Opinion
DOCKET NO. A-3191-11T1
02-01-2013
SIDNEY S. KANTER, Plaintiff-Appellant, v. THE BOARD OF ADJUSTMENT OF THE BOROUGH OF WALLINGTON, a body politic of the State of New Jersey, LIBERTY PLAZA, LLC, and KENNETH KANTER, Defendants-Respondents. KENNETH KANTER, Plaintiff-Respondent, and SIDNEY S. KANTER, Plaintiff-Appellant, v. THE MUNICIPAL COUNCIL OF THE BOROUGH OF WALLINGTON, THE BOARD OF ADJUSTMENT OF THE BOROUGH OF WALLINGTON, bodies politic of the State of New Jersey, and LIBERTY PLAZA, LLC, Defendants-Respondents.
Sidney S. Kanter, appellant, argued the cause pro se. Craig P. Bossong argued the cause for respondent The Municipal Council of the Borough of Wallington (Florio, Perrucci, Steinhardt & Fader, LLC, attorneys; Mr. Bossong, on the brief). Elliot W. Urdang argued the cause for respondent Liberty Plaza LLC. Fishman McIntyre, P.C., attorneys for respondent The Board of Adjustment of the Borough of Wallington (Martin S. Cedzidlo, on the brief). Kenneth Kanter, respondent pro se, has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli, Koblitz and Accurso.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket Nos. L-7729-08 and L-4365-09.
Sidney S. Kanter, appellant, argued the cause pro se.
Craig P. Bossong argued the cause for respondent The Municipal Council of the Borough of Wallington (Florio, Perrucci, Steinhardt & Fader, LLC, attorneys; Mr. Bossong, on the brief).
Elliot W. Urdang argued the cause for respondent Liberty Plaza LLC.
Fishman McIntyre, P.C., attorneys for respondent The Board of Adjustment of the Borough of Wallington (Martin S. Cedzidlo, on the brief).
Kenneth Kanter, respondent pro se, has not filed a brief. PER CURIAM
In these prerogative writs matters, plaintiff Sidney Kanter appeals from the February 1, 2012 amended judgment, which affirmed the decision of respondent the Municipal Council of the Borough of Wallington (Council) to affirm the decision of respondent the Board of Adjustment of the Borough of Wallington (Board) to grant variance relief to respondent Liberty Plaza, LLC (Liberty). On appeal, plaintiff contends that the Board lacked jurisdiction to conduct hearings on Liberty's application because the Board violated the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, by not providing the public with adequate notice of and an agenda for the hearings as required by N.J.S.A. 10:4-8.
Plaintiff also appeals from the September 17, 2010 order, which denied his motion to take limited scope depositions; the December 7, 2010 order, which denied his motion for reconsideration; and the March 17, 2011 case management order, which ended discovery. He also contends the trial judge was biased, the proceeding was tainted, and the Council's hearing on plaintiff's appeal of the Board's decision was invalid. We affirm.
Plaintiff also appealed from two Law Division orders, which denied his motions to disqualify the Board's attorney from representing the Board in the underlying litigation. Plaintiff did not address this issue in his merits brief. The issue is therefore deemed waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 2:6-2 (2013).
The OPMA requires as follows:
At least once each year, within 7 days following the annual organization or reorganization meeting of a public body, or if there be no such organization or reorganization meeting in the year, then by not later than January 10 of such year, every public body shall post and maintain posted throughout the year in the place described in [N.J.S.A. 10:4-8d(1)], mail to the newspapers described in [N.J.S.A. 10:4-8d(2)], submit to the persons described inOn February 13, 2008, the Board posted the following resolution concerning its schedule of regular meetings for 2008 and published it in the designated newspaper:
[N.J.S.A. 10:4-8d(3)], for the purpose of public inspection a schedule of the regular meetings of the public body to be held during the succeeding year. Such schedule shall contain the location of each meeting to the extent it is known, and the time and date of each meeting. In the event that such schedule is thereafter revised, the public body, within 7 days following such revision, shall post, mail and submit such revision in the manner described above.
[N.J.S.A. 10:4-18 (emphasis added).]
NOW, THEREFORE, BE IT RESOLVED, by the Zoning Board of the Borough of Wallington that the Borough Clerk of the Borough of Wallington publish the following list of monthly meetings for the calendar year 2008 in accordance with the Open Public Meeting Act:There is no dispute that the Board posted and published the resolution eight days late setting its calendar.
January 29, 2008Executive sessions will be held at 7:00 p.m. followed by regular public meeting at 7:30 p.m. All meetings to be held at the Municipal Building, 54 Union Boulevard, Wallington, NJ[.]
February 26, 2008
March 25, 2008
April 29, 2008
May 27, 2008
June 24, 2008
July 29, 2008
August 26, 2008
September 30, 2008
October 28, 2008
November 25, 2008
December 30, 2008
Liberty owned property located on Main Avenue in the Borough's light industrial zone where retail use was not permitted. The Mayor of Wallington and his wife owned a fifty percent interest in Liberty. Sometime prior to May 27, 2008, Liberty filed an application with the Board for variance relief to permit retail use of the property. At that time, the Mayor's son was the chairman of the Board. He recused himself from considering Liberty's application.
