TREDWELL PRESERVATION COALITION, INC. v. BOROUGH OF RUMSON PLANNING BOARD, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0110-05T50110-05T5

TREDWELL PRESERVATION

COALITION, INC., a nonprofit

corporation,

Plaintiff-Appellant,

v.

BOROUGH OF RUMSON PLANNING

BOARD, ARTHUR F. PARENT and

LESLIE H. PARENT,

Defendants-Respondents.

__________________________________

 

Argued November 13, 2006 - Decided December 1, 2006

Before Judges Lintner, S.L. Reisner and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-996-05.

Michele R. Donato argued the cause for appellant.

Michael B. Steib argued the cause for respondent Borough of Rumson Planning Board.

Richard J. Driver argued the cause for respondents Arthur F. Parent and Leslie H. Parent (Wolf, Block, Schorr and Solis-Cohen, attorneys; Mr. Driver, of counsel and on the brief; Henry Gluckstern, also on the brief).

PER CURIAM

Plaintiff Tredwell Preservation Coalition, Inc., appeals a judgment of the Law Division affirming an amended minor subdivision approval with variances granted by defendant Borough of Rumson Planning Board (the Board) to defendants Arthur F. Parent and Leslie H. Parent (the Parents) respecting property on which the Morris-Salter-Tredwell House, an eighteenth-century building listed in the historic preservation element of the Rumson Master Plan, was located. The resolution granting the approval contained nine special conditions. General condition five provided that the first eight special conditions had to be satisfied before any site work could be commenced, or plans signed or released, or any work performed. Special condition nine required submission of certain documentation respecting preservation of the main portion of the Tredwell House before demolition or building permits could be issued regarding demolition of the twentieth-century wing additions to the house. After all briefs on this appeal were filed, the Tredwell House burned to the ground.

The plaintiff raises the following issues on appeal:

POINT I - THE APPLICATION MUST BE REMANDED TO THE BOARD TO CREATE AN ADEQUATE RECORD FOR JUDICIAL REVIEW.

POINT II - THE COURT BELOW ERRED IN ALLOWING EX PARTE MEETINGS OF THE BOARD AND THE APPLICANTS.

POINT III - THE PRIVATE BOARD MEETINGS VIOLATE THE OPEN PUBLIC MEETINGS ACT.

POINT IV - THE BOARD WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE IN GRANTING THE APPROVALS.

THE BOARD'S RESPONSIBILITY IN GRANTING

SUBDIVISION APPROVALS.

VARIANCE FOR A BUILDING LOT NOT

ABUTTING A PUBLIC STREET.

POINT V - APPLICANTS FAILED TO SATISFY THE PROOFS FOR DESIGN WAIVERS.

WAIVERS FROM BUILDING DESIGN AND

HISTORIC PRESERVATION REQUIREMENTS.

EXEMPTION FROM THE REQUIREMENTS FOR A

DEVELOPMENT PERMIT.

ADEQUACY OF ACCESS AND UTILITIES.

Plaintiff did not raise any specific issue on appeal with respect to special condition four, which gave plaintiff the right to relocate the gardener's cottage if it gave notice of intention to do so within thirty days of the adoption of the resolution.

As a result of the destruction of the Tredwell House, we conclude that this appeal has been rendered moot. We note that because the Tredwell House no longer exists, the Parents can no longer fulfill a number of the special conditions precedent to any work on the property. As a consequence, the Parents cannot commence any site work or any other work described in general condition five. Therefore, in dismissing the appeal as moot, we also remand the matter to the Board for reconsideration of the resolution granting amended minor subdivision approval. The factual predicate for the variance for a lot not abutting a street was the preservation of the Tredwell House. Because that factual predicate for the resolution has been destroyed, the resolution must be reconsidered.

In conducting such further proceedings, we caution the Board that it may not avoid the mandate of the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21. Any action taken by a board is voidable if the Open Public Meetings Act is violated. N.J.S.A. 10:4-15(a). A resolution may not recite facts not supported by the record. In re Convery, 166 N.J. 298, 306 (2001) ("[I]n granting a zoning variance a Board of Adjustment may not base its decisions on facts that are not included in the record."); Russell v. Bd. of Adjustment of Tenafly, 31 N.J. 58, 66 (1959) ("The board is not entitled to act on facts not part of the record."); Baghdikian v. Bd. of Adjustment of Ramsey, 247 N.J. Super. 45, 50-51 (App. Div. 1991) (all of the facts "must be placed on the record so that the essence of a fair hearing is provided and a full reviewable record is made").

Neither shall the process of drafting a resolution become a vehicle for negotiating or deciding issues or conditions on which the public has not had an opportunity to comment. Stewart v. Planning Bd. of Twp. of Manalapan, 334 N.J. Super. 123, 129-30 (Law Div. 1999) (finding an informal review hearing is not authorized by statute). The legislative history supports this requirement:

[T]he public and the press should have advance notice of and the opportunity to attend most meetings, including executive sessions, of public bodies, except where the public interest or individual rights would be jeopardized. If the public and the press cannot attend . . ., they cannot learn of many positions that are considered or taken at such meetings by individual officials serving the public. Lack of this information can lessen public confidence in governmental decisions and impair the public's function of holding officials accountable in a democracy.

[Introductory Statement, Assembly Bill No. 1030 (1975).]

Moreover, it is improper for individual Board members to meet ex parte with the applicant to discuss the application while it is pending before the full Board. "[An informal] meeting, discussing issues of consequence to the application as part of its agenda, is not provided for by New Jersey statute." Stewart, supra, 334 N.J. Super. at 131.

In the event it is necessary to draft a resolution containing elements that were not subject to public comment when the resolution is presented to the Board, the Board must open the meeting to public comment before a vote is taken on the resolution. Cf. Baghdikian, supra, 247 N.J. Super. at 52 (holding that information gained by a board member must be fully disclosed on the record "and the applicants and objectors . . . given full opportunity to address the board member's comments").

Appeal dismissed and remanded to the Borough of Rumson Planning Board for further proceedings consistent with this opinion.

 

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A-0110-05T5

December 1, 2006