                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any c ourt." 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-1868-17T4

CONSTANTINE MATTHEWS
and PATRICIA MATTHEWS,

          Plaintiffs-Appellants,

v.

CHARLES EHRMANN, LINDA
EHRMANN, and GREENLAND
LANDSCAPE CO., INC.,

     Defendants-Respondents.
_____________________________

                    Argued December 18, 2018 – Decided February 20, 2019

                    Before Judges Gilson and Natali.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Passaic County, Docket No. C-
                    000064-17.

                    John J. Segreto argued the cause for appellants (Segreto
                    & Segreto, LLP, attorneys; John J. Segreto, of counsel
                    and on the briefs).

                    Mark J. Semeraro argued the cause for respondents
                    Charles Ehrmann and Linda Ehrmann (Kaufman,
            Semeraro & Leibman, LLP, attorneys; Gregory K.
            Asadurian, on the brief).

            William I. Strasser argued the cause for respondent
            Greenland Landscape Co., Inc. (Strasser & Associates,
            PC, attorneys; William I. Strasser, on the brief).

PER CURIAM

      This appeal arises out of a land use dispute.       Plaintiffs, who own a

residential home, sued defendants seeking to enjoin them from performing

certain commercial activities on an adjacent piece of property that plaintiffs

contend were not permitted uses under the township's zoning ordinances.

Plaintiffs also sought compensatory damages, alleging that defendants' activities

were disturbing plaintiffs' "peace and tranquility" and adversely affecting their

"health and well-being." Defendants moved to dismiss plaintiffs' complaint for

failure to state a claim, arguing that their uses were pre-existing, nonconforming

uses that had been authorized by two previously-issued zoning permits.

      In orders entered on November 16, 2017, the Chancery court granted

defendants' motions and dismissed plaintiffs' complaint with prejudice. The

court also denied a request for attorney's fees made by defendants Charles and

Linda Ehrmann (the Ehrmanns). Plaintiffs appeal from the orders dismissing

their complaint and the Ehrmanns cross-appeal from the portion of the order

denying their request for attorney's fees.

                                                                          A-1868-17T4
                                        2
      A review of the record and law establishes that defendants were not

entitled to dismissal of plaintiffs' complaint. Moreover, while this appeal was

pending, defendant Greenland Landscaping Company, Inc. (Greenland) ceased

operating on the property. Accordingly, on remand, the Chancery court is

directed to dismiss as moot plaintiffs' claim for injunctive relief against

Greenland.     We reverse and remand the remaining claims for further

proceedings.       We also dismiss, as moot, the request by the Ehrmanns for

attorney's fees.

                                      I.

      We take the facts from plaintiffs' complaint and from certifications

submitted by plaintiffs in opposition to the motion to dismiss. Because the

Chancery court considered certifications and documents beyond the complaint,

the motion to dismiss effectively became a motion for summary judgment. R.

4:6-2. Accordingly, we view the facts in the light most favorable to plaintiffs,

the non-moving party. R. 4:46-2(c); Lederman v. Prudential Life Ins. Co. of

Am., Inc., 385 N.J. Super. 324, 337 (App Div. 2006) (citing Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)).

      Plaintiffs Constantine and Patricia Matthews own property in Wayne

Township (the Township). The Ehrmanns own property (the Property) that is


                                                                        A-1868-17T4
                                           3
adjacent to plaintiffs' property.   Both properties are in an area zoned for

residential use. Defendant Greenland leased the Property from the Ehrmanns

and operated a nursery and landscaping business, which included a landscaping

architectural office and a storage yard where landscaping and construction

trucks and equipment were stored and repaired.

      Plaintiffs purchased their property in 1992. From 1992 until 2000, the

adjacent Property was used as a residence and it had a barn and open fields. In

2000, the Ehrmanns purchased the Property and they operated a nursery on the

Property. The parties dispute the extent of the nursery and landscaping activities

conducted on the Property between 2000 and 2015. Nevertheless, the parties

agree that during that time a nursery and landscaping business was continuously

operated on the Property. It is also undisputed that the Property had a dwelling

that was used as a residence.

