MICHAEL RANTZ VS. THE PLANNING BOARD OF THE BOROUGH OF BAY HEAD (L-0626-17, OCEAN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2847-19
MICHAEL RANTZ,
Plaintiff-Appellant,
v.
THE PLANNING BOARD OF
THE BOROUGH OF BAY
HEAD and PATRICK WATERS
and SHANNON WATERS,
Defendants-Respondents.
____________________________
Argued July 6, 2021 – Decided September 8, 2021
Before Judges Messano and Suter.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-0626-17.
Edward F. Liston, Jr. argued the cause for appellant.
Barry A. Stieber argued the cause for respondent
Planning Board of the Borough of Bay Head (Citta,
Holzapfel & Zabarsky, attorneys; Barry A. Stieber, on
the brief).
Angelo A. Stio, III argued the cause for respondents
Patrick Waters and Shannon Waters (Troutman Pepper
Hamilton Sanders, LLP, attorneys; Angelo A. Stio, III,
of counsel and on the brief).
PER CURIAM
This matter is before us a second time. We refer to our prior opinion
which explains the context of this appeal.
Defendants Patrick and Shannon Waters purchased a home in Bay Head
and submitted a development application to the Planning Board of the Borough
of Bay Head (the Board) pursuant to N.J.S.A. 40:55D-68, seeking to have an
accessory structure to the rear of their house declared a pre-existing non-
conformity.1 Rantz v. Planning Bd. of Bay Head, No. A-5765-17 (App. Div.
Aug. 20, 2019) (slip op. at 2–3). Specifically, defendants contended the
structure had a sink, toilet and shower in it for years prior to their purchase.
Id., slip op. at 3. The application was hotly contested before the board by
plaintiff and others, since defendants' notices referred to their intention to
continue the use of the accessory structure as sleeping quarters for family and
guests. Id., slip op. at 3–4. Our prior opinion recounted what followed.
[D]efendants attempted to prove the sink, toilet and
shower were in the accessory structure prior to a 2003
1
The Board is a unified board that also exercises all powers of a board of
adjustment pursuant to N.J.S.A. 40:55D-25(c).
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amendment to Bay Head's zoning regulations. Prior to
the amendment, the ordinance was silent as to whether
plumbing fixtures were permitted inside accessory
structures; the amendment added language that
prohibited "interior plumbing except for . . . clothes
washers, dryers and work sinks" in any "accessory
building in a residential zone." Borough of Bay Head
Ordinance, § 147-6(D)(7). Plaintiff, on the other hand,
asserted that if the plumbing fixtures were installed
prior to 2003, they had been abandoned.
[Id., slip op. at 4.]
The borough zoning officer, Bart Petrillo, who was a member of the
Board, had recused himself at the first public meeting based on prior meetings
he had with defendants and objectors to the application before it was filed. Id.,
slip op. at 3–4. However, defendants subsequently called Petrillo as a witness
without objection. Id., slip op. at 4.
After considering the testimony of Petrillo, . . . nine
other witnesses and documentary proof, the Board
voted to issue a certificate of non-conformity as to the
sink and toilet, but not the shower. In its January 2018
memorializing resolution, the Board found that the
"sink and toilet [were] located in the accessory
structure since at least prior to 2003" and no owner had
"intended to abandon" their use. Citing Petrillo's
testimony, the Board credited his "opinion that prior to
the ordinance change in 2003, use of the sink and toilet
in the accessory structure [was] permitted" under Bay
Head's zoning regulations.
[Id., slip op. at 4–5.]
A-2847-19
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Plaintiff filed suit in the Law Division, and the judge vacated the Board's
resolution without consideration of plaintiff's arguments on the merits. Id., slip
op. at 5. The judge concluded once Petrillo disqualified himself from
consideration of the application, his testimony as a witness "irreparably tainted
the proceedings." Id., slip op. at 6. Defendants appealed and we reversed,
explaining that plaintiff failed to object when defendants called Petrillo as a
witness, and Petrillo's testimony was properly admitted and considered by the
Board. Id., slip op. at 10–11. We remanded the matter to the Law Division to
consider the merits of plaintiff's challenge to the Board's resolution. Id., slip op.
at 12.
On remand, the parties agreed that no further briefing or argument was
necessary. In a detailed opinion supporting his order affirming the Board's
resolution, the judge noted the apparent confusion before the Board based on
defendants' notices regarding continuation of the structure as a residential
dwelling. However, quoting extensively from the transcripts, the judge noted
the Board and defendants' counsel clarified the issue, such that "the only
approval being sought by [defendants was] a determination pursuant to N.J.S.A.
40:55D-68 that the existing plumbing facilities within the accessory building
were legal prior nonconformities and could be maintained."