Plaintiff and his brother, respondent Kenneth Kanter (Kenneth), who had a business office located near the property, objected to Liberty's application. Kenneth also resided in Wallington and was a Council member at the time the Council considered plaintiff's appeal of the Board's grant of variance relief to Liberty.
The Board had originally listed Liberty's application for consideration at its May 27 and June 24, 2008 meetings and notified property owners within two hundred feet of Liberty's property as required by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. However, it was not until the July 29, 2008 meeting that the Board began hearings on the application. Plaintiff appeared pro se at the hearing and Kenneth appeared with counsel, who cross-examined witnesses. The Board adjourned the hearing to August 26, 2008.
The Board adjourned both meetings without considering Liberty's application.
Plaintiff appeared pro se at the August 26, 2008 hearing. Kenneth appeared with counsel, who cross-examined Liberty's witnesses and presented the direct testimony of Kenneth's expert. The Board then adjourned the hearing to October 28, 2008. The expert never returned for cross-examination.
On October 8, 2008, plaintiff filed a pro se complaint in lieu of prerogative writs, alleging the Board had violated the OPMA by failing to provide adequate notice of its 2008 meeting dates (the OPMA complaint). He sought injunctive relief, and to void the Board's hearings on Liberty's application and compel a new hearing.
On October 20, 2008, plaintiff filed an amended complaint joining Liberty as a defendant.
Plaintiff appeared at the next hearing date on October 28, 2008, and announced the hearing was illegal and could not proceed because the Board failed to post an agenda within forty-eight hours as required by N.J.S.A. 10:4-8. The Board determined it had complied with the OPMA because it had posted and published notice of the hearing dates on February 13, 2008. The Board then heard from members of the public, and concluded the hearing. On November 25, 2008, the Board passed a resolution granting Liberty variance relief.
Plaintiff does not challenge the merits of the Board's decision in this appeal.
Plaintiff and Kenneth appealed the Board's decision to the Mayor and Council pursuant to N.J.S.A. 40:55D-17. Plaintiff and Kenneth appeared pro se and participated in the Council's hearing on March 9, 2009. Prior to the start of hearing, the Mayor and Borough attorney recused themselves, and the Mayor directed outside counsel, Keith Barrack, Esq. (Barrack), to preside over the hearing.
Kenneth recused himself as well.
On March 26, 2009, the Council passed a resolution affirming the Board's decision and granting Liberty variance relief. The resolution contained a review of the testimony presented to the Board and the Council's factual findings and legal conclusions based on that testimony.
Plaintiff and Kenneth then filed a complaint in lieu of prerogative writs. They alleged that the Board violated the OPMA by failing to provide adequate notice of its 2008 meeting dates. They also alleged that the Board's and Council's decision did not comply with the MLUL and the Borough's zoning ordinances, the Council members did not read the transcripts of the Board's hearings, and the Board's and Council's resolutions contained erroneous or deficient factual findings and conclusions.
The court later consolidated this complaint with the OPMA complaint.
By July 29, 2010, discovery had been extended three times. On that date, plaintiff filed a pro se motion for an order permitting the depositions of all Board members and the Board's attorney, whom plaintiff claimed were present at all of the 2008 executive sessions. In a September 17, 2010 order and written opinion, the trial judge denied the motion as premature because the court had not yet determined that the Board had violated the OPMA. The judge also denied the motion because it was overly broad and not reasonably calculated to address the facts of the complaint.
Plaintiff filed a motion for reconsideration. In a December 7, 2010 order and written opinion, the judge denied the motion, finding that plaintiff presented nothing new to warrant reversal of the prior ruling. The matter was subsequently assigned to a different judge. The new judge entered a case management order on March 17, 2011, which ended discovery and set a trial date.
On June 8, 2011, plaintiff filed a pro se motion, seeking an "Order for an Order of Mandamus" commanding the Board to keep minutes of the executive sessions. On July 8, 2011, the judge entered an order granting the motion, but he did not sign the "Order of Mandamus" that plaintiff had submitted with his motion papers. Plaintiff then filed a pro se motion to recuse the judge, alleging bias based on the judge's refusal to sign the "Order of Mandamus."
Plaintiff appeared at the trial on August 22, 2011, and Kenneth appeared with counsel. Prior to the start of the trial, the judge heard oral argument on plaintiff's recusal motion. The judge denied the motion, finding that plaintiff failed to establish bias or any other reason for recusal. The trial then began. Plaintiff only addressed the alleged OPMA violations. He argued that because the Board violated N.J.S.A. 10:4-18 by not timely posting and publishing notice of its 2008 meeting dates, N.J.S.A. 10:4-8, required it to post and publish forty-eight hours advance notice of and an agenda for the hearings on Liberty's application. He also argued the Board failed to keep minutes of the executive sessions; however, he presented no authority indicating this constituted an OPMA violation.