      In October 2004, the zoning ordinances of the Township were amended.

Wayne Township, N.J., Township Code § 134-29 (2014).               The amended

ordinance allowed agricultural uses in all zones, but with certain limitations.

Among other things, the limitations prohibited four different activities:

            (5) Storage of any landscaping or earthmoving
            equipment and/or machines, including, but not limited
            to, lawn cutting equipment, trucks, trailers, tractors,
            leaf catchers, backhoes, etc., used for any purpose other

                                                                            A-1868-17T4
                                        4
            than those used exclusively to support the agricultural
            and horticultural operations of the subject property.

            (6) The use of the premises as a contractor's and/or
            landscaper's yard.

            (7) Storage of any item, such as and including, but not
            limited to, mulch, fertilizer, topsoil or animal feed of
            any nature, other than that which is solely used for and
            needed to support the agricultural and horticultural
            activities performed on the subject property.

            (8) Any retail or wholesale sales of anything other than
            plants or animals that are or have been raised and/or
            grown on the premises.

            [Wayne Township, N.J., Township Code § 134-29.1(5)
            to (8) (2014).]

      By 2011, the Ehrmanns had leased the Property to Don Brady who

operated a wholesale and retail nursery on the Property. In February 2011,

Brady applied for a "[n]on-residential/[c]ommercial" zoning permit.        The

application described the current activity and buildings on the Property to be

"wholesale & retail nursery, contractors yard & residential dwelling." The

application also stated that those uses were "pre-existing, non-conforming

use[s]."   Both Brady and Charles Ehrmann signed the application.          The

application was stamped "APPROVED" and was signed by the Township's

zoning officer on February 18, 2011. Six days later, on February 24, 2011, the

Township's zoning officer issued a commercial zoning permit for the Property.

                                                                       A-1868-17T4
                                       5
That permit allowed "wholesale & retail nursery conditioned upon compliance

with Section 134-29 [of the Township Code]."

      Plaintiffs allege that in late 2011, the activities on the Property became

less like a nursery and more like a "contractor's and landscaping storage yard."

Then, in 2015, Greenland started to operate on the Property. According to

plaintiffs, Greenland graded and put down gravel "everywhere" on the Property.

Plaintiffs also assert that Greenland operated a landscaping and construction

yard on the Property and various trucks, heavy equipment, and machinery were

stored and operated on the Property. Greenland also stored topsoil, stone s,

mulch, gasoline, and diesel fuel on the Property.

      Plaintiffs and other neighbors complained to the Township officials about

the activities on the Property. In June 2015, the Township issued summons to

Charles Ehrmann for "failure to obtain and comply with requirements of home

occupation" in violation of Section 134-34.1 of the Township Code.

      Between August 2015 and July 2016, Greenland filed three applications

for commercial zoning permits. While those applications described the uses of

the Property in different terms, each of those applications sought permission for

Greenland to use the Property as a wholesale and retail nursery, to operate a




                                                                         A-1868-17T4
                                       6
landscaping architectural office, and to store equipment. All three of those

applications were denied by the Township's zoning officer.

      On September 16, 2016, Charles Ehrmann pled guilty to violating Section

134-34.1 of the Township Code. In connection with that plea, he was required

to either apply for a zoning permit or to bring the Property into compliance with

the zoning ordinance within thirty days.

      On the same day that Charles Ehrmann pled guilty, Greenland applied for

another "non-residential/commercial" zoning permit. Greenland described the

activities to be conducted on the Property and the buildings as a "legal, pre-

existing, nonconforming use wholesale & retail nursery, contractors yard &

residential dwelling." The application also sought "acknowledgment that an

existing building, lot or use meets ordinance requirements or is a pre -existing,

nonconforming use." After receiving a requested site plan for the Property, on

October 25, 2016, the Township zoning officer approved the application with

conditions. Specifically, the October 25, 2016 zoning permit stated:

            Legal, pre-existing, non conforming use/wholesale &
            retail nursery, contractors yard & residential
            dwelling[.] Any expansion of property will require
            Planning Board approval. Aerial photo date 10/11/14
            shows current condition on site. Prior approval date
            2/15/2011 shows that this property is pre-existing, non-
            conforming use. The current activities conducted on


                                                                         A-1868-17T4
                                       7
            premises is wholesale and retail for nursery, contractors
            yard and residential dwelling[.]

