MAURO SQUICCIARINI VS. BOROUGH OF CLOSTER (L-6202-18, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0822-19

MAURO SQUICCIARINI,

Plaintiff-Appellant,

v.

BOROUGH OF CLOSTER,

COUNTY OF BERGEN and

TEMPLE EMANU-EL OF

CLOSTER, INC.,

Defendants-Respondents.

__________________________

Argued April 21, 2021 – Decided July 2, 2021

Before Judges Sumners and Geiger.

On appeal from the Superior Court of New Jersey, Law

Division, Bergen County, Docket No. L-6202-18.

John J. Segreto argued the cause for appellant (Segreto

& Segreto, LLP, attorneys; John J. Segreto, of counsel

and on the briefs).

Mary C. McDonnell and Edward T. Rogan argued the

cause for respondent Borough of Closter (Pfund

McDonnell, PC, and Rogan & Associates, LLC,

attorneys; Mary C. McDonnell and Edward T. Rogan,

on the brief).

Howard D. Geneslaw argued the cause for respondent

Temple Emanu-El of Closter (Gibbons, PC, attorneys;

Howard D. Geneslaw, of counsel and on the brief;

Kevin W. Weber, on the brief).

William G. Brown IV, Assistant Bergen County

Counsel, argued the cause for respondent County of

Bergen (Julien X. Neals, County Counsel, attorney;

William G. Brown, IV, of counsel and on the brief).

PER CURIAM

The Borough of Closter's (Borough) Zoning Officer and Zoning Board of

Adjustment (Board) denied plaintiff Mauro Squicciarini's request to construct a

residential dwelling on his two landlocked lots (hereinafter "property") that were

created pursuant to a 1928 Closter Park Estates subdivision plan, which allowed

improvement on lots in accordance with local regulations. Squicciarini did not

appeal the decisions but later filed an action in lieu of prerogative writs against

defendants County of Bergen (County); the Temple of Emanu-El, Inc. (Temple),

the adjacent property owner; and the Borough. Squicciarini appeals the trial

judge's order granting defendants' motions for summary judgment dismissing

the action and denying his cross-motion for summary judgment. We affirm.

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I

Squicciarini obtained clear title to the property (Block 1810, Lots 6 and

7) in the Borough by court order on March 14, 2014.1 The property was created

pursuant to a 1928 Closter Park Estates subdivision plan, which allowed

improvement on the lots in accordance with local regulations. Squicciarini

thereafter applied for a permit to construct a single-family residential dwelling

(hereinafter "dwelling") on the property relying upon the Borough's Zoning

Ordinance §200-71(D), enacted after the subdivision plan was created as the

municipality's first zoning ordinance. The ordinance contained a "grandfather

clause" (hereinafter "Section 1 of the ordinance") 2 providing in part:

(1) Any plot, either in District No. 1, Residence Area

A, or District No. 2, Residence Area B, may be

improved with a building in accordance with other

regulations of its district, provided that such plot or

parcel shall, prior to the date of the passage of this

chapter, fulfill either of the following requirements:

1

In 2005, Squicciarini filed suit to force the Temple to remove a fence it

installed in the 1990s, at the Borough's request, when the Temple built a

synagogue adjacent to his property. The suit was dismissed because Squicciarini

did not have clear title to the property.

2

We recognize Squicciarini and the trial judge did not intend to be insensitive,

but we decline to utilize this term because of its prejudiced origins. See

Webster's Third New Int'l Dictionary 987 (2002) (definition of "grandfather

clause"); Benno C. Schmidt, Jr., Principle and Prejudice: The Supreme Court

and Race in the Progressive Era, 82 Colum. L. Rev. 835 (1982).

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a. Said parcel shall have existed as a separate parcel and

shall have constituted a legal building plot prior to the

passage of this chapter, provided that the owner thereof

owns no adjacent land which may be included as part

of the plot in question; or

b. Said plot was included as part of a subdivision

heretofore approved by the Planning Board of the

Borough of Closter and constituted a legal building plot

in said subdivision prior to the passage of this chapter.

