GEORGE MILLER JR DEBRA MILLER v. CITY OF MARGATE (2011)

Plaintiffs George K. Miller and his wife Debra Miller appeal from two orders of the trial court dated October 16, 2009, and April 29, 2010.   We affirm substantially for the reasons stated by Judge Valerie Armstrong in her written opinions dated October 16, 2009, and April 29, 2010.

I

This appeal arises from a long-running dispute between the Millers and their neighbors, John Scott Abbott and Joanne Abbott, over the Abbotts' waterfront deck.   We need not recount the history in detail, as it is set forth at length in our two prior opinions, Miller v. Abbott, No. A-6661-06 (App.Div. Apr. 30, 2008)(Miller I ), and Miller v. Abbott, App. Div. No. A-6091-07 (App.Div. Mar. 31, 2009) (Miller II ).   However, we provide a brief summary as background.

A

In deciding the first appeal, we held that the Margate zoning board erred in granting the Abbotts “c” and “d” variances retroactively approving construction of the deck.   See N.J.S.A. 40:55D-70c, -70d.   We remanded with instructions that the Abbotts either remove the deck or modify it to comply with the zoning ordinance.¹  The Abbotts then submitted for municipal approval a set of plans to modify their deck.   The municipal land use administrator approved those plans, but the Millers filed a motion in aid of litigant's rights before the trial court asserting that the proposed modifications were insufficient.

In an opinion dated August 8, 2008, the trial court determined that the proposed deck modifications were consistent with the zoning ordinance.   The Millers appealed from that decision, but in deciding their appeal we did not reach the consistency issue.   Instead, we once again remanded to the trial court, this time to consider whether changes to the zoning ordinance, adopted on September 18, 2008, had rendered the dispute moot under the time of decision rule.   We suggested that the proceedings on remand be consolidated with the Millers' pending challenge to the ordinance amendments.  Miller II, supra, slip op. at 4-5.

B

We pause here to describe the history of the amendments.   Shortly after we decided Miller I, Mr. Abbott wrote to the municipal governing body (the City Commissioners), noting ambiguities in the zoning ordinance and asking them to adopt a zoning amendment that would clarify the height requirements for waterfront decks.   He pointed out that neighboring municipalities had ordinances allowing homeowners to raise the grade of their land when they built new, higher bulkheads and allowing them to build decks on top of the new bulkheads.   He submitted a proposed amendment that he had drafted.

The ordinance was introduced but not adopted, after the Millers' attorney objected and insisted that the issue should first be referred to the local planning board.²  The governing body commissioned Ed Walberg, who had been the Margate City Engineer for the past sixteen years, to review and evaluate “the Land Use Ordinance dealing with bay front bulkheads and decks and other applicable ordinances.”

Walberg conducted an extensive study of bulkheads and decks, and their regulation, in Margate and several other municipalities.   He took photographs of bayfront docks and decks throughout the municipality.   He also considered floodwater levels in prior major storms.   He then submitted a report and several proposed ordinance amendments based on his study (Walberg's report).

After receiving Walberg's report, the City Commissioners referred the matter to the planning board for consideration.   Walberg later provided a supplemental report to the planning board, reviewing the proposed amendments for consistency with the municipal master plan.   The planning board considered the proposals at a July 31, 2008 meeting.   Our review of the meeting transcript reveals that the board did not focus on, or even mention, the Abbott deck, but rather was concerned with the city-wide impact of the proposed amendments.

After the planning board voted to approve the proposed amendments, the City Commissioners held a public hearing to consider them.   At that hearing, the Millers' attorney raised a series of objections to the ordinances.   However, the Commissioners voted to adopt the ordinance amendments.