      On May 3, 2017, plaintiffs filed an action in the Chancery court seeking

to permanently enjoin Greenland and the Ehrmanns from operating a

landscaping and construction storage yard and landscape architectural office on

the Property. Plaintiffs also sought compensatory damages alleging that the use

of their property had been disturbed by the activities conducted by defendants

on the Property.

      Citing Rule 1:4-8, counsel for the Ehrmanns served a frivolous litigation

letter on plaintiffs.   When the lawsuit was not voluntarily withdrawn, the

Ehrmanns filed a motion to dismiss in lieu of an answer in accordance with Rule

4:6-2(e). The Ehrmanns argued that plaintiffs had no claim for relief because

defendants had valid zoning permits. In addition, the Ehrmanns argued that

plaintiffs were effectively seeking to challenge the 2016 zoning permit and such

a challenge was untimely.

      In August 2017, Greenland also filed a motion to dismiss for failure to

state a claim, arguing that its uses were allowed by the 2016 zoning permit.

Greenland also argued that plaintiffs lacked standing, their action was t ime-

barred, and the Township was an indispensable party to the litigation. Plaintiffs



                                                                         A-1868-17T4
                                       8
opposed both motions to dismiss and submitted certifications and other

documents in opposition to the motions.

      The Chancery court heard oral arguments in October 2017, and permitted

the parties to file supplemental certifications. On November 16, 2017, the court

granted the motions to dismiss and explained the reasons for that ruling on the

record. That same day, the court issued two orders dismissing, with prejudice,

plaintiffs' complaint against the Ehrmanns and Greenland.

      In its oral decision, the court reasoned that plaintiffs had consciously

decided not to bring an action in lieu of prerogative writs, but nonetheless were

effectively collaterally attacking the zoning permits issued in 2011 and 2016.

The court rejected plaintiffs' arguments that the 2011 permit was limited and the

2016 permit was void because that permit had not been issued by the Township's

zoning board of adjustment. The court then held that the 2016 zoning permit

resolved the issue of whether defendants' uses on the Property were lawful

because it allowed defendants to conduct the activities on the Property.

      Plaintiffs now appeal the orders dismissing their complaint.             The

Ehrmanns cross-appeal from the order denying their request for attorney's fees.

      In March 2018, while this appeal was pending, Greenland ceased

operating on and vacated the Property. Greenland then moved to dismiss the


                                                                           A-1868-17T4
                                       9
appeal as moot. Plaintiffs did not dispute that Greenland had vacated the

Property, but opposed Greenland's motion, contending that they still had a claim

for compensatory damages against Greenland. We denied the motion to dismiss

the appeal against Greenland as moot, but allowed Greenland to supplement the

record with proof that it had, in fact, vacated the Property.

                                        II.

      On appeal, plaintiffs make six arguments. They contend (1) that the 2016

zoning permit was invalid and is void; (2) the Chancery court erred in dismissing

their action as a collateral attack on the zoning permits; (3) defendants' uses on

the Property were not permitted uses and were not pre-existing, nonconforming

uses; (4) defendants are not conducting a landscaping business and retail nursery

on the Property; (5) the Township is not an indispensable party; and (6) the

Chancery court erred in granting the motion to dismiss and not properly

analyzing the motions as motions for summary judgment.

      We begin by identifying our standard of review. Defendants filed motions

to dismiss. Such motions are governed by Rule 4:6-2 and focus on the pleadings.

