GRETA MARTIN v. CITY OF BAYONNE
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1564-16T1
GRETA MARTIN, JOHN R. BLUM,
DEBORAH BLUM, PATRICIA FROMER,
TIMOTHY FROMER, BRUCE D. PIGGOT,
VINCENT DRENNAN, AMANDA WHITE,
EILEEN WHITE, GERARD MONCHEK,
DALE MONCHEK, and LOUISE CONNORS,
Plaintiffs-Appellants,
v.
CITY OF BAYONNE and CITY OF
BAYONNE PLANNING BOARD,
Defendants-Respondents,
and
975 BROADWAY OWNER, LLC,
Defendant/Intervenor-Respondent.
_______________________________________
Argued May 1, 2018 – Decided May 10, 2018
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
2332-16.
Christine Finnegan argued the cause for
appellants (C. Finnegan & Associates Law Firm,
LLC, attorneys; Christine Finnegan, on the
briefs).
Gregory K. Asadurian argued the cause for
respondents City of Bayonne and City of
Bayonne Planning Board (Kaufman, Semeraro &
Leibman, LLP, attorneys; Gregory K. Asadurian,
on the brief).
Clark E. Alpert argued the cause for
respondent 975 Broadway Owner, LLC (Weiner Law
Group, LLP, attorneys; Steven R. Tombalakian
and Michael Miceli, of counsel; Clark E.
Alpert and David N. Butler, on the brief).
PER CURIAM
Plaintiffs appeal from an October 28, 2016 order, which
dismissed their complaint in lieu of prerogative writs for lack
of transcripts of the proceedings before the City of Bayonne
Planning Board (Board) pursuant to Rule 4:69-4. We affirm.
We have not been provided with the transcripts of the
proceedings before the Board. However, we derive the facts from
the resolution passed by the Board and the parties' briefs.
On March 18, 2016, defendant 975 Broadway Owner, LLC (975
Broadway), applied to the Board for preliminary and final approval
to construct a mixed-use building in Bayonne. The plan for the
site consisted of up to 91 residential units, ground floor
commercial use, and 150 parking spaces. Defendant the City of
Bayonne (City) had previously declared this area "blight[ed]",
"deteriorate[d]", and in need of redevelopment. This declaration
2 A-1564-16T1
created a new zone, which also created new land use regulations
for the area. 975 Broadway's application to the Board met the new
zoning criteria, and did not require any variances.
The application was considered at a special board meeting on
April 6, 2016, at which members of the public, including two of
the plaintiffs here, testified. 975 Broadway presented testimony
from its engineering expert, Joseph Jaworski, P.E., regarding the
site plan and its compliance with the City's redevelopment plan.
Jaworski also addressed the logistics of the site such as
ingress/egress, parking, storm water collection, roof run-off,
landscaping, open space, and explained why the application
required no need for variances to the zoning regulations. 975
Broadway also presented testimony of its architect Francis Pisani,
who similarly testified no variances were needed for the project.
Additionally, a traffic engineer, Joseph Staigar, P.E., testified
regarding the existing site conditions, the amount of new traffic
expected to be generated, and the process used to develop a safe
plan.
Following the hearing, the Board passed a resolution adopting
975 Broadway's plan. The resolution was memorialized on April 12,
2017. Because we lack a transcript of the hearing, it is unclear
whether plaintiffs contested the Board's conclusions.
3 A-1564-16T1
On April 18, 2016, 975 Broadway published a "Notice of Action
Taken by the Planning Board" in The Jersey Journal. This
publication triggered the forty-five day period allowed under Rule
4:69-6(b)(3) to file an action challenging the approval.
Plaintiffs filed their complaint in lieu of prerogative writs on
June 6, 2016, four days past the June 2, 2016 deadline. Plaintiffs
named as defendants the City, the Board, and various "John Does."
975 Broadway was neither named in the complaint nor given notice
of the action, but intervened by way of motion.
