MICHAEL J. KING v. HARMONY TOWNSHIP LAND USE BOARD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3238-09T4

MICHAEL J. KING, COORDINATOR

OF REALSMART, THE LEAGUE OF

REAL SMART GROWTH,

Plaintiff-Appellant,

v.

HARMONY TOWNSHIP LAND USE

BOARD and NEW JERSEY DEPARTMENT

OF ENVIRONMENTAL PROTECTION,

Defendants,

and

SIGNATURE ESTATES AT HARMONY,

L.L.C.,

Defendant-Respondent.

_________________________________________________

May 3, 2011

Submitted December 14, 2010 - Decided

Before Judges Wefing, Payne and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Warren County, Docket No.

L-119-08.

Daniel E. Somers, attorney for appellant.

Norris, McLaughlin & Marcus, P.A.,

attorneys for respondent (Richard J.

Schachter, of counsel; Mr. Schachter

and Erin T. Welsh, on the brief).

PER CURIAM

Plaintiff, Michael J. King, who states that he serves as Coordinator of REALsmart, The League of Real Smart Growth, a committee of the non-profit Phillipsburg, New Jersey, Riverview Organization, appeals the dismissal with prejudice of his action in lieu of prerogative writs as the result of his failure to certify that all necessary transcripts of local agency proceedings in the cause had been ordered, as required by Rule 4:69-4. On appeal, plaintiff argues that the judge managing the matter erred in declining to vacate the order of dismissal upon reconsideration when presented with evidence that the transcripts had then been ordered and in declining to vacate the order pursuant to Rule 4:50-1(a) or (f). We affirm.

I.

The matter arises from an application to the Harmony Township Land Use Board by Signature Estates at Harmony, L.L.C. for preliminary and final site plan approval of a development consisting of twenty-one houses on property consisting of 73.76 acres. The original application for preliminary site plan approval was made in April or May 2004 and granted on April 5, 2006. A May 2007 application for final site plan approval was granted on October 3, 2007. Approximately twelve hearings were conducted on the applications, none of which were attended by plaintiff or members of his organization.

However, on February 19, 2008, plaintiff, appearing pro se, filed an action in lieu of prerogative writs against the Harmony Township Land Use Board (Board) and the New Jersey Department of Environmental Protection (DEP) in which he alleged that the Board and the DEP failed to afford legally-required protections to the land constituting the development, at least part of which was situated in a Special Water Resource Protection Area, and had otherwise failed to comply with environmental regulations. As relief, plaintiff sought suspension of the Board's approval until a decision was reached in a "soon-to-be-filed" suit pursuant to the New Jersey Environmental Rights Act (ERA), N.J.S.A. 2A:35A-1 to -14, and a judgment vacating the approval once a favorable decision in the ERA suit was issued. Plaintiff also asked "for relief from the court for the general requirement of transcription of Land Use Board meeting record pending the ERA action."

An amended complaint, naming as an additional defendant the developer, Signature Estates at Harmony, L.L.C., was filed, pro se, on April 15, 2008. That amended complaint, like the initial one, made reference to a "soon-to-be-filed ERA suit," and it again asked "for relief from the court for the general requirement of transcription of Land Use Board meeting record pending the ERA action." The amended complaint reflects the fact that construction at the site had commenced.

Signature Estates filed an answer to plaintiff's complaint and a counterclaim on June 10, 2008. The record on appeal does not disclose whether the ERA suit was ever filed.

The present matter was quiescent until September 2009. In the meantime, however, on December 5, 2008, the managing judge had dismissed another action filed by plaintiff against the Board, the DEP and individual property owners, Kenneth and Patricia Beers, as the result of his failure to comply with Rule 4:69-4, and an appeal from that order had been filed. See King v. Harmony Twp. Land Use Board, No. A-2478-08(App. Div. July 27, 2010) (slip op. at 2) (stating date of trial court's order).1

On September 9, 2009, the managing judge held a telephonic case management conference in the present matter, in which counsel for the Board, which had not answered the complaint, counsel for the Signature Estates and newly-retained counsel for plaintiff2 participated. In an order issued following the conference, plaintiff's action against the DEP was dismissed as the result of failure to serve it with process, plaintiff was directed to file a second amended complaint on or before September 30, 2009, the Board and Signature Estates were directed to answer the complaint within ten days, and the Board was ordered to provide proof of publication of the resolution finally approving Signature Estates' site plan and the date of that publication. Although the judge's order did not specify that plaintiff was required to comply with Rule 4:69-4 when filing his second amended complaint, the parties evidently understood that to be the case. According to the judge, at the conference, plaintiff's counsel indicated that he might file a motion to be relieved of the obligation to file transcripts. However, the judge stated that he was not "optimistic about it being granted," since a land use approval could not be attacked without reference to the expert's reports and testimony that provided the foundation for the Board's decision.

On October 1, 2009, counsel for plaintiff sought an extension to October 2 to file and serve plaintiff's second amended complaint, but on October 6, counsel informed the judge and the parties that a second amended complaint would not be filed. In an October 29 letter to the judge, counsel stated that he had been discharged and that plaintiff was seeking replacement counsel.

On October 29, 2009, the judge, sua sponte, dismissed plaintiff's complaint with prejudice for failure to comply with Rule 4:69-4.