[Zoning Ordinance §200-71(D) (emphasis added).]

The Borough's zoning officer denied Squicciarini a permit to build

because his property "did not front on an improved street[;] it was landlocked[;]

and it did not meet the bulk requirements." Squicciarini then applied to the

Board for substantial bulk variance relief to construct the dwelling. The Temple

objected to the application as an adjacent property owner. 3 After conducting six

hearings over a nine-month period, the Board denied the application on October

18, 2017, suggesting that he can proceed with a (c)(2) planning variance.

Squicciarini did not appeal the Board's denial of his application. Instead,

ten months later, he filed a four-count action in lieu of prerogative writs against

the Borough, the County, and the Temple. The suit alleged that "[d]efendants'

3

Before Squicciarini acquired title to the property, the Temple obtained final

site approval from Closter's Planning Board and the County Planning Board to

build a synagogue on its property. Squicciarini did not appeal the approval.

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actions constitute continuing interference with and a trespass on the

[Squicciarini]'s easement rights in Hartford Street to access [the] [p]roperty.

The suit sought judgment "[d]eclaring that [Squicciarini] has the right, pursuant

to the Closter Park Estates subdivision of 1928, to construct a residential

dwelling on the [p]roperty" and "[c]ompelling . . . [d]efendants to remove all of

the encroachments, impediments and conditions that they have approved,

constructed or placed across or on Hartford Street to allow [him] unfettered

access to Hartford Street," which were obstructions in violation of his "easement

rights in Hartford Street." In addition, the suit sought judgment against

defendants for compensatory damages, attorney's fees, and costs, with a separate

count demanding judgment against the Borough "for . . . the value of [the]

[p]roperty."

Following a brief discovery period, defendants separately filed summary

judgment motions followed by Squicciarini's cross-motion for summary

judgment against defendants. Defendants' motions were granted and

Squicciarini's cross-motion was denied. In her written decision, the motion

judge determined:

. . . [T]he Borough and County's belief [is] based

in law. N.J.S.A. 59:2-5 provides public entities are

[ ]

" not liable for an injury caused by the issuance, denial,

suspension or revocation of, or by the failure or refusal

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to issue, deny, suspend or revoke any permit, license,

certificate, approval, order or similar authorization

where the public entity or public employee is

authorized by law to determine whether or not such

authorization should be issued, denied, suspended or

revoked.["]

Having failed to appeal the decision of the zoning

officer and the [Board], [Squicciarini] now comes

before the court seeking an order compelling the

Borough to issue a building permit for a "normal sized

house" based upon [Section 1 of the ordinance] and the

1928 paper subdivision [plan].

....

. . . However, contrary to Section 1 of the

ordinance, the [Board] found that the building proposed

by plaintiff did not meet the requirements of the other

regulations of its district. It may be that no building

can be approved for plaintiff's property on account of

zoning regulations and characteristics of the property

. . . . What is before this court is a demand that the

court direct the Borough to issue a building permit in

the face of [Squicciarini's] failure to timely appeal the

denial of his application to the zoning board after the

[z]oning officer refused to issue him a building permit.

....

[Squicciarini] has forfeited his right to a review

of the Board's action by failing to appeal. The court

will not, on a record that is remarkable for its sparsity,

grant the relief requested.

Squicciarini appealed.

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II

When reviewing a grant of summary judgment, we adhere to the same

standard as the motion judge. Davis v. Brickman Landscaping, Ltd., 219 N.J.

395, 405 (2014). A court should only grant summary judgment when the record

reveals "no genuine issue as to any material fact" and "the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-2(c). When both

parties move for summary judgment, we consider the facts in a light most

favorable to the party whose motion was denied. Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 523 (1995). We accord no deference to the trial judge's

legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citation

omitted).