Plaintiff's complaint was not accompanied by a certification
stating all necessary transcripts of the municipal land use board
have been ordered as required by Rule 4:69-4. A case management
conference occurred as mandated by Rule 4:69-4, during which the
motion judge addressed the lack of transcripts of the proceeding
before the Board. Plaintiff's counsel assured the motion judge
he would obtain the transcripts.1
Plaintiff's counsel did not request the transcripts. As a
result of the late filed complaint and the lack of transcripts or
transcript request, the City filed a motion to dismiss, which 975
Broadway joined. At the initial motion hearing on October 19,
2016, plaintiff's counsel stated he thought the transcripts were
1
Plaintiff's counsel who appeared before the motion judge is not
the attorney who represents plaintiffs on this appeal.
4 A-1564-16T1
ordered in "late June." The motion judge ordered the submission
of sworn statements from the parties. The motion judge
specifically directed plaintiff's counsel to provide a detailed
description of his efforts to secure the transcripts, and to bring
the transcript order form to the next motion hearing. The judge
explained:
I have to see . . . when the transcripts were
ordered. . . . [I]f the request was a couple
of days after the complaint was filed, that's
in violation of [Rule] 4:69-4, but . . . what's
a couple of days . . . ? But if [it] turns
out that as we sit here on [the next hearing
date] they haven't been ordered yet, that
could be a serious problem.
We have not been provided with the certification submitted
by plaintiff's counsel. However, we understand counsel's
certification attached an email from the Bayonne City Clerk's
Office dated July 15, 2016, responding to an Open Public Record
Act (OPRA) request,
N.J.S.A. 47:1A-1 to -13, made by plaintiff's
counsel for the transcripts. The City and the Board submitted two
certifications, namely, from Lillian Glazewski, the city land use
coordinator, and Susan Bischoff, the Board's court reporter.
Glazewski's certification stated she did not receive a
transcript request from anyone. Bischoff certified that, as the
Board's court reporter, she is the only person who transcribes the
proceedings before the Board, and no one ever made a request or
5 A-1564-16T1
paid a deposit for a transcript of the hearings regarding 975
Broadway's application.
At the motion hearing on October 28, 2016, the motion judge
heard oral argument, and learned the transcripts had not been
ordered. Addressing plaintiffs' counsel, the judge stated:
You stand here . . . telling me that of course
[you ordered the transcripts] and laughing at
the notion that you haven't . . . . You've
got nothing here whatsoever to show that you
ordered them, and you knew that was an issue.
It was a big issue last week. I have the
certification . . . indicating that it hasn't
been ordered. You laugh at me when I say
well, it seems to me you haven't ordered it
and you've got nothing to show me that you
have ordered it. So . . . you're still not
being candid with the court[.]
After oral argument and review of the parties' submissions,
the judge granted the motion to dismiss. The judge found
plaintiffs had failed to comply with Rule 4:69-4 for failure to
produce the transcripts. The judge found defendants had been
prejudiced by the passage of five months since the initial filing,
and dismissed plaintiffs' complaint with prejudice. This appeal
followed.
The issue before us is a question of law. Therefore, our
standard of review is de novo. State v. Hubbard,
222 N.J. 249,
263 (2015).
6 A-1564-16T1
On appeal, plaintiffs argue the motion judge erred because
plaintiffs had issued an OPRA request to the City of Bayonne,
which did not yield transcripts for the proceeding. Plaintiffs
assert the OPRA request sufficed as compliance with Rule 4:69-4.
Additionally, plaintiffs argue that since prerogative writ actions
are Track IV actions for purposes of discovery, the motion judge
should have permitted them the 450 days allotted to such cases for
discovery to obtain the transcripts. Plaintiffs also assert the
motion to dismiss was improperly decided as a summary judgment
motion, which we take to mean plaintiffs believe the judge erred
by dismissing the matter with prejudice.
Rule 4:69-4, entitled "The Filing and Management of Actions
in Lieu of Prerogative Writs" states:
The filing of the complaint shall be
accompanied by a certification that all
necessary transcripts of local agency
proceedings in the cause have been ordered.
