Acqua Development Corp. v. Township of Holmdel

• Decision Date: 28 September 1995
• Citation: 671 A.2d 636,287 N.J.Super. 578
• Parties: ACQUA DEVELOPMENT CORP., New Jersey Corporation, RCG Development Corp. of Holmdel V, Inc., New Jersey Corporation and Forest Hills at Holmdel, Inc., a New Jersey Corporation, Plaintiffs, v. The TOWNSHIP OF HOLMDEL in the County of Monmouth; the Township Committee of the Township of Holmdel, Alice M. Karlquist, the designated Zoning Officer of the Township of Holmdel, and Charles Naughton, the designated Building Official of the Township of Holmdel, Defendants.
• Court: New Jersey Superior Court

Page 578

287 N.J.Super. 578

671 A.2d 636

ACQUA DEVELOPMENT CORP., New Jersey Corporation, RCG Development Corp. of Holmdel V, Inc., New Jersey Corporation and Forest Hills at Holmdel Inc., a New Jersey Corporation, Plaintiffs, v. The TOWNSHIP OF HOLMDEL in the County of Monmouth; the Township Committee of the Township of Holmdel, Alice M Karlquist, the designated Zoning Officer of the Township of Holmdel, and Charles Naughton, the designated Building Official of the Township of Holmdel, Defendants.

Superior Court of New Jersey, Law Division Monmouth County.

Decided Sept. 28, 1995.

Thomas Daniel McCloskey, Holmdel, for plaintiffs (Thomas Daniel McCloskey, attorney).

Duane O. Davison, Freehold, for defendants (Lomurro, Davison, Eastman & Munoz, P.A., attorneys).

HAYSER, J.T.C., (temporarily assigned).

May a municipality condition the issuance of a zoning permit on the payment of delinquent real property taxes? That is the central issue presented in this matter.

The essential facts are not in dispute. Plaintiffs are residential developers in the Township of Holmdel. In or about June 1995, plaintiffs Acqua Development Corp. and RCG Development Corp. of Holmdel V, Inc., made applications to the Township's zoning officer for the issuance of zoning permits for several lots in their approved development projects. ¹ On or about July 6, 1995, the zoning officer denied these applications due to the fact that the properties in question were burdened with delinquent real property taxes. Thereafter, plaintiffs sought relief by Order to Show Cause, which was entered on July 31, 1995, and the issue as to the denial of the zoning permits was tried on the return date, since, as a matter of law, it was ripe for disposition at that time.

Plaintiffs state that the defendant zoning officer in denying the zoning permits in question is relying upon two municipal ordinance provisions:

First, Township Ordinance No. 90-28, which provides, in relevant part, as follows:

SECTION 1. Any applicant for the issuance or renewal of any license or permit issued by the Township of Holmdel, or requiring the approval of the Township of Holmdel, shall be required, if he, she or it is the owner thereof, to pay any delinquent property taxes or assessments on the property wherein the business or activity for which the license or permit is sought or wherein the business or activity is to be conducted.

....

SECTION 4. The provisions of this Ordinance shall not apply to or include any alcoholic beverage license or permit issued pursuant to the 'Alcoholic Beverage Control Act,' R.S. 33:1-1 et seq. The provisions of this Ordinance shall apply to all other permits and licenses issued by, or requiring approval of, the Township of Holmdel, including but not limited to:

1. Permits required pursuant to the Uniform Construction Code;

2. Certificates of Occupancy;

3. Soil Removal or Excavation Permits;

4. Food Establishment Licenses;

5. Water and Sewer Connection Permits;

6. Demolition Permits;

7. Business Sale Licenses;

8. Auction Sale Licenses;

9. Taxi Owner Licenses;

10. Limousine & Livery Licenses;

11. Games of Chance Licenses;

[Id. (emphasis added).] ²

Second, subsection G of Section 78-16 (Permits) of ARTICLE II (Administrative Provisions) of Chapter 78 (Development Regulations) of the Code of the Township of Holmdel, which provides as follows: "[n]o zoning permit, building permit or certificate of occupancy shall be issued for approval granted by the approving authority, if taxes or assessments for local improvements are due or delinquent on the property for which application is made." ³

Ultimately, the question is whether the actions of the defendant zoning officer were arbitrary, capricious, unreasonable or, more simply, erroneous, in conditioning the issuance of the zoning permits in question on the payment of delinquent real property taxes. See generally, Anastasio v. Planning Bd. of Tp. of West Orange, 209 N.J.Super. 499, 522, 507 A.2d 1194 (App.Div.), certif. denied, 107 N.J. 46, 526 A.2d 136 (1986). The answer depends upon the validity of the ordinances in question relied upon by the zoning officer in denying the zoning permit approvals.

