CONCERNED RESIDENTS OF ENGLEWOOD CLIFFS, INC v. BOROUGH OF ENGLEWOOD CLIFFS
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-1680-20
CONCERNED RESIDENTS OF
ENGLEWOOD CLIFFS, INC.,
Plaintiff-Appellant,
v.
BOROUGH OF ENGLEWOOD
CLIFFS, LISETTE DUFFY,
MARIO KRANJAC, GLORIA OH,
EDWARD AVERSA, DEBORAH
TSABARI, JIMMY SONG,
WILLIAM WOO, and RAMON
FERRO,
Defendants-Respondents,
and
800 SYLVAN AVENUE, LLC and
THE FAIR SHARE HOUSING
CENTER,
Intervenors-Respondents.
______________________________
Submitted March 3, 2022 – Decided March 11, 2022
Before Judges Alvarez, Haas, and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-7149-20.
Donald M. Doherty, Jr., attorney for appellant
Concerned Residents of Englewood Cliffs, Inc.
King, Moench, Hirniak & Collins, LLP, attorneys for
respondents Borough of Englewood Cliffs, Lisette
Duffy, Mario Kranjac, Gloria Oh, Edward Aversa,
Deborah Tsabari, Jimmy Song, William Woo, and
Ramon Ferro (Eric M. Bernstein, on the brief).
Beattie Padovano, LLC, and Hill Wallack, LLP,
attorneys for intervenor-respondent 800 Sylvan
Avenue, LLC (Antimo A. Del Vecchio and Thomas F.
Carroll, III, of counsel; Daniel L. Steinhagen, on the
brief).
Fair Share Housing Center, attorneys for intervenor-
respondent Fair Share Housing Center (Joshua D.
Bauers, of counsel and on the brief; Bassam F. Gergi,
on the brief).
PER CURIAM
Plaintiff Concerned Residents of Englewood Cliffs, Inc. appeals from the
Law Division's January 11, 2021 order dismissing its action in lieu of
prerogative writs against defendant Borough of Englewood Cliffs (the Borough)
and a number of Borough officials. We affirm.
The Borough was a defendant in two affordable housing lawsuits brought
against it by intervenors Fair Share Housing Center (FSHC) and 800 Sylvan
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2
Avenue, LLC (800 Sylvan). On September 30, 2020, the Borough clerk
scheduled a public meeting to be held on October 4, 2020, to enable the mayor
and Borough Council to discuss this litigation. The clerk notified the public of
the meeting by posting a meeting notice on the Borough's website and sending
the notice to two newspapers. On October 1, 2020, the clerk posted the notice
on the Borough's digital bulletin board. On October 2, the two newspapers
published the meeting notice. On that same date, the Borough emailed the notice
to a distribution list of over 1,300 Borough residents.
Because of the ongoing COVID-19 pandemic, the Borough could not hold
an in-person meeting. Therefore, it arranged to conduct the meeting using the
Zoom video-conferencing platform. The public notice stated:
BOROUGH OF ENGLEWOOD CLIFFS, BERGEN
COUNTY, NEW JERSEY, PUBLIC MEETING
NOTICE, please take notice pursuant N.J.S.A. 10:4-
9.1, a Special Meeting of the Mayor and Council of the
Borough of Englewood Cliffs, New Jersey will be held
on Sunday, October 4, 2020 at 2:00 PM via [Zoom].
Members of the public who wish to participate may do
so by joining online or over the phone at 2:00 PM. The
Special meeting is for the following purpose: resolution
authorizing the Governing Body to go into Executive
Session to discuss the following matters on Pending
Litigation: COAH/Affordable Housing – In Re
Borough of Englewood Cliffs, Docket No. BER-L-
6119-15 and 800 Sylvan Avenue LLC v. Borough of
Englewood Cliffs, Docket No. BER-L-69-18; A-4019-
17T2.
A-1680-20
3
While in Executive Session, members of the public will
be placed in a waiting room on [Zoom] until Executive
Session is over.
Once the Governing Body reconvenes, members of the
public will be invited back into the [Zoom] meeting.
Business may be discussed in executive and/or open
session, and acted upon as allowed by law.
Potential resolutions on all matters discussed in
Executive Session including resolutions pertaining to
the litigation matters above may be adopted when the
Governing Body reconvenes in open session.
