an October 22, 2018

order of the Law Division dismissing his complaint in lieu of prerogative writ

challenging the issuance of a permit by defendant Board of Adjustment of

Rockaway Township (Board) and a related Chancery Division complaint with

which it was consolidated; and (2) an October 5, 2018 order lifting restraints on

the construction of a garage authorized by the permit. We affirm.

I.

The following facts are derived from the record. Plaintiff resides in

defendant Rockaway Township (township) next to a parcel (the property) owned

A-1213-18T4
2
by defendants Richard Bates and Michael Antonelli, who are principals of

defendant Bates Floors, LLC (collectively "defendants").

The property is in the township's R-88 zone, which permits single-family

dwellings, golf courses, plant material nurseries, parks, greenhouses,

agricultural farming, and truck gardening, as well as accessory uses and

structures that "are customarily incidental and subordinate to a permitted

principal use." The zone does not permit commercial uses. On May 26, 2016,

defendants filed a permit application to the Board to construct a garage on the

property.

On June 13, 2016, plaintiff contacted township officials to inquire about

large amounts of soil disturbance and the installation of a commercial dumpster

on the property. He filed similar complaints several times over the following

months. The township's responses were not satisfactory to plaintiff. On

November 3, 2016, the Board issued defendant a permit to construct the garage.

On December 22, 2016, plaintiff's counsel wrote to the township mayor

following up on the complaints and construction activity on the property. On

January 9, 2017, the township attorney wrote to plaintiff's counsel informing her

that the Board issued a permit to construct the garage on November 3, 2016.

The township provided a copy of the permit to plaintiff's counsel on January 13,

A-1213-18T4
3
2017. Plaintiff's counsel thereafter sent a series of letters to the township

contending the permit was not sufficient for construction of the garage because

use and bulk variances were required for the project.

On March 6, 2017, plaintiff filed a verified complaint and order to show

cause in the Chancery Division seeking to restrain and enjoin defendants from

further construction, arguing a site plan, bulk variance, and use variance were

required for construction of the garage. The complaint also alleged the township

and its employees engaged in a civil conspiracy with the other defendants to

subvert the township's zoning ordinances and regulations, depriving plaintiff of

the use of his property and causing him emotional and physical harm. Finally,

plaintiff alleged the township and its employees acted under color of law to

infringe on his substantive and procedural due process rights.

On March 31, 2017, the trial court, with the consent of the parties, issued

an order dismissing the complaint without prejudice to permit plaintiff to

exhaust his administrative remedies before the Board. The court ordered that

"[w]ithin 20 days, plaintiff shall apply for review by [the Board], which shall

'exercise its statutory authority to review and pass upon the challenged decisions

of local land use officers.'" The court also enjoined defendants from

construction of the garage until the Board resolved plaintiff's claims.

A-1213-18T4
4
 On April 20, 2017, plaintiff filed an appeal of the permit with the Board.

Defendants argued the appeal was untimely because it was filed after the twenty-

day appeal period established in N.J.S.A. 40:55D-72(a). On September 5, 2017,

the Board dismissed the appeal, concluding it was filed more than twenty days

after plaintiff became aware of the issuance of the permit.

Plaintiff thereafter reopened the Chancery Division matter. In addition,

on October 20, 2017, plaintiff filed a complaint in lieu of prerogative writ in the

Law Division against defendants and the Board. The complaint alleged the

Board's dismissal of his appeal was arbitrary, capricious and unreasonable.

Pa48. The two complaints were consolidated, and defendants and the Board

moved for their dismissal.

On October 5, 2017, Judge Robert J. Brennan issued a comprehensive

and well-reasoned oral opinion granting the motions to dismiss. Judge Brennan

rejected the argument that his March 31, 2017 order compelled the Board to

consider plaintiff's challenge to the permit, even if statutorily time barred. The

court applied well-established precedent that the twenty-day time period in

N.J.S.A. 40:55D-72(a) begins to run when the "interested person knew or should

have known of the permit[']s issuance." Judge Brennan found sufficient support

in the record for the Board's determination that plaintiff knew of the issuance of

A-1213-18T4
5
the permit more than twenty days prior to the filing of his appeal. The judge

found that plaintiff was made aware of the permit at the latest on January 13,

2017, when a copy of it was produced by the township. The court held that

twenty days from January 13, 2017, was February 2, 2017, and that plaintiff

failed to file an appeal with the Board by that date.

