GAIL ELIZABETH BOBAL v. HENRY CACKOWSKI, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1446-04T51446-04T5

GAIL ELIZABETH BOBAL,

Plaintiff-Appellant,

v.

HENRY CACKOWSKI, JOHN CHADWICK,

ROBERT DUDASH, JR., HALL EISENHAUER,

JOSEPH GIACOMO, CLIFF KUHN, ESQ.,

MICHELE MICELI, MARK SHANE,

JOHN ANDREW SOLTESZ, LILLIAN TRIOLA,

and THOMAS KRESS,

Defendants-Respondents.

________________________________________________________________

 

Submitted May 23, 2007 - Decided July 24, 2007

Before Judges Parker, Yannotti and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-68-04.

Gail Elizabeth Bobal, appellant pro se.

Ron Reich, attorney for respondents Joseph Giacomo, Thomas Kress, Mark Shane and John Chadwick.

DiFrancesco, Bateman, Coley, Yospin, Kunzman, Davis & Lehrer, attorneys for respondents Henry Cackowski, Robert Dudash, Jr., Cliff Kuhn, Esq., Hall Eisenhauer, Michelle Miceli, John Soltesz and Lillian Triola (Timothy P. Beck, on the brief).

PER CURIAM

Plaintiff Gail Elizabeth Bobal appeals from a judgment entered on August 27, 2004 dismissing her complaint, and an order entered on October 8, 2004 denying her motion for reconsideration. We affirm.

This case has its genesis in a 2003 application to the Edison Township Planning Board (Board) for a preliminary and final site plan approval and variance to build a two-story office building on Lot 42-T-2, Block 161-N. Defendant Thomas Kress was the record owner of that property and defendant Joseph Giacomo was the contract purchaser. Giacomo's purchase of the property was contingent on obtaining certain site plan approvals from the Board. Defendant Mark Shane was the attorney who represented Giacomo and Kress before the Board. Defendant Lillian Triola was the Board secretary and the remaining defendants were members of the Board who voted for approval of the application.

Plaintiff lives on property owned by her parents adjoining the subject property and appeared before the Board as an objector. At an initial hearing on July 14, 2003, plaintiff appeared and raised a number of objections to the application. The hearing was continued on November 17, 2003, at which time plaintiff again voiced objections to the application. After hearing all of the testimony, the Board voted to approve the application and grant the variance. The Resolution was adopted on December 15, 2003 and published on December 29, 2003.

On March 16, 2004, plaintiff filed a complaint in the Chancery Division, in which she alleged that (1) the Giacomo site plan encroached on her parents' property; (2) the Board did not address the encroachment issue; (3) Giacomo did not amend his application to correct the encroachment; (4) the Board's approval was constitutionally defective because of the encroachment; (5) the Board's approval resulted in a "transfer of a property interest of the plaintiff to defendant Giacomo;" (6) the Board's "transfer of the property interest" was "willful. It was not inadvertent;" (7) "defendants acted in conspiracy to effect this unlawful approval, agreeing in concert to cause an unlawful transfer of property;" (8) Giacomo is guilty of theft under the criminal code, N.J.S.A. 2C:20-3; (9) Kress engaged in "fraud and collude[ed] with Mr. Giacomo to violate the law;" and (10) N.J.S.A. 2C:20-20 entitles plaintiff to compensatory damages "to be born [sic] by defendants equally because of their conspiracy which effectuated an unlawful transfer of plaintiff's property interest to Mr. Giacomo." The remainder of plaintiffs complaint alleges various defects in the application and contains plaintiff's arguments as to why the Board should not have approved it.

Defendants moved to dismiss the complaint. The trial court granted the motion and held that (1) although the site plan map was inaccurate, there was no theft as a matter of law: "An inaccurate site plan does not deprive the adjoining property owners of their property;" and (2) the matter is essentially a boundary line dispute between plaintiff and Kress/Giacomo. The court further held that the remainder of the complaint was essentially a prerogative writ action, which should have been filed within forty-five days of the Resolution. Because it was not filed timely, the court dismissed Counts 5, 6, 7, 8 and 10.

