JSTAR, LLC v. Brick Twp. Zoning Bd. of Adjustment
| Decision Date | 04 June 2020 |
| Docket Number | DOCKET NO. A-0858-18T2 |
| Parties | JSTAR, LLC, Plaintiff-Appellant, v. BRICK TOWNSHIP ZONING BOARD OF ADJUSTMENT, and RTS IV, LLC, a/k/a JOSEPH R. PRESTIFILIPPO, JR., Defendants-Respondents. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Rothstadt, Moynihan and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-0389-18.
R.C. Shea & Associates, PC, attorneys for appellant (Robert C. Shea, of counsel and on the briefs; Dina M. Vicari and Robert C. Shea II, on the briefs).
Weiner Law Group LLP, attorneys for respondent Brick Township Zoning Board of Adjustment (Ronald D. Cucchiaro, of counsel and on the brief; Richard Brigliadoro, on the brief).
King Kitrick Jackson McWeeney & Wells, LLC, attorneys for respondent RTS IV, LLC (John J. Jackson, III, of counsel and on the brief; Jilian L. McLeer, on the brief).
Defendant RTS IV, LLC (RTS) sought preliminary and final major subdivision approval, design waivers and variance relief from defendant Brick Township Zoning Board of Adjustment (Board) (collectively defendants) to permit construction of single-family homes and ancillary improvements. The owner of an adjacent property, plaintiff JSTAR, LLC, objected and, prior to the completion of Board action on the application, filed a complaint in lieu of prerogative writs alleging the Board's violations of the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-1 to -21, rendered any Board action in 2018 void.1 Plaintiff appeals from the trial court's orders granting defendants' motions for summary judgment, dismissing plaintiff's complaint with prejudice, and denying plaintiff's cross-motion for summary judgment and, similarly, dismissing its complaint with prejudice.
Plaintiff's present arguments center on the Board's failure to publish adequate notice of its January 3, 2018 reorganization meeting and its January 17, 2018 regular meeting. In its merits brief, plaintiff contends:
We agree the Board's multiple failures to comply with the OPMA require reversal of the trial court's orders and remand to the Board for proceedings consistent with this decision.
The Board conducted its reorganization meeting on January 3, 2018, at which it adopted a revised 2018 annual meeting schedule and appointed the Board chairman, vice chairman, secretary, attorney, engineer, court reporter and conflict planner. RTS's application was not considered at the meeting.
At the January 17, 2018 regular meeting, the Board chairman announced RTS's application would not be heard because the meeting was not properly noticed, and would be carried to a special meeting on January 31, 2018.2
At the January 31 meeting, plaintiff's counsel challenged the Board's jurisdiction. Specifically, he noted the earlier January meetings were not included in the 2017 annual meeting schedule that was published only in the Asbury Park Press (The Press). He also observed that notice of those early-January meetings appeared only in the annual meeting schedule published in a January 18, 2018 edition of The Press—after the meetings were held. Though counsel conceded proper notice was provided for the January 31 meeting, he argued to the Board that its failure to comply with the OPMA provisions regarding newspaper notice of the two earlier meetings in January rendered any actions at those meetings as well as the January 31 meeting voidable.
The Board's counsel agreed that the annual meeting schedule that included the early-January meetings was published on January 18, only in The Press. However, because notices of both those meetings were posted on the bulletin board at the Board's meeting place and on the internet, and was sent by email toThe Press on January 12, he opined the Board "did meet the requirement for adequate notice [under the OPMA], except for [the requirement that notice be mailed to] the two newspapers." He commented those steps constituted "substantial compliance" with the OPMA, and invalidation of the Board's actions was not warranted.
Plaintiff filed its complaint in the instant matter on February 16, 2018. The Board published notice of a February 21, 2018 special meeting3 in The Press and The Ocean Star; the notice stated the Board was going to readopt its 2018 meeting dates. A transcript of that meeting was not provided in the appeal record. In its merits brief, however, plaintiff admits the Board readopted its 2018 annual meeting schedule; the record reflects the schedule was published on February 27, 2018,4 only in The Press. The Board, in its merits brief, avers RTS's application was not heard at that meeting.
The record contains only partial transcripts of the Board's August 15, 2018 and September 5, 2018 regular meetings. The August 15 transcript reflects the ostensible readoption of the Board's "appointment of officers and professionalsto 2018[.]" The September 5 transcript reflects the Board's approval of "resolutions to reappoint [its] attorney and . . . professionals," including the reappointment of the Board's engineer, planner, court reporter, and the reappointment of the Board chairman, vice chairman and secretary. The record reflects notice of both the August 15 and September 5 meetings were published in only one newspaper.
We review the trial court's summary judgment decision de novo, applying the same legal standard as the trial court. Wakefern Food Corp. v. Liberty Mut. Fire Ins. Co., 406 N.J. Super. 524, 538 (App. Div. 2009). Thus, we consider "whether the evidence presents a sufficient disagreement to require submission to a jury [or trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). If there is no genuine issue of material fact, we decide "whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Notwithstanding the trial court's finding that the Board rectified its failure to include the January 3 and January 17, 2018 regular meetings in the annual meeting schedule by publishing same "later on in the month" in both The Press and The Ocean Star, the appellate record reveals that the annual meeting schedule published on January 18, 2018, was published only in The Press. Even when the schedule was readopted in February 2018, it was again published only in The Press. N.J.S.A. 10:4-18 requires that a public body, such as the Board, mail the annual meeting notice to at least two newspapers designated by the public body pursuant to N.J.S.A. 10:4-8(d)(2).5 We see no proof that the annual meeting notice was mailed to The Ocean Star. Thus, there was no advance notice of the January 3 and January 17, 2018 meetings.
Absent notice under N.J.S.A. 10:4-18, a public body must give "adequate notice" of a meeting in compliance with N.J.S.A. 10:4-8(d), which provides in pertinent part: "'Adequate notice' means written advance notice of at least[forty-eight] hours, giving the time, date, location and, to the...
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