SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1989-17T2

BOROUGH OF

HIGHLAND PARK,

Plaintiff-Respondent,

v.

MITCHELL S. CAPPELL,

Defendant-Appellant.

________________________

Argued November 15, 2018 – Decided June 28, 2019

Before Judges Simonelli, O'Connor and DeAlmeida.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Middlesex County, Docket No. C000195-16.

Elliot D. Ostrove argued the cause for appellant 

(Epstein Ostrove, LLC, attorneys; Elliot D. Ostrove, on 

the briefs).

Michael A. Cifelli argued the cause for respondent 

(Florio Kenny Raval, LLP, attorneys; Michael A. 

Cifelli, of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE 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.
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PER CURIAM

Defendant Mitchell S. Cappell appeals from a November 20, 2017 order 

that, among other things, denied his and granted plaintiff Borough of Highland 

Park's (Borough) motion for summary judgment. After examining the record 

and applicable legal principles, we reverse and remand for further proceedings.

I

A

We first address the trial court's decision to grant the Borough summary 

judgment. The salient facts, derived from the motion record and viewed in the 

light most favorable to defendant, see Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520, 523 (1995), are as follows.

In 2013, defendant owned a house in the Borough. Defendant wanted to 

renovate the house and, in June 2013, obtained a construction permit from the 

Borough's Construction Office. The permit indicates the work to be performed 

was the renovation of the second floor and to "add a level." The permit also 

states, "Drawings to follow." It is not disputed the term "drawings" refers to 

construction plans.

On November 22, 2015, almost two-and-one-half years after defendant 

commenced construction and renovation on the house, Scott Brescher, the 
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construction officer for the Borough, issued a "stop construction" order to 

defendant. A copy of this order was not included in the record, and the record 

does not otherwise reveal why this order was issued.

Because the roof was not complete, defendant sought permission from the

Borough to cover the house, in order to prevent rain and snow from entering the 

structure. On December 15, 2015, the Borough's attorney contacted defendant's 

attorney and advised that "work may continue to close the building." Defendant 

resumed work to cover the top of the house in order to protect it from the 

elements.

On January 11, 2016, the Borough issued to defendant a notice and order 

of penalty, which imposed a fine of $2500 because defendant continued to work 

on the house after the issuance of the stop construction order the previous 

November. Defendant's attorney contacted the Borough's attorney and 

explained defendant did the additional work for the purpose of closing the roof 

or covering the house.

On January 22, 2016, the Borough's attorney sent a letter to defendant's 

attorney stating, "Highland Park agrees that your client can certainly secure the 

property by installing immediately sheathing (the base plywood) on the existing 

new frame of the roof." The next day there was a snowstorm and, because the 
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roof was not complete and the covering over the house was inadequate, snow 

and ice entered the house.

After the storm, defendant continued to work on the house, but solely for 

the purpose of protecting it from the weather. On February 18, 2016, the 

Borough issued another notice and order of penalty to defendant, imposing a 

fine of $2000 because defendant failed to comply with the January 11, 2016 

notice. When defendant's agent asked Brescher why the order was issued when 

the Borough's attorney had given defendant permission to "close up the house,"

Brescher stated the permission given to defendant pertained only to the days 

preceding the snowstorm in January.

Defendant appealed the stop construction order and the two penalties the 

Borough imposed on him to the Middlesex County Construction Board of 

Appeals (Board). A copy of the Board's decision was not provided in the record, 

but it is undisputed that, because there was a question whether defendant had 

been properly served with the stop construction order, as well as the two notices 

and orders of penalty, the Board vacated all of the orders and penalties.

On August 17, 2016, the Borough issued a new stop construction order

(August 2016 order). The order stated it was entered because defendant did not 

have at the construction site or submit to the construction office stamped, sealed 
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plans for the construction he intended to perform on his property, in violation of 

N.J.A.C. 5:23-2.16(e), and also failed to provide "zoning documentation"

pertaining to the addition to the house. The order does not identify the specific 

zoning documentation defendant was required to produce. The August 2016 

order also stated the failure to comply with such order may result in the 

assessment of a penalty of up to $50 per day per violation.