A-2847-19
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The judge quoted Petrillo's testimony, and the testimony of Robert Dege,
a licensed plumber called by defendants, who testified that based on his
examination of the fixtures, the existing toilet and sink were installed no later
than 1940. Dege, however, was less certain about when the shower was
installed. The judge noted that the objectors' and plaintiff's opposition primarily
focused on the possible use of the structure for sleeping quarters, but
once that issue was resolved, neither . . . plaintiff nor
the others provided any substantial and relevant
evidence regarding the history of the plumbing
facilities in question other than the accessory structure
had not been used as a living space and therefore they
presumed these facilities were either not used or
abandoned.
The judge concluded the Board's "findings [were] supported by substantial
evidence." In particular, Petrillo's testimony supported the conclusion that prior
to the 2003 amendment, "the zoning ordinance allowed such fixtures in
accessory buildings." The judge also determined the Board reasonably relied on
Dege's testimony as to when the fixtures were installed. The judge noted there
was no evidence suggesting the fixtures "were ever disconnected, removed or
abandoned." Therefore, "the Board could and did reasonably infer that the use
of the facilities ha[d] been continuous and never abandoned." He found the
Board's findings "were based on the uncontroverted testimony of [defendants']
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witnesses." The judge also found "no legal basis . . . to disturb the factual
findings and ultimate decision of the Board." He entered an order affirming the
Board's resolution, and this appeal followed.
Before us, plaintiff argues that plumbing fixtures cannot be non-
conforming uses under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-
1 to -163, and even if they could be "certified" as such under N.J.S.A. 40:55D-
68, the evidence before the Board was insufficient. Alternatively, plaintiff
contends the evidence demonstrated a prior owner "abandoned" the facilities ,
and therefore defendants lost any protection for the facilities as pre-existing non-
conformities. Defendants and the Board argue otherwise. We affirm.
"When reviewing a trial court's decision regarding the validity of a local
board's determination, 'we are bound by the same standards as was the trial
court.'" Jacoby v. Zoning Bd. of Adjustment of Englewood Cliffs, 442 N.J.
Super. 450, 462 (App. Div. 2015) (quoting Fallone Props., LLC v. Bethlehem
Twp. Plan. Bd., 369 N.J. Super. 552, 562 (App. Div. 2004)). "[T]he action of
a board will not be overturned unless it is found to be arbitrary and capricious
or unreasonable, with the burden of proof placed on the plaintiff challenging the
action." Dunbar Homes, Inc. v. Zoning Bd. of Adjustment of Franklin, 233 N.J.
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546, 558 (2018) (alteration in original) (quoting Grabowsky v. Twp. of
Montclair, 221 N.J. 536, 551 (2015)).
"[Z]oning boards, 'because of their peculiar knowledge of local
conditions[,] must be allowed wide latitude in the exercise of delegated
discretion.'" Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (second alteration
in original) (quoting Kramer v. Bd. of Adjustment, Sea Girt, 45 N.J. 268, 296
(1965)). "Th[e] board's decisions enjoy a presumption of validity, and a court
may not substitute its judgment for that of the board unless there has been a clear
abuse of discretion." Ibid. (citing Cell S. of N.J., Inc. v. Zoning Bd. of
Adjustment of W. Windsor Twp., 172 N.J. 75, 81 (2002)).
However, "[a]lthough a municipality's informal interpretation of an
ordinance is entitled to deference, that deference is not limitless." Bubis v.
Kassin, 184 N.J. 612, 627 (2005) (citing Fallone Props., 369 N.J. Super. at 561).
"[T]he meaning of an ordinance's language is a question of law that we review
de novo." Ibid. (citing In re Distrib. of Liquid Assets, 168 N.J. 1, 11 (2001));
see also Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993).
In relevant part, N.J.S.A. 40:55D-68 provides: "[A]ny . . . 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
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structure existed before the adoption of the ordinance which rendered the use or
structure nonconforming. The applicant shall have the burden of proof."
(emphasis added). The MLUL defines both nonconforming structures and
nonconforming uses:
"Nonconforming structure" means a structure the size,
dimension or location of which was lawful prior to the
adoption, revision or amendment of a zoning ordinance,
but which fails to conform to the requirements of the
zoning district in which it is located by reasons of such
adoption, revision or amendment.
"Nonconforming use" means a use or activity which
was lawful prior to the adoption, revision or
amendment of a zoning ordinance, but which fails to
conform to the requirements of the zoning district in
which it is located by reasons of such adoption, revision
or amendment.
[N.J.S.A. 40:55D-5.]