Before us, Squicciarini first argues that his claims are not barred because

he did not timely challenge the Board's denial of his bulk variance. He does not

cite any law in support of his contention but rather contends the motion judge

did not cite any legal authority for her ruling. We disagree.

It is undisputed that Squicciarini did not appeal the zoning officer's

decision denying the issuance of a building permit to the Board within twenty

days as required by N.J.S.A. 40:55D-72(a). Allowing him to contest the zoning

officer's decision without a timely appeal to the Board by pursuing his challenge

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as an action in lieu of prerogative writs, would nullify the time constraint

provided by N.J.S.A. 40:55D-72(a). See Sitkowski v. Zoning Bd. of Adjustment

of Borough of Lavallette, 238 N.J. Super. 255, 260 (App. Div. 1990)

("[Defendant, neighboring property owner,] should not be permitted to subvert

the time constraints . . . imposed upon administrative appeals [under N.J.S.A.

40:55D-70] by belatedly asserting that he sought only an interpretation of a

zoning ordinance.) Thus, Squicciarini cannot circumvent his failure to appeal

the zoning officer's decision by instead seeking relief through an action in lieu

of prerogative writs.

In addition, the motion judge correctly dismissed Squicciarini's action in

lieu of prerogative writs as time barred. An action in lieu of prerogative writs

must be filed within forty-five days "after the accrual of the right to the review,

hearing or relief claimed." R. 4:69-6(a). And specifically, it "shall [not] be

commenced . . . to review a determination of a . . . [zoning] board of adjustment,

after [forty-five] days from the publication of a notice once in the official

newspaper of the municipality or a newspaper of general circulation in the

municipality. . . ." R. 4:69-6(b)(3).

Generally, actions in lieu of prerogative writs are not "maintainable as

long as there is available a right of review before an administrative agency which

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has not been exhausted." R. 4:69-5. However, a trial judge may excuse the

requirement to exhaust administrative remedies or extend the forty-five-day

statute of limitations in the interests of justice. Borough of Princeton v. Bd. of

Chosen Freeholders of Cnty. of Mercer, 169 N.J. 135, 152 (2001) ("Rule 4:69-

6(c) . . . authorizes enlargement 'where it is manifest that the interest of justice

so requires'"); 21st Century Amusements, Inc. v. D'Alessandro, 257 N.J. Super.

320, 322 (App. Div. 1992) ("R[ule] 4:69-5 requires a litigant . . . to exhaust local

administrative remedies requirement . . . unless 'it is manifest that the interest of

justice requires otherwise . . . .'"). In addition:

[T]he doctrine of exhaustion of administrative remedies

serves three primary goals: (1) the rule ensures that

claims will be heard, as a preliminary matter, by a body

possessing expertise in the area; (2) administrative

exhaustion allows the parties to create a factual record

necessary for meaningful appellate review; and (3) the

agency decision may satisfy the parties and thus obviate

resort to the courts.

[City of Atl. City v. Laezza, 80 N.J. 255, 265 (1979).]

"It is axiomatic that the exhaustion of remedies requirement is neither

jurisdictional nor absolute." 21st Century Amusements, 257 N.J. Super. at 322

(citing Matawan Borough v. Monmouth Cnty. Bd. of Tax'n, 51 N.J. 291, 296

(1968)). "[T]he exhaustion of remedies requirement is a rule of practice

designed to allow administrative bodies to perform their statutory functions in

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an orderly manner without preliminary interference from the courts." Brunetti

v. Borough of New Milford, 68 N.J. 576, 588 (1975) (citation omitted). A judge

may enlarge the forty-five days to appeal only where interests of justice warrant,

R. 4:69-6(c), due to: "(1) important and novel constitutional questions; (2)

informal or ex parte determinations of legal questions by administrative

officials; and (3) important public rather than private interests which require

adjudication or clarification.'" Borough of Princeton, 169 N.J. at 152 (quoting

Brunetti, 68 N.J. at 586). None of these exceptions apply here.