All actions in lieu of prerogative writs will
be assigned to Track IV. Within [thirty] days
after joinder and in order to expedite the
disposition of the action the managing judge
shall conduct a conference, in person or by
telephone, with all parties to determine the
factual and legal disputes, to mark exhibits
and to establish a briefing schedule. The
scope and time to complete discovery, if any,
will be determined at the case management
conference and memorialized in the case
management order.
[(Emphasis added).]
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The annotation to the rule states:
This rule provides for special case management
for actions in lieu of prerogative writs for
the purpose of expediting final disposition.
First, the complaint must be accompanied by a
certification asserting that all agency
transcripts have been ordered . . . Second,
all actions in lieu of prerogative writs are
assigned to Track IV to assure single-judge
management throughout, but with the discovery
schedule, if any, to be determined by the
judge on a case by case basis.
. . . .
Because the 450-day discovery period afforded
by [Rule] 4:24-1(a) to Track IV cases is
normally inappropriate in lieu of prerogative
writ actions, this provision of the rule
leaves the issue to the court for
determination on a case by case basis.
[Pressler & Verniero, Current N.J. Court
Rules, cmt. 5.1 on R. 4:69-4 (2018) (emphasis
added).]
Plaintiffs never submitted the certification required by Rule
4:69-4 to certify the transcripts for the April 6, 2016 Planning
Board Hearing were requested, or provided proof to show the
transcripts were ordered or a deposit made. Rather, the record
demonstrates plaintiff's counsel misrepresented that he had
ordered the transcripts. Indeed, at the initial motion hearing,
the motion judge asked plaintiff's counsel: "When in fact did you
order the transcripts?" Plaintiff's counsel responded: "I want
to say late June." The City and the Board's counsel then stated:
8 A-1564-16T1
"Judge, the transcripts have not been ordered . . . I've spoken
with my clients, they have not been ordered."
As a result of the dispute over this fundamental pre-condition
of perfecting the action, the motion judge adjourned oral argument
and required the certifications we noted above. When the matter
returned for oral argument, the only proof plaintiffs submitted
was an email from the city clerk's office dated July 15, 2016, in
response to an email sent by plaintiff's counsel, stating "The
Planning & Zoning Office has advised they have no transcripts for
the requested hearing[.]" Plaintiffs never provided the motion
judge with their original email, which they claimed contained the
transcript request. Moreover, the subject-line of the response
email demonstrated plaintiff's counsel had made an OPRA request
to determine if anyone else had ordered the transcripts, but did
not actually order the transcripts themselves.
The motion judge addressed this important difference during
the second hearing on October 28, 2016.
I wish [plaintiff's counsel] had the e-mail
. . . that [the City's employee] apparently
was responding to.
[The response is] literally saying there
simply are no transcripts, the reason being
that nobody ever ordered them.
. . . .
9 A-1564-16T1
I'll accept that you were asking for the
transcripts, because she says, "Has advised
they have no transcripts." But, transcripts
don't automatically appear. Somebody . . .
has to request that the recording be
transcribed. Then a typist types it up and
then the recording . . . becomes a
transcript[.]
. . . .
And as I sit here right now you . . . show me
nothing that indicates even as of late October
that you've ordered them.
The judge concluded:
This complaint was filed in early June. It's
now late October. . . . [I]t's already been
five months and I am satisfied [the
transcripts have] still not been ordered.
There's a reason why when someone challenges
a governmental agency, either a planning board
or a zoning board or others, that . . . there's
a [forty-five] day time limit as opposed to a
two-year statute of limitations or a six-year
statute of limitations. Those people who are
involved have a right to know pretty quickly
whether or not this . . . project is really
going to be stayed or not by the prerogative
writ.
. . . .
I'm going to dismiss your complaint with
prejudice because you should have ordered
those transcripts back in June. . . . [Rule]
4:69-4 says the complaint shall be accompanied
[by the certification of the transcript
request].