Accordingly, under Rule 4:6-2(e), a complaint can be dismissed if the facts

alleged in the complaint do not state a viable claim as a matter of law. The

standard for determining the adequacy of plaintiff's pleadings is "whether a


                                                                          A-1868-17T4
                                       10
cause of action is 'suggested' by the facts." Green v. Morgan Props., 215 N.J.

431, 451-52 (2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp.,

116 N.J. 739, 746 (1989)).

      Here, however, all parties submitted material outside the pleadings and

the Chancery court considered and relied on those documents and certifications.

Thus, the motions effectively became motions for summary judgment. See R.

4:6-2; R. 4:46. The standard for summary judgment is whether the moving

parties have established that there are no genuine disputes as to any material

facts, and, if so, whether the facts, viewed in the light most favorable to the non-

moving party, entitles the moving parties to judgment as a matter of law. R.

4:46-2(c); Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014);

Brill, 142 N.J. at 540.

      When reviewing orders concerning motions to dismiss for failure to state

a claim or motions for summary judgment, we use the same standard as the trial

court and review the decisions de novo. Davis, 219 N.J. at 405; Smerling v.

Harrah's Entm't, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006). Moreover, in

considering questions of law, our review is plenary. Ben Elazar v. Macrietta

Cleaners, Inc., 230 N.J. 123, 135-36 (2017).




                                                                            A-1868-17T4
                                        11
                                       A.

      The primary issues raised on this appeal concern municipal land use.

Plaintiffs contend defendants are violating the local municipal zoning ordinance

and seek to enjoin those alleged illegal activities and recover damages. In

response, defendants assert that their activities are prior, nonconforming uses

authorized by zoning permits issued in 2011 and 2016. To put those issues in

context, we will briefly review the law governing municipal land use.

      The authority to regulate land use in New Jersey rests with the Legislature,

and the Legislature, in turn, can delegate that authority to municipalities. N.J.

Const. art. IV, § 6, ¶ 2. The Legislature has delegated to municipalities the

power to regulate local land use via the Municipal Land Use Law (MLUL),

N.J.S.A. 40:55D-1 to -163. Accordingly, the MLUL is the governing law.

      Under the MLUL, the authority to regulate land use is exercised by three

separate municipal bodies: the governing body, the planning board, and the

zoning board of adjustment. Cox, Koenig, Drill & John-Basta, N.J. Zoning &

Land Use Administration, § 1-2 (2018).         Generally, the governing body

establishes ordinances, the planning board creates an overall plan for the

municipality, and the zoning board of adjustment reviews individual permit

applications and grants or denies variances from the ordinances. See Vidal v.


                                                                          A-1868-17T4
                                      12
Lisanti Foods, Inc., 292 N.J. Super. 555, 562-64 (App. Div. 1996) (describing

the separate duties of each land use body).

      The authority to enforce land use ordinances generally resides with the

municipality.   N.J.S.A. 40:55D-18. Private, "interested parties," such as a

neighboring property owner, can also enforce zoning ordinances. Ibid. Thus,

the MLUL provides in relevant part:

            In case any building or structure is erected, constructed,
            altered, repaired, converted, or maintained, or any
            building, structure or land is used in violation of this
            act or of any ordinance or other regulation made under
            authority conferred hereby, the proper local authorities
            of the municipality or an interested party, in addition to
            other remedies, may institute any appropriate action or
            proceedings to prevent such unlawful erection,
            construction, reconstruction, alteration, repair,
            conversion, maintenance or use, to restrain, correct or
            abate such violation, to prevent the occupancy of said
            building, structure or land, or to prevent any illegal act,
            conduct, business or use in or about such premises.

            [N.J.S.A. 40:55D-18.]

      The MLUL recognizes the right of a property owner or user to maintain a

pre-existing use, which has been prohibited by the subsequent enactment of a

zoning ordinance. N.J.S.A. 40:55D-68. In that regard, the MLUL states:

            Any nonconforming use or structure existing at the time
            of the passage of an ordinance may be continued upon
            the lot or in the structure so occupied and any such


                                                                          A-1868-17T4
                                       13
            structure may be restored or repaired in the event of
            partial destruction thereof.