Judge Brennan also rejected plaintiff's arguments that the Board should

be estopped from applying the statutory filing deadline and that defendants

waived the filing deadline by not appealing the trial court's March 31, 2017

order. Finally, the court declined to extend the statutory filing deadline, finding

township officials did not frustrate plaintiff's ability to challenge the permit.

The parties did not raise, and the court's opinion did not address, the conspiracy

and color of law claims in the Chancery Division complaint.

On October 5, 2018, the trial court entered an order dissolving restraints

on defendants' construction of the garage and dismissing the Chancery Division

complaint as moot. On October 22, 2018, the trial court entered an order

dismissing both the Law Division complaint and the Chancery Division

complaint.

This appeal follows. Plaintiff makes the following arguments.

A-1213-18T4
6
 POINT I

THE COURT BELOW APPLIED THE WRONG
STANDARD OF REVIEW.

POINT II

THE DEFENDANT ZONING BOARD ERRED IN ITS
CONCLUSION THAT PLAINTIFF'S APPEAL WAS
BARRED BY N.J.S.A. 40:55D-72(a).

POINT III

THE REQUIREMENT OF R. 4:69-5 OUGHT TO
HAVE BEEN WAIVED.

POINT IV

GARROU AND MULLEN REQUIRE REVERSAL.

POINT V

THE ORDERS APPEALED DISMISSED COUNTS
FOUR AND FIVE OF THE VERIFIED COMPLAINT
WITHOUT THE BENEFIT OF DISCOVERY,
HEARING, OR ANY CONSIDERATION OF THE
VIABILITY OF THOSE CLAIMS.

II.

The scope of the Board's authority and jurisdiction are questions of law

subject to de novo review. TWC Realty P'ship v. Zoning Bd. of Adjustment,

315 N.J. Super. 205, 211 (Law Div. 1998), aff'd, 21 N.J. Super. 216 (App. Div.

A-1213-18T4
7
1999). The Board's resolution of factual issues must stand if supported by

sufficient credible evidence. Rowatti v. Gonchar, 101 N.J. 46, 51 (1985).

N.J.S.A. 40:55D-70(a) provides that zoning boards of adjustment "shall

have the power to . . . [h]ear and decide appeals where it is alleged by the

appellant that there is error in any order, requirement, decision or refusal made

by an administrative officer based on or made in the enforcement of the zoning

ordinance . . . ."

Appeals to the board of adjustment may be taken by any
interested party affected by any decision of an
administrative officer of the municipality based on or
made in the enforcement of the zoning ordinance or
official map. Such appeal shall be taken within 20 days
by filing a notice of appeal with the officer from whom
the appeal is taken specifying the grounds of such
appeal. . . .

[N.J.S.A. 40:55D-72(a).]

"An interested party clearly includes a neighbor who is affected by the grant of

a building permit that will result in a structure [on adjacent property] that

violates the zoning ordinance." Harz v. Borough of Spring Lake, 234 N.J. 317,

322 (2018) (alteration in original) (internal quotations omitted).

The twenty-day period to appeal to the Board "was intended to provide a

degree of assurance that the recipient could rely on the decision of the

administrative officer" and "was clearly designed to insulate the recipient of a

A-1213-18T4
8
building permit or other favorable disposition from the threat of unrestrained

future challenge." Sitkowski v. Zoning Bd. of Adjustment, 238 N.J. Super. 255,

260 (App. Div. 1990). "However, because no provision requires the

administrative officer to notify a nearby property owner about the issuance of a

zoning permit, the property owner may not know of the official action until well

beyond the twenty-day limitations period." Harz, 234 N.J. at 322. "In that

circumstance, courts have taken the sensible position that 'the time for appeal

begins to run from the date an interested person knew or should have known of

the permit's issuance.'" Ibid. (quoting Trenkemp v. Twp. of Burlington, 170 N.J.

