A neighbor’s legal action against celebrity surgeon Mehmet Oz over view-blocking cedar trees was rightfully dismissed as premature, a state appeals court held Monday.
The neighbor, attorney Angelo Bisceglie Jr. of Cliffside Park, did not exhaust his administrative remedies before filing his action in lieu of prerogative writs, the Appellate Division said in Bisceglie v. Oz, A-3484-11.
It pointed to Rule 4:69-5, under which such actions are not permitted where there is an unpursued right of review before an administrative agency.
Oz, a cardiothoracic surgeon, author and television personality, submitted a landscape plan, which included the trees as well as a pool and guest house, to the Cliffside Park Zoning Board of Adjustment, and received approval in Sept. 13, 2010.
Instead of bringing an appeal to the board, Bisceglie filed his complaint, on Nov. 16, 2010. He claimed that the three, 30-foot trees, which partly obscured his views of the Hudson River and New York City, constituted a fence and violated the local fence ordinance.
Bergen County Superior Court Judge Menelaos Toskos dismissed the suit in July 2011 for failure to exhaust administrative remedies.
Bisceglie claimed before the Appellate Division that there was no need to appeal approval of Oz’s plan to the board because interpretation of a zoning ordinance is a legal issue.
He cited Supermarkets Oil Co. v. Zollinger, 126 N.J. Super. 505 (App. Div. 1974).
There, a gas station owner filed an action in lieu of prerogative writs after a building inspector revoked his permit to build a car wash on the property. The trial court ordered issuance of the permit, finding the operation an allowed use because it fit the ordinance’s “public garage” definition.
On appeal, the Supermarkets Oil defendants said the plaintiff had not exhausted administrative remedies.
The appeals court rejected that argument, finding that where a zoning ordinance interpretation is called for, the issue is particularly suited to courts.The Supermarkets Oil panel said the plaintiff need not resort to administrative remedies.
Bisceglie contended that the Supermarkets Oil holding contradicts Toskos’ determination that he was required to appeal to the board. Bisceglie also claimed that failure to exhaust administrative remedies is inapplicable where the issue relates to an ordinance interpretation.
But Judges Susan Reisner and Richard Hoffman said Bisceglie mischaracterized the Supermarkets Oil holding.
It merely affirmed that the trial court was within its discretion to dismiss for failure to exhaust administrative remedies, they said. Where a case relates to an ordinance’s interpretation, the judge has discretion to determine whether the case should be dismissed for that failure, the panel said.
Reisner and Hoffman cited 21st Century Amusements Inc. v. D’Allesando, 257 N.J. Super. 320 (App. Div. 1992). In that case, the plaintiff sought a certificate of occupancy for an amusement facility but the city’s construction official said the proposed use was barred under the zoning ordinance.
Without appealing that determination to the zoning board, the plaintiff filed an action in lieu of prerogative writs.
The trial court directed that a certificate be issued. But the appeals court reversed, citing failure to exhaust administrative remedies and finding that the “question of law” exception did not relieve the plaintiff of this obligation.
The Bisceglie case is more comparable to 21st Century because it involves both interpretation and application of the ordinance, Reisner and Hoffman said.
In Bisceglie, the judges said, the court must decide whether a row of trees constitutes a fence. The Supreme Court held in Bubis v. Kassin, 184 N.J.612 (2005), that a row may constitute a fence but that does not mean all rows of trees are fences, the panel said.
In determining whether Oz’s trees constitute a fence, the trees’ size, positioning and use, as well as the reason for planting, must be considered, the panel said.
The court also said Bisceglie’s suit violates N.J.S.A. 40:55D-72a, which requires zoning board appeals to be brought within 20 days of the date an interested party knows or should know of the action, the court said. Oz gave Bisceglie a copy of the plan on Aug. 13, 2010, and Bisceglie sued on Nov. 16, 2010.
The attorney for Oz and his wife Lisa, Dennis Harraka of Ferrara, Turitz, Harraka & Goldberg in Hackensack, says Bisceglie “had adequate notice of what the Ozzes were going to do well before he filed anything.”
Bisceglie is with Bisceglie & DeMarco in Woodland Park. His brief was submitted by Mark Silberblatt of his firm. Cliffside Park’s lawyer was Christos Ditkas of Ditkas, Schandler & Gillen in Cliffside Park. Bisceglie, Silberblatt and Ditkas did not return calls.