In pertinent part, on bayfront property, the amendments permit the construction of new or reconstructed bulkheads up to a height of nine feet (Ordinance No. 34-2008).   In the bayfront areas, the amendments permit “[d]ecks located in the rear yard ․ with a maximum elevation” of nine feet, and permit fill “to a maximum height of the bulkhead” (Ordinance No. 36-2008).   The latter amendment further provides that “[d]ecks may extend waterward of the bulkhead with N.J.D.E.P. approval.”   The amendments also impose new and more stringent procedures for the review and approval of waterfront decks and bulkheads.

C

On our remand, Judge Armstrong consolidated the Millers' challenge to the ordinance amendments with the litigation over the Abbott deck.   In a written opinion dated October 16, 2009, she first addressed the amendments.   She rejected the Millers' argument that before considering the amendments the Township was required to give personal notice to all property owners living within 200 feet of the affected bayfront residential districts.  N.J.S.A. 40:55D-62.1. Distinguishing Robert James Pacilli Homes, L.L.C. v. Twp. of Woolwich, 394 N.J.Super.   319 (App.Div.2007), she concluded that the amendments did not change “the ‘classification’ of the bayfront districts.”   Further, “[t]he changes in the Ordinance are neither radical nor sweeping and do not alter the overall character of the neighborhoods involved.”   Therefore, unlike the more significant amendments at issue in Pacilli Homes, personal notice was not required.

In a lengthy discussion, Judge Armstrong also rejected the Millers' contention that Walberg should have recused himself from acting as the municipal engineer due to an alleged conflict of interest.   She concluded that although Walberg resided in the bayfront district and lived next door to the Abbotts, there was no evidence that he had any “personal, financial or social relationship” with the Abbotts.   Nor was there evidence that he had any different interest in the subject of the amendments than “the other City residents who reside along the bay front.”   She found “inexplicabl[e]” the Millers' argument that “they, who are also neighbors of Walberg in the affected zoning district, will be substantially harmed by the enactment of these Ordinances, yet Walberg's property will somehow benefit from this legislation.”   She also noted that Walberg was not specially hired for this project but had been the municipal engineer for the past sixteen years.

Relying on Anfuso v. Seeley, 243 N.J.Super.   349 (App.Div.1990), and Tumino v. Long Beach Twp., 319 N.J.Super.   514 (App.Div.1999), the judge further concluded that State law did not preempt the Town from regulating bulkheads as long as its ordinances did not conflict with State enactments.   She found it “clear that Ordinance No. 34-2008 which regulates the height of the City's bulkheads can coexist with the Waterfront Development Act and Coastal Zone Management regulations.   Hence, preemption is not an issue.”

She also found that the amendments clearly served a public purpose and were “rationally based,” in light of Walberg's study showing the “lack of consistency with regard to the height, size, and protrusion into the waterway of the existing decks and bulkheads along the City's residential waterfront properties.”   She found no evidence that the ordinances were adopted solely to benefit the Abbotts.   Instead, she found “[t]hey were directed at serving the general public interest.”

In a second opinion, dated April 29, 2010, Judge Armstrong concluded that the amendments applied to the Abbotts' deck under the time of decision rule.   See Maragliano v. Land Use Bd. of Twp. of Wantage, 403 N.J.Super. 80, 83 (App.Div.2008).   She found that the Abbotts' delay in modifying the deck was understandable, in light of the Millers' appeal from her earlier decision approving the Abbotts' proposed modifications.   She also considered that even if the Abbotts tore down the existing deck, they could simply rebuild it in conformity with the amended ordinances.

In response to the Millers' request for a declaratory ruling that bayfront decks continue to be subject to the same setback requirements as other decks, Judge Armstrong concluded that was not the case.   She construed the amendments as permitting rear yard bayfront decks “so long as the maximum elevation is not exceeded” and as permitting “decks extending waterward of the bulkhead with N.J.D.E.P. approval.”   However, noting that the Abbotts had not followed “the procedural review requirements set forth in the amended Ordinances,” she declined to decide whether their deck conformed with the amended ordinances.   Rather “if the court's further involvement is required to determine the conformity of the deck, that issue must be placed squarely before the court upon all administrative remedies being exhausted.”

