PER CURIAM
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Haas. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-71-15. Cynthia M. Hwang, attorney for appellants. DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum, P.C., attorneys for respondent (Jeffrey B. Lehrer and Susan F. Bateman, on the brief). PER CURIAM
Plaintiffs New Jersey Chinese Community Center, Inc. (the Center) and Jimmy Hwang appeal from the May 29, 2015 Law Division order denying their motion for summary judgment, and granting defendant Warren Township Construction Office's cross-motion for summary judgment. We affirm.
We derive the following facts from the motion record. On June 15, 2009, the Warren Township Zoning Board of Adjustment (the Zoning Board) granted Hwang and his wife bulk variances permitting them to construct a single-family residence on a vacant piece of property. A "single-family dwelling" is defined in the Township's zoning ordinance as "[a] detached building designed for and occupied exclusively by one (1) family."
Part of Hwang's property is in the R-20(v) zone district, which permits single-family dwellings, farming, and nursing homes and assisted living residential health care facilities. The rest of the property is in the R-65 zone district, where single-family dwellings, farming, volunteer fire company stations, and public and private golf courses are permitted uses.
In January 2011, Hwang submitted construction plans to the Township's Fire Subcode Official, together with an affidavit stating that he was "constructing . . . a single-family house to be used exclusively as [his] private residence." At some point, a house was constructed on the property.
Hwang is the principal of the Elite Preparatory Academy, a school operated by the Center. In September 2014, Hwang transferred the property and the house to the Center.
In October 2014, Hwang applied to defendant for a temporary certificate of occupancy for the property, even though he no longer owned it. On October 23, 2014, plaintiffs' attorney sent a letter to the Township's Tax Assessor's Office seeking "to clarify the use of the property" previously owned by Hwang. The attorney stated that
[t]he property is used and occupied by students who attend the Elite Preparatory Academy, a private school owned and operated by the . . . Center and house parents whose responsibilities are to monitor students, enforce rules and policies of the school, and organize students' schedules and activities. Students use the house every day for meals; although classes are not regularly held at the building, it is also used for meeting, counseling, studying, and social activities when needed. These students are from China and have no parents or close family in the [United States], the house is a necessary accommodation for students going to the school.
Because the house was now being used by the Center for educational purposes, essentially as a dormitory for students attending the school, the attorney asked the Tax Assessor's Office to grant the Center a tax exemption for the property.
N.J.S.A. 54:4-3.6 states that "buildings actually used for colleges, school, academies[,] or seminaries" are "exempt from taxation[.]" --------
The Township Zoning Officer inspected the house and found there were a number of bedrooms, each with its own bathroom. The Zoning Officer also learned from the Center's website that each student would be charged $14,000 for room and board for living in the house.
On the basis of his investigation, and plaintiffs' attorney's representation that the house was now being used as a dormitory for students, the Zoning Officer sent a letter to the attorney on November 24, 2014, denying Hwang and the Center's request for a certificate of occupancy. The Zoning Officer explained that the Center's proposed use of the property was "entirely inconsistent with the use granted by the Zoning Board . . . and the plans submitted in connection therewith." The Zoning Officer also advised the attorney that "a [c]ertificate of [o]ccupancy will not be issued at this time since, if [Hwang] intends to use the property for a use other than a single[-]family dwelling, he must secure a change of use from the Zoning Board . . . ."
On December 1, 2014, plaintiffs' attorney sent a letter to the Zoning Officer stating that Hwang now intended to use the house as a single-family home and occupy it "as his primary residence." After admitting in her October 23 letter that the property was already being used to house students, the attorney claimed that "[t]he property is now left vacant . . . ." Notably, the Center refused to withdraw its application for a tax exemption for the property on the ground that it was being used as a student dormitory. On December 5, 2014, the Zoning Officer again advised the attorney that a certificate of occupancy would not be issued because a dormitory was not a permitted use in the zoning districts in which the property was located.