            [N.J.S.A. 40:55D-68.]

      The MLUL also authorizes any "person interested in any land upon which

a nonconforming use or structure exists" to apply for a certification that the

nonconforming uses or structures are permitted pre-existing uses or structures.

Ibid. Applications for such a certification can be made at any time to the zoning

board of adjustment. Ibid. If an application is made within one year of the

adoption of the ordinance that rendered the use or structure nonconforming, the

application can be made to "the administrative officer." Ibid. Specifically, the

MLUL provides:

            The prospective purchaser, prospective mortgagee, or
            any other 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 structure existed before the adoption of the
            ordinance which rendered the use or structure
            nonconforming. The applicant shall have the burden of
            proof. Application pursuant hereto may be made to the
            administrative officer within one year of the adoption
            of the ordinance which rendered the use or structure
            nonconforming or at any time to the board of
            adjustment.

            [N.J.S.A. 40:55D-68.]




                                                                         A-1868-17T4
                                      14
      The exclusive method of protecting a nonconforming use by permit more

than one year from the enactment of a zoning ordinance is a certificate of

nonconforming use from the board of adjustment. Twp. of Stafford v. Stafford

Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 69 (1998); See also N.J.S.A.

40:55D-20 ("[a]ny power expressly authorized by this act to be exercised

by . . . [a] board of adjustment shall not be exercised by any other body, except

as otherwise provided in this act.") Thus, "municipal action in the land use

control field taken in direct violation of law or without legal authority is void ab

initio and has no legal efficacy." Irvin v. Twp. of Neptune, 305 N.J. Super. 652,

658 (App. Div. 1997) (quoting Hilton Acres v. Klein, 35 N.J. 570, 581 (1961)).

Consequently, if a municipality issues a permit "contrary to [an] ordinance," it

is "utterly void and subject to collateral attack." Garrou v. Teaneck Tryon Co.,

11 N.J. 294, 306 (1953).

      The burden of proving the existence of a nonconforming use lies with the

party asserting the use. N.J.S.A. 40:55D-68; Berkeley Square Ass'n, Inc. v.

Zoning Bd. of Adjustment of Trenton, 410 N.J. Super. 255, 269 (App. Div.

2009). Applications for a nonconforming use made to the zoning board of

adjustment are entitled to a hearing that generally will include notice, the

examination and cross-examination of witnesses, and determinations grounded


                                                                            A-1868-17T4
                                        15
on competent and credible proofs. Centennial Land & Dev. Co. v. Medford

Twp., 165 N.J. Super. 220, 225 (Law. Div. 1979) (citing Tomko v. Vissers, 21

N.J. 226, 238-41 (1956)).

      The MLUL does not require an owner to apply for a certificate of

nonconforming use. If, however, a nonconforming use is challenged, the owner

will be required to defend that use as a pre-existing, nonconforming use.

Normally, the first step in establishing that a use is pre-existing and

nonconforming is to apply for a certificate in accordance with N.J.S.A. 40:55D-

68. See Twp. of Stafford, 154 N.J. at 69 ("Before asking a court for relief, any

person . . . who applies more than one year after the adoption of the pertinent

ordinance must first file an . . . application with the zoning board."); see also

Borough of Bay Head v. MacFarlan, 209 N.J. Super. 134, 137 n.1 (App. Div.

1986) (noting court is not "the most appropriate forum for determining zoning

questions, such as the existence of prior nonconforming uses").

                                       B.

      With this overview of municipal land use law, we turn to the arguments

made by the parties. Plaintiffs sought to enjoin activities by the defendants on

the Property that did not conform to the applicable Township zoning ordinance.

Specifically, plaintiffs contended that the ordinance did not permit a storage


                                                                         A-1868-17T4
                                      16
yard where defendants were storing trucks, heavy equipment, and machinery.

