Warner Co. v. Sutton

• Decision Date: 24 February 1994
• Citation: 270 N.J.Super. 658,637 A.2d 960
• Parties: WARNER COMPANY, Plaintiff-Respondent, v. Barbara SUTTON, as Secretary to the Maurice River Township Planning Board; Maurice River Township Planning Board; Maurice River Township and Maurice River Township Committee, Defendants-Respondents, and New Jersey Conservation Foundation; New Jersey Audubon Society; and Citizens United to Protect the Maurice River and its Tributaries; Movants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 658

270 N.J.Super. 658

637 A.2d 960

WARNER COMPANY, Plaintiff-Respondent, v. Barbara SUTTON, as Secretary to the Maurice River Township Planning Board; Maurice River Township Planning Board; Maurice River Township and Maurice River Township Committee Defendants-Respondents and New Jersey Conservation Foundation; New Jersey Audubon Society; and Citizens United to Protect the Maurice River and its Tributaries Movants-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Jan. 20, 1994.

Decided Feb. 24, 1994.

Edward Lloyd, Newark, argued the cause for appellants (Rutgers Environmental Law Clinic, Newark, and Schneck, Price, Smith & King, Morristown, attorneys; Mr. Lloyd and Margaret M. Hayden, Newark, on the joint brief with James P. Wyse, Morristown).

John B. Kearney, Haddon Heights, argued the cause for respondent Warner Company (Kearney & Brady, P.C., attorneys; Mr. Kearney on the brief).

Richard H. Daniels, Millville, attorney for respondent Maurice River Township and Maurice River Township Committee, joins in the brief submitted on behalf of respondent Warner Company (Mr. Daniels on the letter in lieu of brief).

Seeley & Jones, P.A., Bridgeton, attorneys for respondent Maurice River Township Planning Board join in the brief submitted on behalf of respondent Warner Company (James J. Seely, on the letter in lieu of brief).

Before Judges HAVEY, A.M. STEIN and A.A. RODRIGUEZ.

The opinion of the court was delivered by

HAVEY, J.A.D.

In this zoning case, movants environmental groups sought post-judgment intervention for the purpose of appealing an amended consent order which memorialized a settlement between plaintiff Warner Company and defendants Maurice River Township Committee and Planning Board. The Law Division judge denied the motion, concluding that the application was untimely. We reverse. Because intervention was sought solely for the purpose of challenging the legality of the settlement and amended consent order on appeal, the motion should have been granted.

Warner and its subsidiary, New Jersey Silica Sand Company, own approximately 3,000 acres of land adjoining the Manumuskin Watershed in Maurice River Township. For many years Warner has engaged in the mining of sand on the site. In 1982, the property was zoned M-3, General Industrial. Mining was not a permitted use in the M-3 zone. Nevertheless, Warner continued its mining activity as a legal nonconforming use.

On October 20, 1988, the Township rezoned a portion of the M-3 district adjacent to the Manumuskin Watershed, including Warner's tract, to C-25, Conservation Zone. The C-25 district permits various uses, including residential development at one unit per twenty-five acres. Mining is neither a conditional nor permitted use.

In 1988, Warner applied to the Planning Board for a renewal of its license to continue its mining activity. The application was in part granted and in part tabled. On October 31, 1988, Warner filed an action in lieu of prerogative writs against the Township and Planning Board, alleging that the rezoning of its property from M-3 to C-25 constituted "spot zoning" and was an unlawful "taking" without just compensation. It also sought approval of its mining license, alleging that the Planning Board had not acted upon its application within ninety-five days.

Movants are nonprofit corporations having the declared purpose of protecting open spaces and the environment (such as the Manumuskin Watershed) and the preservation of wildlife. Many members of the movant groups reside in Maurice River Township. Some live adjacent to the Warner site. It is not disputed that representatives of the movant groups had knowledge of the pendency of the Warner-Township litigation.

After extensive discovery and negotiations, Warner and the Township defendants reached a tentative settlement which was memorialized in a June 24, 1991 consent order. Under the proposed agreement, the Township recognized Warner's nonconforming use status, and that it applied essentially to Warner's entire tract. Warner abandoned its challenge to the C-25 rezoning, and in turn was given a conditional right to construct a planned residential village on the tract.

There was spirited debate concerning the terms of the consent order. Defendant Planning Board objected to many of its terms. There is some evidence that several members of the movant groups participated in the debate during public hearings. The objections to the order made by the Planning Board were still not resolved by August 1, 1991. A revised settlement was thereafter reached between Warner and the Township defendants. An amended consent order was entered on August 22, 1991 memorializing the revised terms. At no time prior to the entry of the amended consent order did movants seek intervention.