In November 2016, plaintiff filed a verified complaint alleging, among 

other things, that defendant was in violation of the August 2016 order, because 

he failed to provide to the Borough plans that were drawn to scale and did not 

obtain a resolution from the Highland Park Zoning Board of Adjustment 

granting defendant a height variance.

Defendant filed an answer and verified counterclaim. He contended that, 

in reliance upon the Borough approving his permit in June 2013, he performed 

extensive work upon the house for approximately two-and-one-half years. Then, 

in November 2015, plaintiff issued the stop construction order. Thereafter, with 

the Borough's permission, defendant worked on the house for the purpose of 

protecting it from the weather yet, in January and February 2016, plaintiff 

imposed penalties upon defendant.
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In his counterclaim, defendant alleges the Borough imposed such 

penalties for the purpose of harassing him and devaluing his property. He claims 

he is entitled to damages on the grounds the Borough's actions violated 42 

U.S.C. § 1983, 42 U.S.C. § 1986, the New Jersey Civil Rights Act, N.J.S.A. 

10:6-2, and were an abuse of process.

In the fall of 2017, the Borough filed a motion and defendant a crossmotion for summary judgment. At that time, the discovery end date was April 

15, 2018. The principal relief the Borough sought was that the court grant it 

summary judgment, and that defendant be ordered to (1) remove all construction 

equipment and debris from the subject property; (2) restore the roof to its pre -

construction height; and (3) cease using the property until there had been a 

"complete remediation to address the illegal construction." In addition, the 

Borough sought the dismissal of defendant's counterclaim, arguing the condition 

about which defendant complained in such pleading was created by his violation 

of the law. 

In its motion, the Borough did not seek that plaintiff pay the $2000 penalty 

the Borough sought in the August 2016 order, or argue defendant's plans were 

insufficient because they were not stamped or sealed. Instead, the Borough

contended it was entitled to the relief it sought because defendant failed to 
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submit plans drawn to scale, in violation of N.J.A.C. 5:23-2.15(f)(1), making 

the permit issued to defendant invalid.1

In response to the Borough's motion, defendant submitted a certification 

claiming that after he submitted his plans to the Borough, Scott Luthman, the 

Borough's construction officer in 2013, told him he could "go ahead with 

construction." Luthman never complained about the construction defendant 

undertook at the house, even though Luthman was "observing" the property 

every few weeks. Defendant further certified he saw a copy of a document in 

the Construction Office's file indicating the Borough approved the plans he had 

submitted.

In reply to defendant's certification, the Borough submitted a certification 

executed by Luthman, who claimed defendant never submitted any plans "as 

required." Luthman stated that because defendant did not submit any plans as 

"required," defendant was only permitted to "begin demolition and that was 

explained to him by me." It is not clear from Luthman's certification whether 

 

1

 It is not disputed the borough lost its file pertaining to defendant's project on 

the house, and did not have a copy of the plans defendant submitted to the 

borough in 2013. However, the record indicates that, in response to discovery 

requests, defendant produced the plans he purportedly submitted to the borough 

in 2013.
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defendant failed to submit plans that were drawn to scale, as required by 

N.J.A.C. 5:23-2.15(f)(1), or whether defendant did not submit any plans at all.

The trial court granted the Borough's motion for summary judgment. The 

court determined defendant failed to submit to the Borough "plans . . . consistent 

with the [C]ode that would allow [defendant] to continue construction." The 

court essentially found the plans insufficient because they were not drawn to 

scale and that such deficiency invalidated defendant's permit, precluding him 

from engaging in further construction on the house.

