ZUDHI KARAGJOZI VS. DAMON RISUCCI (L-2127-15, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-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

A-3735-17T1

24

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.

A-3735-17T1

25