Formal action may be taken.
Lisette M. Duffy, RMC, Municipal Clerk. [1]
On October 4, 2020, the mayor called the meeting to order at 2:00 p.m.
and then gave a lengthy statement concerning his views of the Council's decision
to conduct a public meeting. At 2:20 p.m., the Council learned that the number
of participants in the meeting had exceeded Zoom application's 100-participant
capacity. Council staff immediately addressed this issue and, by approximately
2:35 p.m., had increased the meeting capacity to 500 participants. The Council
1
The notice went on to set forth the Zoom platform link that that would connect
members of the public to the meeting. It also provided a telephone number that
individuals could use to join the meeting if they did not want to use a computer.
A-1680-20
4
did not conduct any business during the short time the staff needed to solve the
problem.
When the meeting reconvened, the Council went into closed session for
approximately three and one-half hours to discuss the pending litigation. The
Council then reopened the meeting and announced it had developed a proposed
settlement of the two matters. The Council provided the public with a summary
of the settlements and then took comments from the public. At the end of the
public comment period, the Council voted 2 to resolve both pieces of litigation
and adopted resolutions memorializing these decisions. The meeting did not
end until 2:20 a.m. on October 5, 2020.
Overall, 735 persons signed in and out of the meeting at various points.
At one point, 334 persons were attending simultaneously. The 500-participant
limit was never reached.
On November 30, 2020, plaintiff filed its complaint against the Borough
and several of its officials. According to the complaint, plaintiff "is comprised
of numerous residents of . . . Englewood Cliffs, dedicated to facilitating open
government and enforcing honesty and integrity from Borough officials."
2
The six-member Council voted three-to-two to settle both cases, and one
member abstained from the vote.
A-1680-20
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Plaintiff alleged the Borough did not comply with the Open Public
Meetings Act, N.J.S.A. 10:4-6 to -21 (the Act) in conducting the October 4, 2020
meeting. Plaintiff raised three specific contentions. First, it claimed the
Borough erred by not providing for sufficient capacity at the beginning of the
virtual meeting. Second, plaintiff asserted the Borough's notice of the meeting
did not adequately advise the public how to make comments after they joined
the virtual meeting. Finally, plaintiff argued the notice did not clearly apprise
the public that the Borough was considering settling both litigation cases.
FSHC and 800 Sylvan moved to intervene in plaintiff's lawsuit and the
trial court granted their motions. All the parties then consented to the matter
proceeding in a summary manner under Rule 4:67-2. The trial court set a
January 11, 2021 return date.
On January 10, 2021, plaintiff's attorney sent a letter to the trial court
alleging the case was settled and no further proceedings were necessary. FSHC,
800 Sylvan, and the individual Borough defendants responded that they had
never been approached with any proposed settlement. The Borough's attorney
confirmed that the Borough had not yet reviewed or approved a settlement
agreement involving plaintiff's complaint. Under these circumstances, the trial
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6
court denied plaintiff and the Borough's request for an adjournment of the
January 11, 2021 proceeding.
After considering the parties' contentions on that date, the trial court
rendered a written decision rejecting all of plaintiff's arguments under the Act
and dismissing the complaint. The judge found that the Borough's public
meeting notice met all the requirements of the Act.
Plaintiff has now appealed. As it did before the trial court, it argues: (1)
the Borough blocked an unknown number of people from attending the Zoom
meeting; (2) the meeting notice did not comply with the Act or with regulations
the Department of Community Affairs (DCA) adopted regarding the conduct of
remote electronic meetings; and (3) the meeting notice did not adequately
disclose the Borough was considering a settlement of the affordable housing
litigation. Plaintiff also contends the trial court erred by denying its request to
adjourn the January 11, 2021 proceeding. We disagree.
We generally defer to the factual findings of the trial court when there is
substantial credible evidence in the record to support them. Rova Farms Resort,
Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974). However, "[a] trial court's
interpretation of the law and the legal consequences that flow from established
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facts are not entitled to any special deference." Manalapan Realty L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995).
The Act "established procedures governing the conduct of meetings of
public bodies." Kean Fed'n. of Tchers. v. Morell, 233 N.J. 566, 570 (2018). It
made "explicit the legislative intent to ensure the public's right to be present at
public meetings and to witness government in action." Ibid. (citing N.J.S.A.