II

On this appeal, the Millers present the following points for our consideration:

POINT I:  THE TRIAL COURT ERRED IN SUSTAINING THE ORDINANCES.

A. THE ORDINANCES SHOULD HAVE BEEN DECLARED VOID FOR FAILURE TO GIVE PERSONAL NOTICE.

B. THE ORDINANCES SHOULD HAVE BEEN VOIDED PURSUANT TO THE LOCAL GOVERNMENT ETHICS LAW.

C. THE ORDINANCES SHOULD HAVE BEEN DECLARED VOID BECAUSE MUNICIPAL REGULATION OF BULKHEADS IS PREEMPTED BY STATE LAW.

D. THE ORDINANCES ARE ARBITRARY AND CAPRICIOUS.

1. The Ordinances Were Adopted for an Improper Purpose.

2. The Ordinances are Inconsistent with the City's Master Plan and

3.  The Ordinances are Unsupported by the Record.

POINT II:  THE TRIAL COURT ERRED IN APPLYING THE TIME OF DECISION RULE TO ALLOW THE ABBOTT DECK TO REMAIN UNMODIFIED.

A. THE TIME OF DECISION RULE SHOULD NOT BE CONSTRUED TO EXCUSE THE ABBOTTS FROM COMPLYING WITH THE APPELLATE DIVISION'S DECISION IN MILLER V. ABBOTT.

B. THE TRIAL COURT ERRED IN DENYING THE DECLARATORY RELIEF SOUGHT BY THE MILLERS.

Having reviewed the record, we conclude that these contentions are all without merit.   The Millers' legal arguments were addressed thoroughly and correctly in Judge Armstrong's cogent opinions and, except for our comments below, they do not warrant further discussion in a written opinion.   R. 2:11-3(e)(1)(E).

We agree with Judge Armstrong that the Millers' reliance on Pacilli Homes, supra, is misplaced.   In Pacilli Homes, we construed N.J.S.A. 40:55D-62.1 ³ , which requires that a municipality provide personal notice to residents before adopting proposed changes in the “classification” of a zoning district.  Pacilli Homes, supra, 394 N.J.Super. at 329 (quoting N.J.S.A. 40:55D-62.1).   We held that the statutory requirement was triggered by a proposal that would have a sweeping and dramatic effect on the district.   Id. at 332.   Referring to an amendment that, among other things, would have changed the density from one dwelling per two acres, to one dwelling per ten acres, we held:

This change within the R-1 classification effects a fundamental alteration of the character of this zoning district.   One dwelling unit for every ten acres, as encouraged by Option 2, transforms a zoning district of generous lots to one of manorial proportions.   The changes in the R-2 zone are as sweeping in character.

[Ibid.]

We found that the proposed amendments “altered the intensity of the residential use within each zone and promised to affect the character of the future development in both zones.”  Id. at 333.   By contrast, the relatively modest and limited changes effected by the amendments at issue here (e.g., regulating the height of rear yard decks and bulkheads along the bayfront) are in no way analogous to those in Pacilli Homes.   Personal notice was not required.

We also agree with the trial judge that the ordinance amendments were rationally based and served a public purpose.   The crux of the Millers' challenge is their contention that the amendments were special legislation, aimed solely at legitimizing the Abbotts' deck.   The record simply does not support that view.   It is clear from the Walberg report and from the hearings before the planning board and the City Commissioners that the amendments were intended to (a) mitigate the periodic flooding associated with low bulkheads;  (b) set unambiguous, uniform limits on the height of waterfront decks;  and (c) require a review process prior to the construction of decks and bulkheads.   The record does not support a finding that the amendments were “spot zoning” for the Abbotts' benefit, or that they were inconsistent with the master plan.   Cf. Riya Finnegan L.L.C. v. Twp. Council of South Brunswick, 197 N.J. 184, 198-99 (2008).

