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Austenberg v. Gianetti

A-0021-07T1 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; APPEALS — Where a municipality and a property owner enter into an agreement to resolve a zoning dispute and that agreement is memorialized in a resolution, objectors have only forty-five days to challenge the resolution.

A property owner challenged a neighboring owner’s use of the neighbor’s residential property for commercial purposes. The neighbor had leased a portion of his property to a construction company. Even though the neighbor’s house was also in a residential-zoned district, commercial activities were permitted pursuant to a pre-existing, non-conforming use variance. Following a series of disputes between the neighbor and the municipality relating to the neighbor’s alleged expansion of the non-conforming use, the neighbor and municipality entered into an agreement limiting the permitted commercial uses and requiring the creation of a grassy buffer separating the two properties. Later, following another dispute as to the neighbor’s expansion of the non-conforming use, the municipality and neighbor entered into another agreement which provided for fencing of the commercial portion, restricted parking and storage, and landscaping. This agreement was memorialized in a resolution that provided for a deed restriction to be recorded.

The adjacent property owner sued the municipality and his neighbor, seeking to have the agreements invalidated and have the neighboring property returned to the condition existing prior to the first agreement between the neighbor and the municipality. The property owner also sued the neighbor and the municipality, alleging nuisance, harassment, and emotional distress.

The lower court found that the property owner’s claim was really a prerogative writ action which should have been filed within forty-five days after the resolution was finalized. It then dismissed all the causes of action, both against the neighbor and the municipality, without prejudice. The property owner appealed, and the Appellate Division affirmed in part. The Court found that the property owner’s challenge of the resolution should have been filed within forty-five days and that the claims were now barred as untimely. It rejected the property owners’ argument that he never received notice of the resolution and therefore the time period should have been tolled. With respect to the property owner’s claim that the neighbor had improperly expanded the non-conforming use, the Court found that before the property owner could sue, he first had to exhaust all administrative remedies, including by filing a complaint with the municipality’s zoning board.

With respect to the property owner’s tort claims against the neighbor and the municipality, the Court found no reason for the lower court’s dismissal of those claims. However, the Court found that the property owner’s tort claims against the municipality were properly dismissed because the property owner had failed to file a Tort Claims Notice before filing suit, as required by statute.


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