ANGELO TORRES v. LATIN AMERICAN COUNCIL OF PENTECOSTAL CHURCH OF GOD INC

NOT FOR PUBLICATION WITHOUT THE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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ANGELO TORRES,

Plaintiff-Appellant,

v.

LATIN AMERICAN COUNCIL OF

PENTECOSTAL CHURCH OF GOD, INC.,

and THE CITY OF CAMDEN,

Defendants-Respondents.

_______________________________________

October 17, 2016

Submitted September 13, 2016 Decided

Before Judges Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, Docket No. C-0111-14.

Charles Michael Izzo, attorney for appellant.

Garces, Grabler & LeBrocq, P.C., attorneys for respondent Latin American Council of Pentecostal Church of God, Inc. (Arlindo B. Araujo, on the brief).

Marc A. Riondino, City Attorney, attorney for respondent The City of Camden (Timothy J. Galanaugh and Sadyhe T. Bradley, Assistant City Attorneys, on the brief).

PER CURIAM

This appeal arises from the dismissal of a complaint based on a determination that plaintiff lacked standing. Plaintiff also appeals the denial of his motion for reconsideration of the order dismissing his complaint. Because we are satisfied the court erred in finding plaintiff lacked standing, we reverse.

I.

In March 2011, defendant Latin American Council of Pentecostal Church of God, Inc. (Church) purchased real property on North 5th Street in Camden (Lot 11). The property is adjacent to real property located on North 5th Street (Lot 2) that was owned at the time by Carmen Martinez.

In 2011, defendant City of Camden (Camden) also owned real property located on North 5th Street (Lot 3). Camden adopted an ordinance authorizing the sale of Lot 3 in May 2011.

Camden published a notice soliciting bids for the sale of the property. The notice for bids stated that the property "SHALL BE SOLD SUBJECT TO THE CONDITION THE LAND BE USED AS A SIDE OR REAR YARD IN CONJUCTION WITH AN EXISTING AND CONTIGUOUS RESIDENCE." The notice further provided that "if the grantee fail[ed] to satisfy [the] conditions . . . the premises shall revert to . . . Camden free and clear of any and all claims, encumbrances or other liens."

The Church submitted the highest bid for Lot 3 and in October 2011, Camden conveyed title to the property to the Church. The deed included a restriction stating that the Church, as grantee, "covenants and agrees to the condition the land be used as a side or rear yard in conjunction with an existing and contiguous residence."

In January 2014, plaintiff purchased Lot 2 from Martinez. He subsequently filed a complaint challenging Camden's 2011 conveyance of Lot 3 to the Church. Plaintiff alleged the Church did not own property contiguous to Lot 3 and the conveyance was ultra vires because it violated the restriction on the use of the property plaintiff claimed was imposed by the ordinance,2 the notice for bids, and the deed (count one).

Plaintiff also alleged Camden and the Church conspired to misrepresent the Church's qualification as a contiguous residential property owner in order to "pre-determine the auction" process Camden used to sell the property (count two). Plaintiff further alleged he was a third-party beneficiary of the deed restriction and Camden had failed to enforce it (count three).

Camden filed a motion to dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Rule 4:6-2(e), and the Church joined in the motion. In an oral opinion, the court found plaintiff lacked standing to assert the claims in the complaint because he did not own property on North 5th Street at the time of Camden's 2011 conveyance to the Church. The court entered an April 1, 2015 order granting defendant's motion to dismiss the complaint.

Plaintiff filed a motion for reconsideration that the court denied. The court, however, also determined there was an additional basis supporting its dismissal of the complaint. The court found that Lots 1 and 3 were contiguous and concluded that Camden's 2011 conveyance of Lot 3 to the Church did not violate the restriction plaintiff claimed was imposed by the ordinance, notice for bids, and deed. The court entered a May 8, 2015 order denying plaintiff's motion for reconsideration. This appeal followed.

II.