In response, defendants relied on zoning permits, which had been issued in 2011

and 2016. The Chancery court reasoned that the zoning permits were valid and

plaintiffs were effectively seeking to collaterally attack those permits.

      Plaintiffs were not challenging the action of any municipal body. Instead,

they were seeking to enjoin what they contended were uses that were not

permitted by the zoning ordinance. It was defendants who relied on the zoning

permits issued in 2011 and 2016 as an affirmative defense. Those permits are

not valid and are void ab initio. In 2004, the Township amended its zoning

ordinance and prohibited storage yards, where trucks or equipment were stored

when those trucks and equipment were not used on site. Defendants contend

that the storage activity is a nonconforming, pre-existing use. Defendants did

not, however, obtain a certification from the Township's zoning board of

adjustment. Both the 2011 and 2016 permits were issued by the Township

zoning officer. The zoning officer did not have the authority to issue those

permits because those permits were issued more than one year following the

adoption of the 2004 zoning amendment.

      Moreover, the 2011 zoning permit did not authorize a storage yard. While

the application requested the approval of such a use, the permit itself only


                                                                            A-1868-17T4
                                       17
authorized a "wholesale & retail nursery conditioned upon compliance with

Section 134-29 [of the Township Code]." It is the permit, not the application,

which governs the permissible uses. See Motley v. Seaside Park Zoning Bd. of

Adjustment, 430 N.J. Super. 132, 151 (App. Div. 2013) (explaining a permit

holder has "no legal right to exceed what [a] zoning officer's permit

authorize[s]").

      Defendants also argue that plaintiffs' complaint should be dismissed

because it was filed more than forty-five days after the 2011 and 2016 permits

were issued. In making that argument, defendants rely on Rule 4:69-6(a). That

rule, however, applies to actions in lieu of prerogative writs. R. 4:69; N.J. Const.

art. VI, § 5, ¶ 4; see also In re LiVolsi, 85 N.J. 576, 593 (1981). As already

noted, plaintiffs here did not file an action in lieu of prerogative writs; rather,

they filed an action under section 18 of the MLUL. N.J.S.A. 40:55D-18. Thus,

the time limitation in Rule 4:69-6(a) is not applicable.

                                        III.

      Accordingly, the Chancery court erred in dismissing plaintiffs' complaint

as an invalid collateral attack on the zoning permits. We, therefore, reverse the

orders dismissing plaintiffs' complaint and remand with instructions that the

complaint be reinstated.


                                                                            A-1868-17T4
                                        18
      The existing record does not allow for an evaluation of whether

defendants' activities on the Property were nonconforming, pre-existing uses.

That issue will need to be developed on remand, including, where appropriate,

through discovery. Moreover, the current record does not allow us to evaluate

defendants' contentions that plaintiffs are estopped or barred by laches from

asserting their claims. Those are also issues that will need to be developed on

remand. We also do not address the issue of whether the Township is an

indispensable party. That issue was not addressed by the Chancery court and

we decline to address it for the first time on this appeal.

      We can, however, narrow one issue. Defendant Greenland has submitted

proofs that it has ceased all its operations and activities on the Property and has

vacated the Property. Plaintiffs do not dispute that fact. Accordingly, plaintiffs'

claim for an injunction against Greenland is moot. See Redd v. Bowman, 223

N.J. 87, 104 (2015). On remand, the Chancery court is directed to dismiss that

claim as moot. The issue of whether plaintiffs can prove compensatory damages

for the period of time when Greenland was operating on the Property is

remanded for further proceedings.

      Finally, we also dismiss as moot the cross-appeal by the Ehrmanns for

attorney's fees. Given our reversal of the dismissal of plaintiffs' complaint, the


                                                                           A-1868-17T4
                                        19
Ehrmanns are not currently prevailing parties and their claims for attorney's fees

will not mature without further proceedings.

      Reversed in part and dismissed as moot in part. The matter is remanded

and we do not retain jurisdiction.




                                                                          A-1868-17T4
                                       20