. . . I suppose, even though it says shall,
there could be under some circumstances
relaxing it a few days, but here we are . . .
almost five months later and you still haven't
10 A-1564-16T1
ordered it. Despite . . . a letter that you
sent me saying that you ordered it back in
July you're referencing court last week saying
you ordered it in June, you never ordered it.
There is no basis to disturb the motion judge's decision.
The judge referenced his discretion to enlarge the time period
necessary for plaintiffs to order the transcripts. Although Rule
4:69-4 does not provide for the ability to do so, arguably Rule
4:69-6 does. This rule addresses the enlargement of the time
period for filing a complaint in lieu of prerogative writs and
other "particular actions." R. 4:69-6(b). The rule states: "The
court may enlarge the period of time provided in [Rule 4:69-6](a)
or (b) . . . where it is manifest that the interest of justice so
requires." R. 4:69-6(c). Thus, although Rule 4:69-6(c) does not
expressly reference Rule 4:69-4, because the certification
required by the latter is an integral part of the complaint
referenced by the former, the enlargement of time to file a
complaint also enlarges the time to file the certification of the
transcript request.
We have broadly interpreted the ability of a trial court to
enlarge the time period for filing of a complaint in lieu of
prerogative writs. See Cohen v. Thoft,
368 N.J. Super. 338, 345-
47 (App. Div. 2004) (holding the "interest of justice" standard
under Rule 4:69-6(c) exceeded the category of case previously
11 A-1564-16T1
identified as subject to enlargement, namely, cases involving:
"(1) important and novel constitutional questions; (2) informal
or [e]x parte determinations of legal questions by administrative
officials; and (3) important public . . . interests which require
adjudication or clarification" (quoting Brunetti v. Borough of New
Milford,
68 N.J. 576, 586 (1975))). Notably, in Cohen, we reversed
a trial court's dismissal of a complaint in lieu of prerogative
writs where the failure to file the complaint in a timely manner
was caused by misinformation given by a zoning officer to a
plaintiff regarding the published notice of approval for setback
and coverage variances granted to defendants to expand their home.
Id. at 347. We held the trial court should have enlarged the
period of time for the filing of plaintiff's complaint because
plaintiff reasonably relied on the zoning officer's
representations and "plaintiff did not 'slumber on [his]
rights[.]'" Ibid. (alteration in original) (quoting Schack v.
Trimble,
28 N.J. 40, 49 (1958)). Also, we noted the lack of
prejudice to defendants by the filing of the complaint, which was
filed only three days out of time. Ibid.
Our Supreme Court has interpreted Rule 4:69-6(c) in a similar
fashion. Citing our decision in Cohen, the Court observed "the
broad language of the enlargement provision belies the suggestion
that the intent of the rule is to restrict enlargement to one of
12 A-1564-16T1
those three categories. See [Rule] 4:69-6(c) (brooking no
limitation as to circumstances that may require enlargement in
interests of justice)." Hopewell Valley Citizens' Grp., Inc. v.
Berwind Prop. Grp. Dev. Co., LP,
204 N.J. 569, 584 (2011). The
facts of Berwind also entailed a plaintiff who was "inadvertently
misled" to file a complaint six days late by a planning board's
secretary. Id. at 584-85.
The facts here are entirely dissimilar, and anathema to the
purpose of Rule 4:69-6(c) and the mode of discovery contemplated
by Rule 4:69-4. Indeed, the record demonstrates plaintiffs were
not innocent parties who inadvertently perfected their complaint
in an untimely fashion because of misinformation provided by the
City or the Board. Rather, we are convinced plaintiffs were at
all times aware of their obligation to order the transcripts,
misrepresented to the motion judge they had ordered the
transcripts, but never did so. Moreover, by allowing five months
to elapse and still not having ordered the transcripts, plaintiffs
not only "slumbered" on their rights, but far exceeded and delayed
the reasonable time period for adjudication of their complaint,
thereby prejudicing defendants, particularly 975 Broadway.
For these reasons, we affirm the dismissal with prejudice of
plaintiffs' complaint. To the extent we have not addressed the
other arguments of plaintiffs, it is because they lack merit
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warranting further discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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