In our review of a dismissal under Rule 4:6-2(e), "we employ the same standard as that applied by the trial court." J-M Mfg. v. Phillips & Cohen, 443 N.J. Super. 447, 453 (App. Div. 2015) (citing Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005)), certif. denied, 224 N.J. 527 (2016). "We 'assume the facts as asserted by plaintiff are true[,]' and we give the plaintiff 'the benefit of all inferences that may be drawn[.]'" Id. at 453 (quoting Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005)). We limit our review to the "legal sufficiency of the facts alleged in the complaint." Ibid. (quoting Donato, supra, 374 N.J. Super. at 482). "Dismissal is appropriate only if 'the complaint states no basis for relief and discovery would not provide one.'" Ibid. (quoting Banco Popular, supra, 184 N.J. at 166).

Here, the court granted defendants' motion to dismiss the complaint based on its finding that plaintiff lacked standing. "The issue of standing presents a legal question subject to our de novo review." Courier-Post v. Cty. of Camden, 413 N.J. Super. 372, 381 (App. Div. 2010) (citing In re Project Authorization Under N.J. Register of Historic Places Act, 408 N.J. Super. 540, 555 (App. Div. 2009), certif. denied, 201 N.J. 154 (2010)).

Plaintiff contends the court erred by finding that he lacked standing to assert the claims alleged in the complaint. Defendants respond that the court correctly determined plaintiff lacked standing because he did not own property on North 5th Street at the time Camden conveyed its property to the Church.

"Our courts have traditionally taken a generous view of standing in most contexts." In re New Jersey State Contract, 422 N.J. Super. 275, 289 (App. Div. 2011) (citing Crescent Park Tenants Ass'n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107-12 (1971); N.J. Builders Ass'n v. Bernards Twp., 219 N.J. Super. 539 (App. Div. 1986), aff'd, 108 N.J. 223 (1987)). "[W]hen it comes to challenging governmental actions" we employ "a broad definition of standing" and "are not confined by the 'case or controversy' requirement under Article III, 2 of the United States Constitution." Loigman v. Twp. of Middletown, 297 N.J. Super. 287, 294-95 (App. Div. 1997) (citing Salorio v. Glaser, 82 N.J. 482, 490, cert. denied, 449 U.S. 804, 101 S. Ct. 49, 66 L. Ed. 2d 7 (1980)).

Taxpayers generally have standing to bring claims that a public entity has engaged in "illegalities and ultra vires acts." Id. at 295-96. They have "a broad right . . . to seek review of local legislative action without proof of unique financial detriment to them." Kozesnik v. Twp. of Montgomery, 24 N.J. 154, 177 (1957). We have found that a taxpayer has standing to "challenge the award of a contract to a successful bidder," In re New Jersey State Contract, supra, 422 N.J. Super. at 289 (citing Jen Elec., Inc. v. Cty. of Essex, 197 N.J. 627 (2009)), and "governmental action involv[ing] claims of illegal bidding procedures." Loigman, supra, 297 N.J. Super. at 296 (citing L. Pucillo & Sons, Inc. v. Twp. of Belleville, 249 N.J. Super. 536 (App. Div.), certif. denied, 127 N.J. 551 (1991)).

Plaintiff was a taxpayer in Camden at the time he filed his complaint and his asserted causes of action are founded upon allegations that Camden's conveyance of the property was ultra vires. We are therefore satisfied plaintiff has standing based upon his status as a taxpayer. Kozesnik, supra, 24 N.J. at 177; Loigman, supra, 297 N.J. Super. at 294-95.

We reject defendants' contention and the motion court's conclusion that plaintiff lacked standing because he did not own property on North 5th Street at the time Camden conveyed Lot 3 to the Church. Our "venerable tradition of liberal application of standing criteria, particularly in taxpayer suits and the like," Ridgewood Educ. Ass'n v. Ridgewood Bd. of Educ., 284 N.J. Super. 427, 431 (App. Div. 1995) (citations omitted), is based in part upon the rationale that "taxpayers' suits [are] an effective means for restraining official misconduct." Haines v. Burlington Cty Bridge Comm., 1 N.J. Super. 163, 172 (App. Div. 1949); see also Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 476 (finding that taxpayers may utilize the civil courts to secure government officials' compliance with obligations imposed by law), cert. denied, 344 U.S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952). We discern no basis to deprive a taxpayer of his or her broad right to challenge the legality of a local government's actions simply because he or she attains taxpayer status following the challenged action.