Super. 251, 268 (Law Div. 1979)). The Board's "function is to make the factual

determination as to when an appellant knew or should have known of a building

permit's issuance . . . ." Trenkemp, 170 N.J. Super. at 270.

Having carefully reviewed the record in light of these legal principles, we

agree with Judge Brennan's conclusion that there is sufficient support in the

record for the Board's determination that plaintiff's appeal was untimely. At the

latest, plaintiff was aware of the permit as of January 13, 2017, when his counsel

received a copy of the permit. Twenty days from January 13, 2017, was

February 2, 2017. Plaintiff filed his appeal with the Board on April 20, 2017,

more than two months later. Even if plaintiff is given the benefit of considering

A-1213-18T4
9
the March 6, 2017 filing date of his Chancery Division complaint as the date he

appealed the permit, his appeal was untimely.

We also reject plaintiff's argument that the trial court erred when it

dismissed the prerogative writ complaint to permit plaintiff to exhaust his

remedies before the Board. According to Rule 4:69-5, an action in lieu of

prerogative writ "shall not be maintainable as long as there is available a right

of review before an administrative agency which has not been exhausted." This

requirement exists unless "it is manifest that the interest of justice requires

otherwise . . . ." Ibid. Where administrative remedies have not been exhausted,

it is appropriate for a trial court to remand a prerogative writ complaint to a

municipal body to "exercise its statutory authority to review and pass upon the

challenged decisions of local land use officers." See 21st Century Amusements,

Inc. v. D'Alessandro, 257 N.J. Super. 320, 323 (App. Div. 1992) (citing N.J.S.A.

40:5D-72).1

We are not persuaded by plaintiff's argument that the holdings in Garrou

v. Teaneck Tryon Co., 11 N.J. 294 (1953), and Mullen v. Ippolito Corp., 428

1
We note that the March 31, 2017 order dismissing the Chancery Division
complaint without prejudice was entered with plaintiff's consent. An order
entered with the consent of the parties is ordinarily not appealable for the
purpose of challenging its substantive provisions. See Winberry v. Salisbury, 5
N.J. 240, 255 (1950).
A-1213-18T4
10
N.J. Super. 85 (App. Div. 2012), require reversal of the trial court orders. In

Garrou, the Court relaxed the prerogative writ exhaustion of administrative

remedies requirement where a party demonstrates: (1) there has been a clear

violation of a zoning ordinance; (2) a failure of appropriate action despite the

matter having been duly and sufficiently brought to the attention of local

officials charged with enforcing the zoning ordinance; and (3) the unavailability

of other adequate and realistic forms of relief. 11 N.J. at 302-04. Those factors

are not present here. While plaintiff may have brought his complaints to the

attention of the appropriate municipal officials, he had not demonstrated their

failure to take appropriate action or that he did not have available to him an

adequate form of relief. Township officials responded to plaintiff's inquiries

and produced a copy of the permit issued to defendants, which plaintiff did not

appeal in a timely fashion.

In Mullen, we held that the twenty-day period in N.J.S.A. 40:55D-72(a)

did not commence because the municipal official failed to take enforcement

action, displaying "a pattern of indifference" in the face repeated complaints that

a property owner was defying the municipal zoning ordinance. 428 N.J. Super.

at 103. Here, municipal officials reviewed and approved the construction of the

garage that was the subject to plaintiff's complaints.

A-1213-18T4
11
 To the extent we have not specifically addressed any of plaintiff's

remaining arguments, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).2

Affirmed.

2
Plaintiff argues the trial court erred when it dismissed the counts of his
Chancery Division complaint alleging civil conspiracy and deprivation of rights
under the color of law. He did not, however, challenge the dismissal of those
counts in the trial court. We, therefore, decline to address those arguments.
Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 2:6-2 (2020); see
also Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012); Nieder v.
Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
A-1213-18T4
12