Bay Head's zoning regulations permit "[a]ccessory uses and buildings" in
residential zones, specifically, "[p]rivate garages, carports or other accessory
structures on the same lot with, and customarily incidental to, the principal
building or use." Borough of Bay Head, N.J., Ordinance 2003-6, § 147-
6.1(B)(1). Since 2003, the ordinance provides that "[a]n accessory building
shall not have interior plumbing except for purposes of clothes washers, dryers,
and work sinks."
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Plaintiff contends sinks and toilets are simply "facilities," not uses, and so
the Board could not "certify" them as pre-existing nonconformities under the
MLUL. He argues the use of bathroom facilities cannot be disassociated from
the accessory structure itself; if defendants could not use the accessory structure
for housing or sleeping quarters, i.e., uses routinely associated with bathrooms,
the Board could not simply certify fixtures.
However, before the judge, plaintiff acknowledged more than once that a
sink and toilet made the accessory building a "nonconforming structure."
Indeed, this exchange took place between the judge and defense counsel:
Judge: Let's say for the sake of argument that the set
back and height were conforming. The structure itself
. . . met all the other bulk requirements of the ordinance
—
Counsel: Mm-hm.
Judge: — it would still be a nonconforming structure
in the sense that . . . it has a toilet and a sink, which an
accessory structure can't have, right?
Counsel: That's correct.
The Board did not consider whether having a sink and toilet within the accessory
building made its existence a nonconforming use, because defendants conceded
they would not use the building for a non-permitted use, i.e., residential dwelling
purposes.
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Having conceded the point before the trial judge, plaintiff's brief does not
address whether defendants' accessory building was a non-conforming structure
because of the sink and toilet. "An issue that is not briefed is deemed waived
upon appeal." N.J. Dep't of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501,
505–06 n.2 (App. Div. 2015) (citing Fantis Foods v. N. River Ins. Co., 332 N.J.
Super. 250, 266–67 (App. Div. 2000)). We therefore accept that the accessory
building was a nonconforming "structure." As such, plaintiff's contention that
defendants' application was beyond the certification procedure permitted by
N.J.S.A. 40:55D-68 lacks any merit.
Plaintiff contends that the Board lacked sufficient evidence upon which to
support a finding that the nonconformity legally existed prior to the 2003
amendment to the zoning regulations. He notes the 1940 zoning ordinance
described an accessory building as "a building, such as a stable, garage,
playhouse, barn or greenhouse which is subordinate and accessory to the main
building on the same lot," and did not expressly permit installations of sinks and
toilets. Plaintiff argues defendants failed to prove when their accessory
structure was actually built, and whether the building contained a sink and toilet
in conformity with zoning regulations prior to 2003.
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The Board relied on Petrillo's testimony regarding the zoning regulations
prior to 2003 and concluded a sink and toilet would not have made defendants'
accessory building nonconforming. Nothing in the 1940 ordinance prohibited
the fixtures, and Petrillo explained why the 2003 amendment limited permissible
fixtures to "clothes washers, dryers, and work sinks."
Undoubtedly, there was evidence implying that a prior owner may have
stopped using the fixtures, such as the lack of their inclusion in official "fixture
records" and the lack of a sewer assessment by the borough. Two witnesses who
rented the property from one of its prior owners testified that they were told not
to use the fixtures, implying any pre-amendment nonconformity was abandoned.
However, "[a] board 'has the choice of accepting or rejecting the testimony
of witnesses. Where reasonably made, such choice is conclusive on appeal.'"
Ne. Towers, Inc. v. Zoning Bd. of Adjustment of W. Paterson, 327 N.J. Super.
476, 498 (App. Div. 2000) (quoting Kramer, 45 N.J. at 288). The Board found
there was no evidence that at any point in time the owners of the property
"intended to abandon use of the sink and toilet," and, as recently as 2012, the
fixtures had "been 'winterized' and otherwise maintained by a licensed plumber."
"[A]n intention to abandon" a nonconformity is essential to concluding it
was in fact abandoned. Berkeley Square Ass'n, Inc. v. Zoning Bd. of Adjustment
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of Trenton, 410 N.J. Super. 255, 265 (App. Div. 2009) (quoting S & S Auto
Sales, Inc. v. Zoning Bd. of Adjustment for Stratford, 373 N.J. Super. 603, 613
(App. Div. 2004)). "Temporary non-use does not constitute abandonment."
Ibid. (quoting S & S Auto Sales, 373 N.J. Super. at 614). We "may not substitute
[our] judgment for that of the local board," and therefore we cannot conclude
the Board's factual determination in this regard was unsupported by sufficient
credible evidence. S & S Auto Sales, 373 N.J. Super. at 615 (citing Kramer, 45
N.J. at 296).
To the extent we have not addressed any other arguments raised by
plaintiff, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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