METROVATION ANDERSON, LLC v. ZONING BOARD OF ADJUSTMENT FOR THE BOROUGH OF RED BANK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3873-06T33873-06T3

METROVATION ANDERSON, LLC,

Plaintiff-Respondent,

v.

ZONING BOARD OF ADJUSTMENT

FOR THE BOROUGH OF RED BANK,

Defendant-Respondent,

and

WILLIAM E. MEYER,

Defendant-Appellant.

____________________________________

 

Argued February 27, 2008 - Decided

Before Judges Axelrad, Sapp-Peterson and Messano.

On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-402-06.

Bernard M. Reilly argued the cause for appellant (Dowd and Reilly, attorneys; Mr. Reilly, on the brief).

James G. Aaron argued the cause for respondent Metrovation Anderson, LLC (Ansell, Zaro, Grimm & Aaron, attorneys; Mr. Aaron, of counsel; Hussam Chater, on the brief).

Kevin E. Kennedy argued the cause for respondent Zoning Board of Adjustment for the Borough of Red Bank.

PER CURIAM

Defendant William E. Meyer appeals from a trial court order finding that Red Bank Zoning Board (Zoning Board) member Tom Williams (Williams) did not have a disqualifying conflict of interest preventing him from participating in the variance application of plaintiff Metrovation Anderson, LLC. (Metrovation).

Metrovation is a limited liability company located in Red Bank. It consists of two separate entities: Sher Rocklin, LLC and Cole Red Bank Retail Partnership. Cole Red Bank Retail Partnership owns a minority interest (33.33%) in Metrovation and is owned by Christopher Cole and his wife, Emma Cole. Metrovation owns several parcels of property located in Red Bank that it wishes to develop. The parcels are located at 200-208, 210 and 21 Monmouth Street and 57-59 Shrewsbury Avenue, designated as Block 38, Lots 2.01, 3, 4, 5, 5.01 and 6 on Red Bank's Tax Map. At the time of Metrovation's variance application, Williams had been a member of the Zoning Board since January 2004.

In 2006, Metrovation filed an application with the Zoning Board for a use/density variance for a mixed use development of the parcels described above. The first public hearing on the application took place on December 7, 2006. At the beginning of the hearing, Williams, the Board's Acting Chair, disclosed that he had recently commenced working at Irwin Marine.

Irwin Marine is a marina located in Red Bank. The marina is owned by Channing Irwin, who testified that the marina consists of 165 boat slips and had between 800 to 1,000 customers. Cole purchased a boat from the marina in the summer of 2006. Williams commenced his employment at the marina in August of 2006. Williams never performed any work on Cole's boat and, like the other technicians working at Irwin Marine, has no control over which boats he works on. That decision is made by the marina service manager.

Williams works as a full-time technician repairing boats at the marina and he is paid hourly. He works alongside five other technicians who are also employed by the marina. As a technician, Williams repairs fiberglass, performs woodworking, and does electronic work, and addresses warranty issues associated with new power boats.

Meyer, who was present at the hearing when Williams disclosed his employment with Irwin Marine, commented that he believed Williams had a disqualifying conflict of interest. Notwithstanding Meyer's objection, the hearing continued, with Williams' participation.

On December 28, 2006, plaintiff filed a verified complaint in the Chancery Division, General Equity Part, against Meyer and the Zoning Board, and also filed a motion, pursuant to Rule 4:67-2(b), to proceed summarily. In the complaint, plaintiff sought a declaratory judgment that Williams did not have a conflict of interest and also requested that the court award compensatory damages and attorney fees against Meyer. Meyer and the Zoning Board filed their answers to the complaint shortly thereafter.

On January 20, 2007, Meyer filed a cross-motion seeking to dismiss plaintiff's complaint on the basis that it constituted an impermissible Strategic Lawsuit Against Public Participation (SLAPP) suit. The court held a hearing on the motions on February 2, 2007. At the conclusion of the hearing, the court deferred on Meyer's motion to dismiss, but granted plaintiff's motion to proceed summarily. The court then scheduled a trial date solely to address the declaratory relief sought by plaintiff.

In an oral opinion at the conclusion of the proceeding, the court declared that Williams did not have a conflict of interest disqualifying him from participating in the proceedings concerning plaintiff's application, as there was no evidence to suggest that Williams' employment with the marina would be enhanced by the Zoning Board's approval of Metrovation's application. The order contained a further provision: "Mr. Williams agrees not to accept any work from Mr. Cole directly or indirectly until further order of the court or agreement of the parties or until [one] year after the pending application is finally determined." The court transferred plaintiff's damage claim to the Law Division, and that claim is now pending under Docket No. L-956-07. On April 4, 2007, plaintiff voluntarily dismissed the damage suit as to the Zoning Board.