On the basis of those findings, the court entered the November 20, 2017 

order granting the Borough's motion for summary judgment and denying 

defendant's motion for summary judgment. The order also directed defendant 

to fully restore the exterior of the house to its pre-construction condition, and 

remove all exterior scaffolding, construction equipment, and construction 

debris, within thirty days. Further, defendant was ordered to restore the roof to 

its pre-construction height and condition within sixty days. Defendant appeals 

from the November 20, 2017 order.

B

On appeal, defendant's contentions pertaining to the trial court granting 

the Borough's motion for summary judgment are as follows: (1) the court failed 
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to make adequate findings of fact and conclusions of law; (2) expert testimony 

is required to determine whether or not the plans he submitted to the Borough

were drawn to scale; (3) granting summary judgment was premature because the 

discovery period had not expired and defendant had not concluded conducting 

discovery; and (4) there existed genuine issues of material fact, which warranted 

the denial of summary judgment.

In considering defendant's appeal, we must adhere to well-settled 

principles applicable to summary judgment motions. The trial court must 

"consider 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 nonmoving party." Brill, 142 N.J. at 540; see also R. 4:46-2(c). The trial court 

cannot resolve contested factual issues but instead must determine whether there 

are any genuine factual disputes. Agurto v. Guhr, 381 N.J. Super. 519, 525 

(App. Div. 2005). If there are materially disputed facts, the motion for summary 

judgment should be denied. Parks v. Rogers, 176 N.J. 491, 502 (2003). We 

must observe the same standards when we review an order granting summary 

judgment, including that we view the record in a light most favorable to the nonmoving party. See W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012).
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We turn to defendant's first contention, specifically, that the quality of the 

court's findings and facts and conclusions of law was insufficient. We agree the 

court's explanation of why it found the Borough entitled to summary judgment

was limited. However, a close reading of the court's comments reveals the court 

implicitly found defendant's permit invalid because the plans defendant 

submitted were not drawn to scale, as required by N.J.A.C. 5:23-2.15(f)(1), and 

that such deficiency was tantamount to the Borough having issued an invalid 

permit to defendant. Because without a valid permit he did not have the 

authority to conduct any construction on the house, the court determined 

defendant was obligated to restore the property to the condition it was in before 

construction began. In the final analysis, we do not have a quarrel with the 

quality of the court's explanation of its finding.

Defendant next contends expert testimony is required to determine if the 

plans were drawn to scale. We disagree. The admissibility of expert testimony 

is governed by N.J.R.E. 702, which provides, "[i]f scientific, technical, or other 

specialized knowledge will assist the trier of fact to understand the evidence or 

to determine a fact in issue, a witness qualified as an expert by knowledge, skill, 

experience, training, or education may testify thereto in the form of an opinion 
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or otherwise." However, this Rule does not mean such testimony is always 

required.

Expert testimony is needed only when "a subject is so esoteric that jurors 

of common judgment and experience cannot form a valid conclusion." Hopkins 

v. Fox & Lazo Realtors, 132 N.J. 426, 450 (1993) (quoting Wyatt v. Wyatt, 217 

N.J. Super. 580, 591 (App. Div. 1987)). The need for expert testimony is

ordinarily a matter resting within the discretion of the trial judge. State v.

Griffin, 120 N.J. Super. 13, 20 (App. Div. 1972).

Here, we are satisfied the trial court did not abuse its discretion when it

determined the plans were not drawn to scale. It is obvious the plans are devoid

of any graphic bar scale, legend, or other tool to enable the reader to ascertain

the size or dimensions of the house, let alone the proposed construction or

renovations to such structure.

Defendant argues that granting the Borough summary judgment was not

only premature because discovery had not been completed, but also there exists

genuine issues of material fact that preclude the entry of summary judgment. 

We agree with both contentions.

Defendant argues the Borough was equitably estopped from taking action 

against him to thwart continued construction on his home. As noted, in response
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to the Borough's motion for summary judgment, defendant certified that, after

defendant obtained a permit and submitted his plans to the Construction Office,

Luthman told defendant he could proceed with the planned construction. Over

the next two-and-a-half years, Luthman never voiced any objection to the

ongoing construction at the house, even though he periodically visited the site. 