On December 11, 2014, the attorney sent another letter to the Zoning Officer. In this letter, she again claimed that Hwang intended to live in the home with his family. At the same time, however, the attorney stated that "[s]ome of [Hwang's] friends whose child[ren] attend his school may ask him to take care of their kids or ask to stay with him when they study here in the" United States. In other words, the property was still going to be used to house students enrolled at the Elite Preparatory Academy. In addition, the Center continued to seek a tax exemption for the property, asserting it would be used for school purposes.
On January 9, 2015, the Zoning Board's attorney advised plaintiffs of the proper procedure for filing an appeal to the Zoning Board from the Zoning Officer's decision. Instead of following this procedure, however, plaintiffs filed a verified complaint in lieu of prerogative writs in the Law Division, seeking an order requiring the Township to issue a certificate of occupancy. On March 6, 2015, the trial judge denied plaintiffs' motion for injunctive relief.
The parties then filed cross-motions for summary judgment. Following oral argument, the judge rendered a thorough written opinion on May 29, 2015, denying plaintiffs' motion and finding they were not entitled to a certificate of occupancy.
The judge explained that a "[c]ertificate of [o]ccupancy" was defined in the Township's zoning ordinance as "[a] certificate issued by the Construction Code Official of Warren Township which permits the use of property in accordance with approved plans and specifications and all applicable governmental laws, ordinances[,] and regulations." Similarly, the judge noted that N.J.A.C. 5:23-2.24(a)(1) states that a "[c]ertificate of [o]ccupancy shall be conditioned upon" the fact "[t]hat the completed project meets the conditions of the construction permit, and all 'prior approvals . . . .'" As defined in N.J.A.C. 5:23-1.4, the term "prior approvals" includes zoning. The judge also observed that the Supreme Court has held that "[a] certificate of occupancy is a tangible manifestation that property has been improved and is being used in conformity to applicable municipal ordinances." Dresner v. Carrara, 69 N.J. 237, 242 (1976).
Applying these principles, the judge concluded that plaintiffs were not entitled to a certificate of occupancy because the property did not conform to applicable municipal ordinances, including the Township zoning code. The judge found that the property was located in two zoning districts which did not allow dormitories for students as a permitted use. In addition, the property did not meet the conditions of the construction permit because the Center was going to use it to house students rather than as a single-family dwelling.
The judge rejected the Center's contention that it would use the building as a single-family home for Hwang. The judge found that Hwang transferred the property to the Center, which then applied for a tax exemption because the property was going to be used for student housing. The Center refused to withdraw its application for a tax exemption, which was inconsistent with its claim that the building would be used as a single-family home. In addition, although the Center's attorney claimed Hwang would now live in the home, she admitted that he would also have students living with him. The Center's website stated that students would be charged $14,00 0 a year for room and board. Under these circumstances, the judge found that plaintiffs' allegation that the building would be used as a single-family dwelling, rather than as a student dormitory, was "blatantly disingenuous."
Finally, the judge noted that plaintiffs failed to exhaust their available administrative remedies before filing their action in lieu of prerogative writs as required by Rule 4:69-5. First, as the Zoning Board's attorney advised plaintiffs' attorney in January 2015, plaintiffs had the right to appeal the Zoning Officer's denial of the certificate of occupancy to the Zoning Board. In the alternative, the judge found that plaintiffs could have sought a use variance to permit them to use the house for a student dormitory. However, plaintiffs failed to pursue either remedy. Thus, the judge concluded that plaintiffs' complaint was barred by Rule 4:69-5. This appeal followed.
On appeal, plaintiffs raise the same arguments that the judge rejected in her comprehensive written opinion granting defendant's motion for summary judgment. Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015) (citing Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014)). "Summary judgment must be granted if 'the pleadings, depositions, answers to interrogatories[,] and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
Thus, we consider, as the trial judge did, whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007) (citing Prudential Prop. & Cas. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)), certif. denied, 195 N.J. 419 (2008). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
We have considered plaintiffs' contentions in light of the record and these applicable legal principles. We are satisfied that the trial judge thoroughly and correctly addressed the issues in her written opinion, and properly granted summary judgment to defendant. Plaintiffs' appellate arguments are without sufficient merit to warrant further discussion here. R. 2:11-3(e)(1)(E). Therefore, we affirm substantially for the reasons expressed in the judge's comprehensive May 29, 2015 decision.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION