GARY WERSINGER v. GERARDO ERCOLINO T/A NINO'S BAKERY, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6903-03T16903-03T1

GARY WERSINGER,

Plaintiff-Appellant,

v.

GERARDO ERCOLINO T/A NINO'S BAKERY,

BOROUGH OF WEST LONG BRANCH,

LORI COLE, CLERK OF THE BOROUGH OF

WEST LONG BRANCH AND THE ZONING BOARD

OF ADJUSTMENT OF THE BOROUGH OF WEST

LONG BRANCH,

Defendants-Respondents.

________________________________________________

 

Argued September 14, 2005 - Decided

Before Judges Conley and Weissbard.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

L-5511-00.

Edward F. Christopher argued the cause for

appellant.

Jennifer S. Krimko argued the cause for

respondent Gerardo Ercolino (Ansell Zaro

Grimm & Aaron, attorneys; Ms. Krimko, of

counsel and on the brief; Seamus Curley,

on the brief).

Smith & Klein, attorneys for respondent

Zoning Board of Adjustment of the Borough

of West Long Branch. (Thomas H. Klein,

filed a statement in lieu of brief).

PER CURIAM

Plaintiff Gary Wersinger appeals from an order of July 12, 2004, dismissing his Amended Complaint in Lieu of Prerogative Writs that sought to vacate a statutory default approval, N.J.S.A. 40:55D-37, in favor of defendant Gerardo Ercolino, t/a Nino's Bakery. Initially, the application of plaintiff, a neighboring property owner, to intervene in litigation instituted by the Zoning Board of Adjustment of West Long Branch (Zoning Board) against defendant was denied as untimely. Plaintiff appealed and we reversed, ordering that plaintiff's motion to intervene be granted. Upon remand, plaintiff, at the direction of the court, filed an amended complaint naming the Zoning Board, the Borough of West Long Branch and the Borough Clerk, Lori Cole, as defendants in addition to Ercolino. The defendants other than Ercolino answered the complaint but later withdrew their answers, leaving only plaintiff and defendant as parties.

After a one-day-bench trial on March 3, 2004, Judge Lawson issued a twelve-page written opinion finding that the statutory default granted to defendant was valid. Accordingly, he dismissed the complaint. The order of dismissal also rejected plaintiff's request that defendant be required to seek site plan approval for his activities.

On this appeal plaintiff argues that the judge erred in: (1) upholding the statutory default approval; (2) finding purposeful delay on the part of the Zoning Board; (3) rejecting the argument that the conduct of defendant's attorney constituted an implied consent to an extension of time for the Zoning Board to act on defendant's appeal; and (4) failing to require site plan approval for the operation of defendant's business. Having carefully reviewed plaintiff's arguments in light of the record and applicable law, we affirm substantially for the reasons set forth by Judge Lawson in his careful and articulate written decision of June 16, 2004. We add only the following brief comment.

Contrary to plaintiff's argument, it is clear that our prior opinion only remanded the matter to the Law Division to permit plaintiff to participate fully in the proceedings in that forum which challenged the validity of the statutory default approval. Our opinion did not remand the matter to the Zoning Board for plaintiff to participate in a hearing on the merits of the underlying dispute which led to defendant's appeal to the Zoning Board. If that were the case, we would have set aside the default approval, which we did not. In accordance with our remand, Judge Lawson gave plaintiff a full opportunity to participate in the proceedings before him.

 
Affirmed.

(continued)

(continued)

4

A-6903-03T1

September 30, 2005