To overlook the forty-five-day time limitation would circumvent the court

rule's purpose to promote the important policy of repose and prevent parties from

resting on their rights. See Borough of Princeton, 169 N.J. at 152-53 (2001)

(citation omitted). Squicciarini's suit cannot be used to circumvent his failure

to pursue his judicial remedy by appealing the Board's decision. See Rezem

Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 107 (App.

Div. 2011) (holding a "substantive due process claim in a land use dispute

requires both governmental misconduct that 'shocks the conscience' and

exhaustion of remedies available under our land use law").

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III

Squicciarini argues that he did not make claims under the Tort Claims Act

("TCA"), N.J.S.A. 59:1-1 to 12-3, against the Borough and the County; thus, the

judge erred in dismissing his claims for compensatory damages against them

based on immunities afforded by N.J.S.A. 59:2-5. In support, he cites N.J.S.A.

59:1-4, which provides: "Nothing in this act shall affect liability based on

contract or the right to obtain relief other than damages against the public entity

or one of its employees." He also relies upon First Am. Title v. Rockaway, 322

N.J. Super. 583, 595 (Ch. Div. 1999), and Slocum v. Borough of Belmar, 233

N.J. Super. 437, 440 (Law. Div. 1989), for the proposition that "actions for

equitable relief are not subject to the Tort Claims Act." There is no merit to

these arguments.

Squicciarini's action in lieu of prerogative writs seeks declaratory relief,

which is not applicable to the TCA. N.J.S.A. 59:1–4; see also Blazer Corp. v.

N.J. Sports & Exposition Auth., 195 N.J. Super. 542, 549 (Law Div. 1984). His

suit also speaks to tort claims in demanding compensatory damages and

attorney's fees and costs against the Borough and the County for their alleged

interference with and trespass on lands resulting in the denial of his right to

construct the dwelling. The judge therefore correctly applied immunity to the

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governmental bodies under N.J.S.A. 59:2-5. This immunity is "pervasive and

applies to all phases of the licensing function," whether "discretionary or

ministerial," and extends both to the actual act of issuance of a permit or license

and the underlying decision-making process. Malloy v. State, 76 N.J. 515, 520

(1978). Thus, the actions by the Borough and the County pertaining to

Squicciarini's efforts to build on the property cannot seek monetary damages

due to alleged tortious conduct. See id. at 521.

In addition, assuming TCA immunities did not apply, Squicciarini failed

to file a tort claim notice within ninety days of the Board's denial of his variance

application. See N.J.S.A. 59: 8-8. Nor did he make a request to file a late tort

claim notice. See N.J.S.A. 59:8-9.

IV

Lastly, we briefly address Squicciarini's contention that because there was

no ordinance restricting his building on the property at the time it was created

in 1928, Section 1 of the ordinance exempts him from any current zoning

ordinances, thereby making the property a nonconforming lot under N.J.S.A.

40:55D-54 and not requiring him to seek a variance from the Board. He submits

4

N.J.S.A. 40:55D-5 defines a "[n]onconforming lot" as "a lot, the area,

dimension or location of which was lawful prior to the adoption, revision or

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that the property "existed as a legal building lot prior to the adoption of Closter's

[z]oning [o]rdinance in 1940." These contentions should have been raised in an

appeal of the Board's October 18, 2017 decision denying Squicciarini's

application to build the dwelling.

Squicciarini did not have an absolute right to build on his property, as he

contends. Section 1 of the ordinance unequivocally stated that building

improvements on the lots created by the 1928 Closter Park Estates subdivision

plan must be in accordance with other regulations of the Borough. The Board's

denial of Squicciarini's application to build was due to its determination that his

building plans were inconsistent with its zoning ordinances. Because

Squicciarini did not challenge that denial on appeal, we do not address the

specifics of his application. Filing an action in lieu of prerogative writs was an

improper means to seek reversal of the Board's action.

Affirmed.

amendment of a zoning ordinance, but fails to conform to the requirements of

the zoning district in which it is located by reason of such adoption, revision or

amendment."

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