ROBERT M. LEO, et al. v. PLANNING BOARD OF THE TOWNSHIP OF UNION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0116-05T20116-05T2

ROBERT M. LEO, DOROTHY L.

LEO, ROBERT M. LEO, JR.,

PAUL J. LEO, and KATHLEEN

M. LEO,

Plaintiffs-Respondents,

v.

PLANNING BOARD OF THE TOWNSHIP

OF UNION,

Defendant-Appellant.

___________________________________________

 

Submitted July 31, 2006 - Decided August 14, 2006

Before Judges C.S. Fisher and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. UNN-L-0943-05.

Rogut McCarthy Troy, attorneys for appellant (Christopher H. Frick, on the brief).

Sauer & Fitzpatrick, attorneys for respon-dent (Katherine A. Fitzpatrick, on the brief).

PER CURIAM

Plaintiffs are the owners of property in Union upon which sits a pre-Revolutionary War structure known as the "Miller House." In 2003, plaintiffs received minor subdivision approval and variance relief (the 2003 resolution), upon the stipulated condition that the structure would be relocated and restored. In early 2005, plaintiffs sought relief from the conditions previously imposed, claiming that the structure was beyond restoration and could not be moved, but only demolished. The board denied that request on February 24, 2005 (the 2005 resolution), causing plaintiffs to file this action in lieu of prerogative writs.

The trial judge, on cross-motions, concluded that the board's refusal to relieve plaintiffs of the conditions of the 2003 resolution and its refusal to restore the matter to the status quo ante was arbitrary and capricious. The planning board appeals that judgment. We affirm.

In examining the reasonableness of the board's 2005 resolution, which memorialized the board's refusal to release plaintiffs from the conditions imposed in the 2003 resolution, the judge recognized that the evidence before the board was undisputed that the conditions contained in the 2003 resolution could no longer be practically, or even possibly, fulfilled. Further examination of the structure, according to one of plaintiffs' experts, revealed that the house is in "total disrepair with widespread rotting," which has "attacked the most vital members," that the house "is not worthy of repair or rehabilitation because of the . . . advanced state of decay clearly visible throughout," that the frame of the house "stands, literally, at the brink of collapse due to the rotting of the most important structural members," that "without lifting a hammer the frame stands ready to die a natural death and rough handling in the making of repairs and rehabbing efforts could produce a violent reaction and sudden and total collapse." Another expert testified for plaintiffs that "the structure is on the verge of collapse" and that "[a]ny movement of this house in its present condition will cause it to collapse like a deck of cards."

Considering this undisputed evidence, the trial judge correctly concluded that the board's 2005 resolution, which set forth its refusal to rescind its 2003 resolution, was arbitrary and capricious because the conditions set forth in the 2003 resolution could not be met. The trial judge's orders of July 22, 2005, in essence, vacated both the 2003 and 2005 resolutions by sensibly permitting plaintiffs to execute and record a deed vacating subdivision and lot depth variances granted in the 2003 resolution. These orders, thus, correctly restored the property to the status that existed prior to the application for the 2003 resolution in light of the existing circumstances that made it impracticable, if not impossible, for plaintiffs to comply with the conditions of the 2003 resolution.

We lastly observe that both parties argued that procedural defects limited or precluded either the trial court's or our ability to grant relief. The board argues that plaintiffs' complaint was time-barred insofar as it attacked the 2003 resolution; plaintiffs argue that the board's appeal to this court was untimely and has been rendered moot. We find these arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We mention only that the board's argument that plaintiffs' complaint was untimely misapprehends that plaintiffs' complaint sought the vacation of the 2005 resolution and, as to that resolution, was certainly timely. It may be true that the judge also took action to vacate the terms of the 2003 resolution, but that was necessary to afford plaintiffs complete or meaningful relief from the 2005 resolution. In these particular circumstances, it was not erroneous for the trial judge to take that action even though the time within which plaintiffs could attack the 2003 resolution had expired. The fact of the matter is that plaintiffs were not aggrieved by the 2003 resolution until such time as the board refused to grant relief from it by way of its 2005 resolution and, until the 2005 resolution was adopted, plaintiffs had no need to seek relief in the superior court. In short, plaintiffs' claim did not accrue until the adoption of the 2005 resolution.

 
Affirmed.

(continued)

(continued)

5

A-0116-05T2

August 14, 2006