The trial court denied plaintiff's motion for reconsideration, stating: "A site plan map for site plan approval does not give one any substantive rights in another's property . . . . It is well-established that zoning laws and land use laws, although, they may affect one's use [and] enjoyment of property do not constitute constitutional violations." The court reiterated that although plaintiff did not style her complaint as a prerogative writs action, "there are prerogative writ overtones in [the] complaint." The court finally concluded: "What this case is really about is a dispute, perhaps between adjoining property owners as to a property boundary or whether or not there is an easement which exists."

In this appeal, plaintiff argues:

POINT ONE

IT WAS REVERSIBLE ERROR TO RULE THAT THE EDISON PLANNING BOARD, AT ALL TIMES DURING ITS PROCEEDINGS, HAD JURISDICTION TO DECIDE THE GIACOMO LAND USE APPLICATION BEFORE IT IN ACCORDANCE WITH THE SITE PLAN HE PRESENTED.

A. In an in rem proceeding, it is necessary to have jurisdiction over the res.

B. The board lacked subject-matter jurisdiction over the plat because NJ statutory law prohibits approval of local development in conflict with plans of the state.

C. The board lacked subject-matter jurisdiction over the plat because there is no legal title to support its existence and no legal ownership that the law must recognize.

D. By its actions, the board unlawfully permitted jurisdictional objections with respect to the plat, and the court ratified that pretermission.

E. The board may not resolve jurisdictional objections of encroachment because it has no grant of power to determine lot lines or set them with respect to usage.

F. A void document can provide no legal support whatsoever for the court's jurisdictional ruling.

G. There can be no documentary support for the court's jurisdictional ruling because the judge denied the admission of any further documents into the case.

POINT TWO

THE DISMISSAL OF MY COMPLAINT WAS EFFECTUATED BY FRAUD UPON THE COURT AND MUST BE REVERSED.

POINT THREE

IT WAS REVERSIBLE ERROR TO RULE THAT, AS A MATTER OF LAW, THERE WAS NO VIOLATION OF ANY THEFT STATUTE.

A. Absent subject-matter jurisdiction by the board, the resolution approving the Giacomo site plan is void and confers no lawful rights.

B. State action, absent subject-matter jurisdiction, violates law and equity.

C. Contrary to the ruling of the court, substantive rights in property were indeed affected by site plan approval.

POINT FOUR

IT WAS REVERSIBLE ERROR TO LIMIT MY RIGHT OF ACTION TO A COMPLAINT IN LIEU OF PREROGATIVE WRITS.

POINT FIVE

I HAVE STANDING TO HAVE MY RIGHTS OF ACTION ADJUDICATED.

POINT SIX

DUE PROCESS WAS DENIED ME.

POINT SEVEN

APPROVAL OF THE SITE PLAN RESOLUTION CAUSED DEPRIVATION OF A PROPERTY RIGHT AS TO THE SIZE OF BUFFER ZONE PROTECTION.

POINT EIGHT

APPROVAL OF THE SITE PLAN RESOLUTION CAUSED DEPRIVATION OF PROPERTY AND IMPAIRED THE OBLIGATION OF CONTRACTS.

POINT NINE

IT IS UNCONSTITUTIONAL FOR A GOVERNMENTAL ENTITY TO RETAIN A PROFIT ON SUBSEQUENT SALE OF LAND PUBLICLY ACQUIRED.

We have carefully considered the record in light of plaintiff's arguments and the applicable law. We are satisfied that plaintiff's arguments lack sufficient merit to warrant consideration in a written opinion. R. 2:11-3(e)(1)(E). The decision of the trial court is supported by adequate credible evidence in the record. R. 2:11-3(e)(1)(A). We agree with the trial court's assessment of the case as essentially a boundary dispute. As the trial judge noted, plaintiff's remedy is for her parents to file an action to quiet title in accordance with N.J.S.A. 2:62-1.

 
Affirmed.

Although plaintiff has persisted with the encroachment argument, she has never presented a current survey to prove her allegation; she has merely relied on the site plan maps.

(continued)

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A-1446-04T5

July 24, 2007