10:4-7). "That legislative intent is balanced by an express recognition that
public bodies must be allowed to exercise discretion in determining how to
perform their tasks . . . ." Ibid. (citing N.J.S.A. 10:4-12(a)). The Act "should
be 'liberally construed in order to accomplish its purpose and the public policy
of this State.'" McGovern v. Rutgers, 211 N.J. 94, 99-100 (2012) (quoting
N.J.S.A. 10:4-21).
Under the Act, "no public body shall hold a meeting unless adequate
notice thereof has been provided to the public[,]" although there are statutory
exceptions that do not relate to the issues here. N.J.S.A. 10:4-9. The Act defines
"adequate notice" as "written advance notice of at least [forty-eight] hours,
giving the time, date, location and, to the extent known, the agenda of any
regular, special or rescheduled meeting, which notice shall accurately state
whether formal action may or may not be taken[.]" N.J.S.A. 10:4-8(d).
A-1680-20
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Applying these principles here, we discern no basis for disturbing the trial
court's determination that the Borough complied with all of the Act's
requirements. The Borough gave the public notice of the meeting forty-eight
hours in advance, and the notice clearly stated the purpose of the event.
Contrary to plaintiff's bald assertion, the Borough did not deliberately set
the Zoom meeting capacity at too low a figure in order to bar members of the
public from participating in it. According to N.J.A.C. 5:39-1.4(a), a regulation
the DCA promulgated to provide guidance for the conduct of virtual meetings,
"[p]articipant capacity on the selected platform should be consistent with the
reasonable expectation of the public body for public meetings of the type being
held and shall not be limited to fewer than [fifty] public participants (beyond
those persons required to conduct business at the meeting)." The Borough clerk
certified that Council meeting attendance "averaged between [sixty] to [eighty-
five] people since the Borough began conducting the meeting using the [Zoom]
platform." Therefore, the Borough correctly began the meeting with a
participant limit of 100 individuals.
When this limit was reached approximately twenty minutes into the
meeting, the Council immediately stopped the meeting, and its staff increased
the limit to 500 individuals. During the interim period, the application advised
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anyone attempting to join the meeting to try again later. No further problems
occurred as the total number of participants at any one time never exceeded 334.
In addition, the Council did not conduct any business until the problem was
rectified. Under these circumstances, the trial court properly determined the
Borough did not violate the Act.
We also reject plaintiff's contention that the meeting notice did not
adequately apprise the public how to access the virtual meeting and how to make
public comments. The notice identified the Zoom link the public could use to
join the meeting, and it also provided a telephone number for those individuals
who preferred not to use a computer. As reflected in the meeting minutes, the
Council considered over two dozen public comments before voting on the
litigation settlements.
Plaintiff's argument that the Borough did not apprise the public the
meeting might result in resolution of the litigation also lacks merit. The meeting
notice specifically stated that "[p]otential resolutions on all matters discussed in
Executive Session including resolutions pertaining to the litigation matters
[involving FSHC and 800 Sylvan] . . . may be adopted when the Governing Body
reconvenes in open session" and that "[f]ormal action may be taken." Therefore,
A-1680-20
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the trial court correctly found that plaintiff's contention on this point lacked
merit.
We are also satisfied the trial court did not abuse its discretion by denying
plaintiff's request for an adjournment. See State v. D'Orsi, 113 N.J. Super. 527,
532 (App. Div. 1971). Contrary to plaintiff's assertion, it had not reached a final
settlement with the Borough, the individual Borough officials, or the two
intervenors prior to the January 11, 2021 oral argument. Therefore, there was
no basis for adjourning the proceeding. 3
Affirmed.
3
We also reject plaintiff's claim, raised for the first time on appeal, that the
attorney representing the individual Borough officials was barred by a conflict
of interest from representing them because he also previously represented the
Borough in this matter. We will ordinarily decline consideration of an issue not
properly raised before the trial court unless the jurisdiction of the court is
implicated, or the matter concerns an issue of great public importance. Nieder
v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Neither situation exists here
and, because plaintiff did not previously raise this issue, the record is plainly
insufficient to permit appellate review. Moreover, the Borough and the
individual officials all took the position that the Borough complied with all of
the provisions of the Act. Thus, plaintiff's allegation that there was a
disqualifying conflict of interest is belied by the record.
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