Luthman denies defendant's allegations, but as this is the Borough's motion for

summary judgment, we must accept as true defendant's factual assertions. See

Brill, 142 N.J. at 524.

Defendant contends he reasonably relied upon the Borough's

representation that he was permitted to proceed with his plans to renovate the

house, permission that was granted after defendant received the permit and

submitted the subject plans. Defendant claims he should not be prejudiced

because he relied upon the construction officer to his detriment. Therefore,

defendant contends, the Borough must be estopped from taking action to

invalidate the permit and thwart construction on the house, and the provisions

in the November 20, 2017 order granting plaintiff relief reversed.

"The essential principle of the doctrine of estoppel is that one may, by

voluntary conduct, be precluded from taking a course of action that would work

injustice and wrong to one who with good reason and in good faith has relied
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upon such conduct." Grasso v. Borough of Spring Lake Heights, 375 N.J. Super.

187, 194 (Law Div. 2003) (citing Middletown Twp. Policemen's Benevolent

Ass'n. Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000)) aff'd in

part, 375 N.J. Super. 41 (App. Div. 2004).

In Motley v. Borough of Seaside Park Zoning Bd. of Adjustment, 430 N.J.

Super. 132 (App. Div. 2013), we noted that:

[i]n the specific context of the issuance of building

permits, the application of estoppel requires proof of

four elements: (1) the building permit was issued in

good faith, (2) the building inspector acted "within the

ambit of [his] duty" in issuing the permit, (3) a

sufficient question of interpretation of the relevant

statutes or zoning ordinances as to "render doubtful a

charge that the . . . official acted without any reasonable

basis" for issuing the permit, and (4) there was "proper

good faith reliance" on the issuance of the permit.

[Id. at 152 (second alteration in original) (quoting Jesse

A. Howland & Sons, Inc. v. Borough of Freehold, 143

N.J. Super. 484, 489 (App. Div. 1976)).]

We recognize the doctrine of equitable estoppel is "rarely invoked against

a governmental entity." Middletown, 162 N.J. at 367 (quoting Wood v. Borough

of Wildwood Crest, 319 N.J. Super. 650, 656 (App. Div.1999)). Equitable

estoppel may only be applied against a governmental entity "where interests of

justice, morality and common fairness clearly dictate that course." Id. at 367

(quoting Gruber v. Mayor & Twp. Comm., 39 N.J. 1, 13 (1962)). Nonetheless,
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here, for the reasons stated, there are material questions of fact in dispute on the

issue whether the Borough should be estopped from disputing the validity of the

permit. In addition, defendant contended the Borough acted in bad faith when

it issued the stop construction orders and imposed penalties, which defendant

alleges was, among other things, an abuse of process.

Accordingly, it was premature for the court to grant the Borough summary

judgment and the derivative relief it requested. In addition, defendant had not

yet completed discovery and it cannot be said further discovery would have been

futile. See Driscoll Const. Co. v. State, Dept. of Transp., 371 N.J. Super. 304,

317 (App. Div. 2004) ("A trial court should not grant summary judgment when

the matter is not ripe for such consideration, such as when discovery has not yet

been completed."). Accordingly, we reverse those provisions of the November

20, 2017 order granting summary judgment to plaintiff and the other relief

entered in plaintiff's favor.

II

Defendant argues the trial court erred when it denied his motion for

summary judgment. It is not clear from the record what defendant argued in

support of his motion, thwarting our review of the merits of his position. 

However, contrary to Rule 1:7-4, the trial court failed to provide any reason for
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denying defendant's motion. Therefore, we vacate the provision in the

November 20, 2017 order denying defendant's motion for summary judgment. 

On remand, the court shall provide to the parties its reasons for denying

defendant's motion for summary judgment, within sixty days.

Reversed and remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.