Plaintiff also has standing because his causes of action are based in part on the allegation that since his purchase of Lot 2 in 2014, Camden has continued its failure to obtain the reversion of title to Lot 3 he claims is required by the ordinance, notice for bids, and deed. Plaintiff therefore has standing as a Camden taxpayer, without regard to what occurred prior to his purchase of property, to challenge what he alleges is Camden's ongoing failure to obtain a reversion of title to Lot 3 from the Church.

It may be that plaintiff's claims are ultimately determined to be untimely or devoid of legal or factual merit on grounds not before us here. The substantive merits of a claim, however, are not determinative of a person's standing. See, e.g., Jen Elec., Inc., supra, 197 N.J. at 645 n.4 (noting that "whether a claim is time-barred is not relevant to whether the party raising the claim has standing to do so"). We offer no opinion on the merits of plaintiff's claims, but are convinced the court erred in its conclusion he lacked standing to bring them.3

Our conclusion that the court erred in finding plaintiff lacked standing renders it unnecessary to consider his argument that the court erred by denying his motion for reconsideration. The court's decision on plaintiff's reconsideration motion, however, raises an issue requiring our attention.

The court denied the reconsideration motion in part because it determined there was a basis, separate from plaintiff's purported lack of standing, requiring dismissal of the complaint. The court determined there was no violation of the restriction plaintiff claimed was imposed in the ordinance, notice for bids, and deed based on its finding that, as a matter of fact, Lots 1 and 3 are contiguous. Thus, the court concluded plaintiff could not establish a violation of the restriction upon which his claims are based.

Although the judge's conclusion was offered as a basis for her denial of plaintiff's motion for reconsideration, it was tantamount to a determination that defendants were entitled to summary judgment because she found there was no issue of fact concerning the Church's ownership of contiguous property and plaintiff's claims had no merit as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). We therefore review the judge's determination under the summary judgment standard.

In our review of an order granting or denying summary judgment, we "are bound by the same standard as the trial court under Rule 4:46-2(c)." State v. Perini Corp., 221 N.J. 412, 425 (2015) (citing Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013); Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). "[B]oth trial and appellate courts must view the facts in the light most favorable to the non-moving party." Bauer v. Nesbitt, 198 N.J. 601, 605 n.1 (2009) (citing R. 4:46-2(c); Brill, supra, 142 N.J. at 540).

"A court should grant summary judgment only when the record reveals 'no genuine issue as to any material fact' and 'the moving party is entitled to a judgment or order as a matter of law.'" Gormley v. Wood-El, 218 N.J. 72, 86 (2014) (quoting R. 4:46-2(c)). Issues of law are subject to the de novo standard of review, and the trial court's determination of such issues is accorded no deference. Kaye v. Rosefielde, 223 N.J. 218, 229 (2015) (citations omitted).

Based upon our review of the record, we are convinced the conflicting certifications submitted by the parties presented a genuine dispute of material fact as to whether Lots 1 and 3 are contiguous. Because there was a genuine issue of fact as to the Church's ownership of contiguous property, the judge erred by relying on her conclusion defendants were entitled to judgment as

a matter of law as a basis for her denial of plaintiff's motion for reconsideration.

Reversed and remanded. We do not retain jurisdiction.

1 For ease of reference, we refer to the three properties at issue by the designation "Lot", followed by 1, 2, and 3 respectively.

2 The ordinance included in the record on appeal authorized Camden's sale of Lot 3 but does not include a requirement for any restrictions on the use of the property by the grantee.

3 We therefore are not required to decide if plaintiff also has standing based on whether his claims involve an issue of "great public interest" and he has alleged a sufficient "slight additional private interest." In re Grant of Charter to Merit Preparatory Charter Sch. of Newark, 435 N.J. Super. 273, 279 (App Div.) (quoting Salorio, supra, 82 N.J. at 491), certif. denied, 219 N.J. 627 (2014).