The amended consent order, a thirty-six page document, provides Warner with a perpetual nonconforming-use status permitting the mining activity on its site. No conditional use permit "or other municipal approval" will be required by Warner or "its successors" under existing or "successor" ordinances as a condition to the mining activity. The order also provides that the abandonment of Warner's nonconforming use status "shall not be presumed ... unless Warner agrees in writing with the Township that the use has been abandoned...." Further, although the order does not expressly rezone the C-25 district, it provides that the Township's Zoning Map will note that Warner's tract "may be subject to Court Order" on file with the Planning Department. The order also grants Warner the right to develop an industrial complex on 250 acres, and a residential housing complex at a density which, according to movants, is greater than the C-25 density of one unit per twenty-five acres.

On October 7, 1991, movants filed a notice of appeal from the August 22, 1991 amended consent order. When Warner moved to dismiss the appeal, movants cross-moved seeking intervention in the Appellate Division. We remanded to the Law Division for consideration of movants' application to intervene, as well as their motion to "reopen" the amended consent order.

The Law Division judge denied the motions, finding they were not "timely" because movants had notice of the settlement discussions as early as July 10, 1991, and did not seek intervention despite their knowledge that the Township "was not representing their interests." The judge also observed that movants' motive in seeking to intervene was not simply to appeal the amended consent order, but "to start afresh, i.e., to litigate issues either raised or which they would raise in the pending litigation." He concluded that this "pronounced purpose to litigate such issues ... must be ... the primary reason for denial of the intervention."

Intervention as of right under Rule 4:33-1, requires the movant to:

(1) claim "an interest relating to the property or transaction which is the subject of the action," (2) show he is "so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest," (3) demonstrate that the "applicant's interest" is not "adequately represented by existing parties," and (4) make a "timely" application to intervene.

[Chesterbrooke Limited Partnership v. Planning Board of Tp. of Chester, 237 N.J.Super. 118, 124, 567 A.2d 221 (App.Div.), certif. denied, 118 N.J. 234, 570 A.2d 984 (1989) (quoting Vicendese v. J-Fad, Inc., 160 N.J.Super. 373, 378-79, 389 A.2d 1021 (Ch.Div.1978)).]

In the post-judgment setting, motions for intervention have received mixed treatment by our courts. Generally, intervention after judgment is allowed if necessary "to preserve some right which cannot otherwise be protected." Chesterbrooke, 237 N.J.Super. at 123, 567 A.2d 221; Township of Hanover v. Town of Morristown, 118 N.J.Super. 136, 142, 286 A.2d 728 (Ch.Div.), aff'd o.b., 121 N.J.Super. 536, 298 A.2d 89 (App.Div.1972), certif. denied, 62 N.J. 427, 302 A.2d 131 (1973). However, in Hanover, the Chancery Division denied an intervention motion made fourteen months after judgment, reasoning:

An essential prerequisite to intervention is timeliness, which should be equated with diligence and promptness. One who is interested in pending litigation should not be permitted to stand on the sidelines, watch the proceedings and express his disagreement only when the results of the battle are in and he is dissatisfied.

[118 N.J.Super. at 143, 286 A.2d 728.]

In contrast, we held in Chesterbrooke that objectors in a zoning case could intervene as of right for purposes of appealing a judgment which had granted an applicant automatic approval under N.J.S.A. 40:55D-61 of "flexible c(2) variances." See N.J.S.A. 40:55D-70c(2). We reasoned that when the defendant Planning Board decided not to appeal the final judgment, it no longer "adequately represented" objectors' interests; it left them so situated that "disposition of the action" would impair their ability to protect their interests. 237 N.J.Super. at 124-25, 567 A.2d 221. Since there was no one available to advance the objectors' positions through an appeal, intervention was mandated. Id. at 125, 567 A.2d 221. Also, we disagreed with the Law Division's finding that the objectors' motion was "simply too late," concluding that:

the judge did not consider the purpose of the intervention motion in relation to the stage in the action when the motion was made. See Clarke v. Brown, 101 N.J.Super. 404, 410-411 (Law Div.1968). See also, United States v. American Tel. and Tel. Co., 642 F.2d 1285, 1294 (D.C.Cir.1980). On the issue of timeliness, the court must consider the purpose for which intervention is sought. For example, if intervention is sought only for the limited purpose of taking an appeal, the only "prejudice to those already parties in the case" from granting intervention is the inherent "delay" necessarily involved in opposing the intervenor's appeal. 642 F.2d at...