Approximately two months after the judge's October 29, 2009 order, on December 17, 2009, plaintiff, represented by new counsel, sought reconsideration and reinstatement of the complaint. In his motion, plaintiff laid the blame for not filing a second amended complaint and not obtaining the necessary transcripts on prior counsel who, plaintiff claimed, had been repeatedly reminded that he should do so. Nonetheless, plaintiff also maintained the position that such transcripts would be of little use because, in other matters, the audio equipment used by the Board had been found to be of poor quality, and because the transcripts were not essential to establish that the Board did nothing to protect the Special Water Resource Protection Areas on the tract in question and the DEP acted improperly in disqualifying the areas from protection. Despite his quality concerns, plaintiff certified that the transcripts had been ordered in December 2009.

Following argument on January 29, 2010, the judge denied plaintiff's motion, noting that even if the second amended complaint had been timely filed, it would still have been noncompliant because, at that time, transcripts still had not been ordered. However, because the Board had never published its resolution finally approving the site plan, the judge observed that plaintiff's cause of action might not have accrued under Rule 4:69-6(b)(3). He left open the possibility that plaintiff could file a new action once the resolution was published that might survive a motion to dismiss. Publication took place on February 10, 2010. However, a new action was not instituted.

By letter dated January 29, 2010, Signature Estates dismissed its counterclaim against plaintiff, thereby finally concluding the action.

II.

On appeal, plaintiff contends that the managing judge abused his discretion in denying plaintiff's motion for reconsideration pursuant to Rule 4:49-2. We have held in this context:

Reconsideration is a matter to be exercised in the trial court's sound discretion. Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250- 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988). "A litigant should not seek reconsideration merely because of dissatisfaction with a decision of the [c]ourt." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). "Reconsideration should be utilized only for those cases . . . that fall within that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid.

[Capital Fin. Co. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008).]

"It is only for good cause shown and in the service of the ultimate goal of substantial justice that the court's discretion should be exercised." Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 253-54 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988).

In a case such as this, in which the order dismissing plaintiff's complaint was not a final judgment as the result of the pendency of Signature Estates' counterclaim, reliance on Rule 4:50-1 is not appropriate, since that rule is reserved for final judgments or orders. Id. at 257-64.

On appeal, plaintiff claims that, in connection with his motion for reconsideration, he offered "newly discovered" evidence that transcripts had been ordered, thereby satisfying the strictures of Rule 4:49-2. However, a motion for reconsideration cannot serve as a vehicle to introduce new evidence so as to cure an inadequacy in the motion record. Capital Fin., supra, 398 N.J. Super. at 310; Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). We do not find it an abuse of discretion to fail to give controlling effect to plaintiff's evidence of an after-the-fact cure.

Plaintiff also relies on our unreported decision in King, supra, in which we vacated an earlier order of dismissal with prejudice by the same judge premised upon noncompliance with Rule 4:69-4. In doing so, we noted that the dismissal was not based upon plaintiff's noncompliance with the substance of the requirement, but upon his failure to provide the proper certification that transcripts had been ordered. We found, in that circumstance, that the court rule had been too rigidly applied. King, supra, slip op. at 4. We further noted that plaintiff's inability to obtain complete transcripts was the result of the poor quality of the tapes a matter that did not justify dismissal of the complaint. Ibid. Additionally, we observed that the delay in ordering transcripts resulted from plaintiff's efforts to explore less costly alternatives to obtaining the entire record, and if the managing judge had held the case management conference that he was required to conduct pursuant to Rule 4:69-4, "the necessity of the transcripts and consideration of plaintiff's alternatives could have been addressed, and, presumably, much of the delay in obtaining the transcripts could have been avoided." Id. at 5.

In contrast, in the present case, plaintiff sought in his complaint and amended complaint to be relieved of the obligation to obtain transcripts, but he has presented no evidence that he moved before the managing judge for relief of any sort. Nine months after the King case had been dismissed on Rule 4:69-4 grounds, a case management conference was held in the present matter, and at that time, plaintiff's counsel was reminded of the need to obtain the transcripts or to move for relief. He did neither. Following the withdrawal of counsel on October 6, 2009, plaintiff did not act to timely cure his default, although he was undoubtedly aware that no deposit had been paid for transcript preparation.

As a general proposition, we are reluctant, as a matter of substantial justice, to affirm a dismissal of an action on technical grounds, and especially when the dismissal was granted sua sponte and with prejudice. However, in the present matter, we find that the equities weigh against the plaintiff. First of all, in his initial complaint, plaintiff failed to name Signature Estates, and as a result, improvements on the property were commenced prior to the time that it had notice of plaintiff's action. Additionally, as we understand the facts of the matter, Signature Estates had obtained all necessary environmental permits from the DEP and the county to develop its property in accordance with the proposed site plan. Plaintiff's position is that, in granting the permits, the DEP wrongly waived environmental regulations applicable to the property as the result of its status as a Special Water Resource Protection Area. Yet, plaintiff failed to serve the DEP with his complaint, resulting in its dismissal from the litigation. Additionally, plaintiff appears to have permitted the remainder of his action to lie fallow for a substantial period of time prior to the September 2009 court conference.

Further, in his complaint, plaintiff alleged that he planned to file an action against the DEP pursuant to the ERA. As relief in the present matter, he sought suspension of the Board's final site plan approval until the ERA action was concluded, and then reversal of that approval when the ERA action was resolved in his favor. Yet, plaintiff has offered no evidence that the ERA action was ever filed.

When we look at plaintiff's nineteen-month failure to obtain transcripts of the proceedings before the Board in the context of this other evidence of unreasonable delay and inaction, we are unable to conclude that substantial justice warrants a reversal of the managing judge's action, however unjustified it might otherwise have been found to be.

Accordingly, we affirm.

1 The record reflects that plaintiff has filed either four or five suits challenging actions of the Board on environmental grounds.

2 It appears that counsel for plaintiff was also representing him in connection with plaintiff's action against the Board, the DEP and the Beers.