Like any municipal ordinances, there is a presumption of validity that attaches to the ordinances in question, which places the burden upon the plaintiffs to clearly show that the ordinances, particularly as they may apply to them, bear no reasonable relationship to the public health, morals, safety or welfare. See First Peoples Bank v. Medford Tp., 126 N.J. 413, 418, 599 A.2d 1248 (1991); Vickers v. Tp. Com. of Gloucester Tp., 37 N.J. 232, 242, 181 A.2d 129 (1962), cert. denied, 371 U.S. 233, 83 S.Ct. 326, 9 L.Ed.2d 495 (1963), rev'd on other grounds, 92 N.J. 158, 456 A.2d 390 (1983). Moreover, a court should not question the wisdom of an ordinance, and if it is reasonably debatable, it should be upheld. Bow & Arrow Manor v. Town of West Orange, 63 N.J. 335, 343, 307 A.2d 563 (1973). This is the same standard that applies to judicial review of other municipal actions. Kramer v. Bd. of Adjust., Sea Girt, 45 N.J. 268, 296, 212 A.2d 153 (1965); Rowatti v. Gonchar, 101 N.J. 46, 51-52, 500 A.2d 381 (1985). Finally, however, the ordinances can only carry out those powers delegated by the Legislature to municipalities. Riggs v. Long Beach Tp., 109 N.J. 601, 610-611, 538 A.2d 808 (1988).

Plaintiffs argue that under the holdings in Home Builders League, etc. v. Evesham Twp., 174 N.J.Super. 252, 416 A.2d 81 (Law Div.1980) and Ocean Cty. Realtor Bd. v. Beachwood Bor., 248 N.J.Super. 241, 590 A.2d 736 (Law Div.1991), the zoning officer may not condition the approval of zoning permits on the payment of delinquent taxes, and the ordinances in question, therefore, are invalid. While not precedential, it is urged that these decisions should be persuasive in resolving the issue presented in the instant matter. Although not controlling, the opinions of courts of coordinate jurisdiction, indeed, should be taken into consideration in deciding an issue as presented in this case. Manturi v. V.J.V., Inc., 179 N.J.Super. 300, 306, 431 A.2d 859 (App.Div.1981).

In Home Builders League, the court concluded that ordinances that required a construction (building) permit applicant or certificate of occupancy applicant to have current all real property taxes before the permit or certificate for that property could issue, were invalid, since they imposed additional requirements for receipt of these documents beyond those pre-empted by the State Uniform Construction Code Act, N.J.S.A. 52:27D-119 to -141, and its implementing regulations.

However, the Home Builders League court also concluded that the area of pre-emption only includes requirements "within the area of action or umbrella of the act or rules adopted by the Commission implementing the act." Home Builders League, supra, 174 N.J.Super. at 260, 416 A.2d 81. As the court stated: "[t]he references in the statutes and rules to 'other applicable laws and ordinances' refer to standards adopted which may not be appropriate for coverage within the scope of the act. These, obviously, would include compliance with a zoning ordinance or an ordinance requiring connection to a water or sewer system." Id. at 260, 416 A.2d 81 (emphasis added); see also, N.J.S.A. 52:27D-131 and N.J.A.C. 5:23-2.15(b).

In J.P. Properties v. Macy, 183 N.J.Super. 572, 444 A.2d 1131 (Law Div.1982), the court set forth the obvious purpose and reason for the Act: "[t]he Uniform Construction Code was adopted, as its name implies, to provide uniformity, to supersede the maze of local building ordinances and to overcome ragged, discriminatory municipal enforcement practices." Id. at 576, 444 A.2d 1131 (citing N.J.S.A. 52:27D-120).

Again, the court in Home Builders League stated that in considering the Act, "the intent may ... be summarized as the elimination of construction regulations by local government units, the Legislature having decided that there should be a unitary construction code applicable throughout the State." Home Builders League, supra, 174 N.J.Super. at 257, 416 A.2d 81 (emphasis supplied); see also, N.J. State Plumbing Inspectors Ass'n Inc. v. Sheehan, 163 N.J.Super. 398, 401, 394 A.2d 1244 (App.Div.1978); Matter of Cherry Hill Tp., 217 N.J.Super. 140, 142-143, 524 A.2d 1327 (App.Div.1987).

A zoning approval is not a construction approval. Mahwah Tp. v. Landscaping Tech., 230 N.J.Super. 106, 109, 552 A.2d 1021 (App.Div.1989). A zoning permit may be required pursuant to the Municipal Land Use Law and not the Uniform Construction Code Act. Specifically, a "zoning permit" may be issued by the "administrative officer" when "required by ordinance as a condition precedent to the commencement of a use or the erection, construction ... or installation of a structure or building and ... which acknowledges that such use, structure or building complies with the provisions of the municipal zoning ordinance or variance...." N.J.S.A. 40:55D-7 (emphasis added). ⁴

Moreover, in Bell v. Tp. of Bass River, 196 N.J.Super. 304, 482 A.2d 208 (Law Div.1984), the court referenced Home Builders League and J.P. Properties, supra, and stated that "[t]hese rulings required the construction official in the present case to have a zoning approval exhibited to him before he was required to issue a building permit.... It was the intention of the Legislature that zoning matters affecting construction applications be resolved before permits may be issued by construction officials." Id. at 315, 482 A.2d 208 (emphasis added); see also, Cherry Hill Tp. v. Oxford House, 263 N.J.Super. 25, 52, 621 A.2d 952 (App.Div.1993).

Subsection 78-16B of the defendant Township's Development Regulations provides that "a zoning permit shall be issued simultaneously with or before the issuance of any building permit or certificate of occupancy." That provision, together with Subsection 78-16G, has existed since Section...