We likewise agree with the trial judge that Walberg did not have a conflict of interest in this matter.   The Millers' argument is premised on the following provision of the Local Government Ethics Law:

No local government officer or employee shall act in his official capacity in any matter where he, a member of his immediate family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment.

[N.J.S.A. 40A:9-22.5d.]

The Millers contend that although they see the ordinances as detrimental to their property, other owners might welcome “the opportunity to build a deck like Abbott's.”   Thus, they contend that because Walberg owns a house located on the water, he might possibly benefit from the ordinance.   They also contend that Walberg had a conflict in providing recommendations concerning amendments that might benefit “his neighbor Abbott.”   However, they presented no evidence concerning any social, financial or other relationship between Walberg and the Abbotts.   Nor did they present any evidence about Walberg's property, beyond its general location.

Taken to its logical extreme, the Millers' position would preclude all municipal officials living in a town from voting on zoning ordinances, because their property might be affected by an ordinance or because they might live near someone whose property would be affected by it.

Local governments would be seriously handicapped if every possible interest, no matter how remote and speculative, would serve as a disqualification of an official.   If this were so, it would discourage capable men and women from holding public office.   Of course, courts should scrutinize the circumstances with great care and should condemn anything which indicates the likelihood of corruption or favoritism.   But in doing so they must also be mindful that to abrogate a municipal action at the suggestion that some remote and nebulous interest is present, would be to unjustifiably deprive a municipality in many important instances of the services of its duly elected or appointed officials.

[Van Itallie v. Borough of Franklin Lakes, 28 N.J. 258, 269 (1958).]

“A conflicting interest arises when the public official has an interest not shared in common with the other members of the public.”  Wyzykowski v. Rizas, 132 N.J. 509, 524 (1993).   It is clear from this record that Margate has several bayfront neighborhoods, all of which will be regulated by the ordinance amendments.   The fact that Walberg happens to live in one of those neighborhoods does not give him “an interest not shared in common with the other members of the public.”  Ibid. Moreover, the amendments created burdens as well as potential benefits for owners of waterfront homes, in requiring them to build higher replacement bulkheads, limiting decks to nine feet in height, and requiring prior review and approval of all decks and bulkheads.

Finally, we find no error in the judge's refusal to adjudicate issues not ripe for her consideration.

Affirmed.

FOOTNOTES

FN1. We specifically declined to address the outer four feet of the deck overhanging the bulkhead.   This section, sometimes referred to as a “fixed dock” or “recreational dock,” had been approved in an earlier municipal application, and was not addressed by the zoning board in Miller I. We therefore held that the Millers' challenge regarding this section of the structure was not properly before us.  Miller I, supra, slip op. at 21, n. 3. We reiterated this conclusion in Miller II, supra, slip op. at 3. Our unambiguous rulings, however, have not prevented the Millers from repeatedly seeking to re-raise the issue..  FN1. We specifically declined to address the outer four feet of the deck overhanging the bulkhead.   This section, sometimes referred to as a “fixed dock” or “recreational dock,” had been approved in an earlier municipal application, and was not addressed by the zoning board in Miller I. We therefore held that the Millers' challenge regarding this section of the structure was not properly before us.  Miller I, supra, slip op. at 21, n. 3. We reiterated this conclusion in Miller II, supra, slip op. at 3. Our unambiguous rulings, however, have not prevented the Millers from repeatedly seeking to re-raise the issue.

FN2. Miller is the planning board attorney, although he recused himself from advising the board on this matter..  FN2. Miller is the planning board attorney, although he recused himself from advising the board on this matter.

FN3. “Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification ․ of a zoning district, ․ shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property ․ located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district.”  N.J.S.A. 40:55D-62.1..  FN3. “Notice of a hearing on an amendment to the zoning ordinance proposing a change to the classification ․ of a zoning district, ․ shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property ․ located, in the case of a classification change, within the district and within the State within 200 feet in all directions of the boundaries of the district.”  N.J.S.A. 40:55D-62.1.

PER CURIAM