Meyer filed a notice of appeal on March 27, 2007, challenging the court's February 20, 2007 order. Plaintiff filed a motion to dismiss the appeal as interlocutory since the claim regarding damages was still pending before the Law Division. We denied plaintiff's motion on July 19, 2007, but provided that plaintiff "may raise this issue with the appellate panel that will hear and decide this case."

Defendant raises the following points on appeal:

POINT I

THE TRIAL COURT SHOULD NOT HAVE ENTERTAINED, AND SHOULD HAVE DISMISSED, THIS SLAPP SUIT AGAINST A CITIZEN COMMENTING ON A MAJOR DEVELOPMENT VARIANCE APPLICATION UNDER THE GUISE OF AN IMPROPER DECLARATORY JUDGMENT SUIT.

POINT II

TO THE EXTENT THIS WAS ASSERTED AS A DECLARATORY JUDGMENT ACTION, IT WAS NOT A VALID ACTION.

POINT III

THE COMPLAINT SHOULD HAVE BEEN DISMISSED WITH AN AWARD TO DEFENDANT MEYER OF REASONABLE COSTS AND ATTORNEY'S FEES AS PLAINTIFF'S COMPLAINT CONSTITUTED A FRIVOLOUS PLEADING COMMENCED IN BAD FAITH.

POINT IV

THE FACTS DEVELOPED AT THE SUMMARY HEARING INDICATE BOARD MEMBER WILLIAMS' RECUSAL WAS APPROPRIATE.

POINT V

AS PART OF THE RELIEF, THIS COURT SHOULD REMAND TO THE TRIAL COURT TO ASSESS THE VALIDITY OF THE METROVATION DEVELOPMENT APPROVAL.

An appeal from a trial court judgment may be taken as of right only from a final judgment. R. 2:2-3(a)(1). "To be considered a final judgment appealable as of right, the order must generally dispose of all issues as to all parties." CPC Intern., Inc. v. Hartford Accident & Indem. Co., 316 N.J. Super. 351, 365 (App. Div. 1998), certif. denied, 158 N.J. 73 (1999).

However, Rule 2:2-4 provides that "the Appellate Division may grant leave to appeal, in the interest of justice, from an interlocutory order of a court[.]" Further, we have held that "we have the power to grant leave to appeal nunc pro tunc from an interlocutory order where there are extraordinary circumstances and the interests of justice so warrant[.]" Delbridge v. Jann Holding Co., 164 N.J. Super. 506, 509-10 (App. Div. 1978) (citing R. 2:2-3(b); R. 2:4-4(b)(2); Butler v. Bonner & Barnewall, Inc., 56 N.J. 567, 573n.2 (1970); N.J. Land Title Ins. Rating Bur. v. Sheeran, 151 N.J. Super. 45, 50n.2 (App. Div. 1977); Rybeck v. Rybeck, 150 N.J. Super. 151, 155 (App. Div. 1977), certif. denied, 75 N.J. 30 (1977); Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974); Kerr v. Kerr, 129 N.J. 291 (1974).

Plaintiff argues that Meyer's appeal should be dismissed as interlocutory because the trial court's order failed to dispose of all the claims and issues presented in this litigation. We agree.

The trial judge, in granting declaratory relief, merely ruled on a conflict of interest objection raised by Meyers during the pendency of the variance application before the Zoning Board. The order granting declaratory relief did not dispose of all claims to the Law Division and defendant failed to obtain leave to appeal the interlocutory order. We have held that absent extraordinary circumstances, "it may be appropriate, in order to avoid piecemeal adjudication or duplicative, anomalous or contradictory results, for a court to defer in its jurisdictional exercise, even if only temporarily, while the administrative agency with the primary interest sorts out the issues and the claims." Archway Programs, Inc. v. Pemberton Twp. Bd. of Educ., 352 N.J. Super. 420, 425 (App. Div. 2002).

The record is devoid of any extraordinary circumstances warranting consideration of the conflict of interest issue before the Zoning Board resolved Metrovation's variance application. Delbridge, supra, 164 N.J. Super. at 509-10; R. 2:2-3(b); R. 2:4-4(b)(2). Since Meyer's appeal was not a final judgment as to all issues and all parties, and because leave to file an interlocutory appeal was not obtained, we dismiss this appeal without prejudice.

 

Having retroactive legal effect through a court's inherent power. Black's Law Dictionary 489 (2nd Pocket ed. 2001).

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A-3873-06T3

July 21, 2008