Leone v. Howell Twp.
| Docket Number | A-0046-21 |
| Decision Date | 01 August 2023 |
| Parties | JULIAN LEONE, Plaintiff-Appellant, v. HOWELL TOWNSHIP, HOWELL ZONING BOARD OF ADJUSTMENT, STATE OF NEW JERSEY, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, and CATHERINE R. MCCABE, in her official capacity as Commissioner of the New Jersey Department of Environmental Protection, Defendants-Respondents. |
| Court | New Jersey Superior Court — 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.
Argued June 15, 2023
On appeal from the Superior Court of New Jersey, Law Division Monmouth County, Docket No. L-4517-19.
Anthony J. Brady, Jr. argued the cause for appellant.
Kelsey A. McGuckin-Anthony argued the cause for respondents Howell Township and Howell Zoning Board of Adjustment (Dasti Murphy, McGuckin, Ulaky, Koutsouris &Connors, attorneys; Kelsey A. McGuckin-Anthony, on the brief).
Chloe Gogo, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Matthew J. Platkin, Attorney General, attorney; Donna Arons, Assistant Attorney General, of counsel; Chloe Gogo, on the brief).
Before Judges Currier, Mayer and Enright.
Plaintiff appeals from the June 14, 2021 orders dismissing his complaint against the State defendants[1] with prejudice and granting the Township defendants[2] summary judgment, and the subsequent August 11, 2021 order denying reconsideration. We affirm.
Plaintiff and his wife purchased a single-family home on property in a new residential development in Freehold in December 2015. Because the development is adjacent to a farm, it is subject to a farmland and perimeter buffer and conservation easement (easement), granted by the developer to the Township and recorded by deed in Monmouth County in December 2012. The easement was granted as a condition of the final major subdivision approval for the development.
The deed further provided the easement is "deemed to be and shall be a continuing covenant running with the land and shall be binding upon and in favor of the successors and assigns of the respective parties hereto."
When plaintiff and his wife took title to the property in 2015, the deed stated the property was "SUBJECT to easements, zoning requirements, and other restrictions of record granted or to be granted," and specifically that the property was "[s]ubject to a [fifty foot] wide Farmland and Perimeter Buffer and Conservation Easement dedicated to the Township . . . as shown on the above referenced filed map."
In 2017, the DEP approved the Township's application to participate in the Green Acres Project under the Green Acres Land Acquisition Act, N.J.S.A. 13:8A-1 to -56, and its regulations, N.J.A.C. 7:36-1.1 to -26.11. Under that agreement, the Township was granted $750,000 in state funds to build an outdoor recreational area, and the Township was required to "comply with all local, state, and federal laws, rules, and regulations," including "all Green Acres Laws." Any lands held by the Township for conservation were thereafter encumbered by the Green Acres laws, including the easement on plaintiff's property. The Township was not permitted to "convey, dispose of, or divert to a use for other than recreation and conservation purposes any lands held by the [Township] for those purposes at the time of receipt of Green Acres funding unless the [Township] obtain[ed] prior approval from the Commissioner and the State House Commission," in accordance with N.J.A.C. 7:36-26; N.J.S.A. 13:A-47(b); and N.J.S.A. 52:20-1.
After plaintiff purchased his property, he installed an underground irrigation system and a swing set structure on the easement. Plaintiff alleged in his complaint that in September 2018, the Township's Code Inspector informed plaintiff he had to stop cutting the grass in the area of the easement and remove the irrigation system and swing set. Later that month, the Township sent plaintiff a notice of violation of Municipal Code § 188-127, structure on/disturbing an easement.
Thereafter, plaintiff met with the Township's attorney and Land Use Director. According to plaintiff, he informed them of his medical condition- asthma-and requested an accommodation for his disability. The municipal representatives suggested plaintiff file an appeal with the Board as they did not have the power to grant an accommodation. A second violation was issued to plaintiff, and additional property owners in the development also received violation notices in December 2018.
In January 2019, plaintiff and his wife filed an application with the Board for a bulk variance to permit them to mow and water the easement area and maintain the swing set and irrigation system as erected on the easement. Plaintiff requested the accommodations under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 to 12213. He advised he sought to mow and irrigate the lawn area "to control the growth of the grass and weeds so as not to affect his breathing disability. "He stated the swing set "was placed in an area where he could see his children and not be exposed to conditions which potentially could affect his health." During the Board hearing, plaintiff acknowledged he could relocate the swing set elsewhere on his property.
The Board presented a letter from the DEP's Director of the Green Acres Program informing the Board of its opposition to plaintiff's application for a variance permitting the swing set and irrigation system to remain within the easement area. The letter stated:
The Easement provides that the property is to remain in its natural state and the construction of anything, including structures of any kind whatsoever, is prohibited in the Easement Area. As these improvements were installed after [plaintiff] purchased the property, and they were on notice that "constructing anything," including structures, was prohibited in the Easement Area, the irrigation system and swing set must be removed to avoid an unauthorized diversion of parkland (resulting in a minimum "after the fact" compensation ration of 20:1) and the requirement that the Township seek a partial release of the Easement.
After two days of hearings, in a Resolution dated October 7, 2019, the Board granted plaintiff's application to water and mow the easement but denied his application to permit the swing set and underground sprinkler system to remain on the easement area. The swing set and underground irrigation system had to be moved off the easement, however the easement could be watered from other areas of the yard outside the easement.
The Resolution stated the Board "did not find that retaining the swing set and irrigation system within the farmland buffer/conservation easement met the reasonable and necessary accommodations analysis under the ADA." The swing set did not relate "in any way to [plaintiff]'s ability to breathe properly," and it "[could] be easily moved to an area closer to the residence, and out of the easement area." Therefore, plaintiff did not demonstrate "the requested accommodations[] [were] reasonable and necessary or otherwise related to [plaintiff]'s full use and enjoyment of his property." Plaintiff did not appeal from the Board's decision.
Instead, plaintiff filed a complaint against defendants alleging violations of the ADA; the Fair Housing Act (FHA), 42 U.S.C. §§ 3601 to 3631; the Rehabilitation Act of 1973 (RHA), 29 U.S.C. §§ 701 to 796I; and the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50.
The State defendants moved to dismiss plaintiff's claims for failure to state a cause of action under Rule 4:6-2(e). The Township defendants moved for summary judgment.
On June 11, 2021, after hearing argument on both motions, the court issued an oral decision granting the motions, memorialized in the June 14, 2021 orders.
In addressing the State's motion to dismiss, the judge found the complaint failed "to explain or assert how the State [d]efendants . . . excluded [plaintiff] from a service, program or activity of the State" as required to establish a claim under the ADA or RHA. The judge further found the FHA was not applicable to the circumstances "because [plaintiff] d[id] not dwell in or on the easement, but rather maintain[ed] it for use of his children and . . . for their enjoyment." Nor could plaintiff support a claim under the LAD because "the easement [wa]s not a place of public accommodation to which [plaintiff] must be afforded . . . equal access, and . . . the LAD d[id] not even refer to conservation easements or any similar such property being protected under that legislation."
Furthermore, plaintiff had not followed the process required under the Conservation Restriction and Historic Preservation Restriction Act, N.J.S.A. 13:8B-1 to -9. The judge noted plaintiff had not applied "to the State for . . . disposal or diversion in accordance with Green Acres," and "because . . . DEP ha[d] not taken any actions . . . directly affecting [plaintiff] or his property, [any] review of [plaintiff]'s claims [was] premature."
In granting the Township defendants summary judgment, the judge concluded plaintiff "was unable to articulate any valid claims" under the statutes cited in his complaint.
Plaintiff's subsequent ...
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