Kenneth only addressed the Council's actions. He argued that Barrack had improperly presided over the Council hearing as a hearing officer.
Kenneth raised other arguments not relevant to this appeal.
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In a February 1, 2012 amended judgment and written opinion, the judge found that Barrack did not act as a hearing officer during the Council's hearing and Barrack made no findings. The judge also found that the record supported the Council's factual findings and legal conclusions, and the Council's decision complied with the MLUL.
Addressing plaintiff's OPMA argument, the judge found there was no evidence of any executive sessions that concerned Liberty's application. He found that the late posting of notice of the 2008 meeting dates violated N.J.S.A. 10:4-18; however, he concluded this was a technical, de minimus violation that "was not so late" as to have any material effect upon the Board's hearing because the hearing did not commence until four months after the posting. He also found the Board had notified property owners within two hundred feet in accordance with the MLUL, and plaintiff and Kenneth "clearly knew" of the hearings concerning Liberty's application because they attended and participated. The judge held that the technical violation did not warrant voiding the Board's decision. This appeal followed.
We first address plaintiff's contention that the Board lacked jurisdiction to conduct the hearings on Liberty's application because it failed to provide adequate notice of and an agenda for the hearings, as requried by N.J.S.A. 10:4-8.
Our Legislature has declared it to be the public's right "to be present at all meetings of public bodies" and to have "adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way." N.J.S.A. 10:4-7. Except in limited circumstances, "no public body shall hold a meeting unless adequate notice thereof has been provided to the public." N.J.S.A. 10:4-9. The OPMA defines "adequate notice" as follows:
"Adequate notice" means written advance notice of at least 48 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 and which shall be (1) prominently posted in at least one public place reserved for such or similar announcements, (2) mailed, telephoned, telegrammed, or hand delivered to at least two newspapers which newspapers shall be designated by the public body to receive such notices because they have the greatest likelihood of informing the public within the area of jurisdiction of the public body of such meetings, one of which shall be the official newspaper, where any such has been designated by the public body or if the public body has failed to so designate, where any has been designated by the governing body of the political subdivisionIf the public body has complied with the annual notice requirements of N.J.S.A. 10:4-18, it is not required to comply with the requirements of N.J.S.A. 10:4-8, including the posting of an agenda. Witt v. Gloucester Cnty. Bd. of Chosen Freeholders, 94 N.J. 422, 432-33 (1983).
whose geographic boundaries are coextensive with that of the public body and (3) filed with the clerk of the municipality when the public body's geographic boundaries are coextensive with that of a single municipality, with the clerk of the county when the public body's geographic boundaries are coextensive with that of a single county, and with the Secretary of State if the public body has Statewide jurisdiction. For any other public body the filing shall be with the clerk or chief administrative officer of such other public body and each municipal or county clerk of each municipality or county encompassed within the jurisdiction of such public body. Where annual notice or revisions thereof in compliance with [N.J.S.A. 10:4-18] of this act set forth the location of any meeting, no further notice shall be required for such meeting.
[N.J.S.A. 10:4-8d.]
Here, on February 13, 2008, the Board posted and published notice of its 2008 regular meetings dates, containing the location and time of each meeting, and notified property owners of Liberty's application in accordance with the MLUL. We are satisfied that the notice was timely posted and published with respect to the hearings concerning Liberty's application, and therefore the Board was not required to comply with N.J.S.A. 10:4-8d. Accordingly, the Board had jurisdiction to conduct the hearings.
We have considered plaintiff's remaining contentions in light of the record and applicable legal principles and conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by the trial judge in his February 1, 2012 written opinion. However, we make the following brief comments.
There was no OPMA violation with respect to the executive sessions, and thus, no need for minutes or depositions. At oral argument of this appeal, plaintiff admitted the executive sessions were open to the public and he could have attended. See Hudanich v. Avalon, 183 N.J. Super. 244, 257 (App. Div. 1981) (finding no OPMA violation where the public had the opportunity to attend executive sessions and the Board members did not convene in private).
Barrack was not acting as the mayor or a hearing officer at the Council's hearing on plaintiff's appeal of the Board's decision. See N.J.S.A. 40:69A-42 (requiring the mayor to "designate the business administrator, any other department head, or the municipal clerk to act as mayor whenever the mayor shall be prevented by absence from the municipality, disability or other cause from attending to the duties of his office."). Barrack merely presided over the hearing after the recusal of the Mayor and Borough attorney, and he made no factual findings or legal conclusions and did not cast a vote.
Except to challenge Barrack's involvement in the Council's hearing, plaintiff did not address the merits of the Council's decision. Thus, that issue is deemed waived. Sklodowsky, supra, 417 N.J. Super. at 657; Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 2:6-2 (2013).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION