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Allied Realty v. Borough of Upper Saddle River

Decided: November 30, 1987.

ALLIED REALTY, LTD., PLAINTIFF-APPELLANT,
v.
BOROUGH OF UPPER SADDLE RIVER AND THE PLANNING BOARD OF THE BOROUGH OF UPPER SADDLE RIVER, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Bergen County.

Dreier and Baime. The opinion of the court was delivered by Baime, J.A.D.

Baime

Plaintiff Allied Realty, Ltd. (Allied) appeals from a judgment of the Superior Court, Law Division, sustaining the action of defendant Upper Saddle River Planning Board (Board) denying its application for minor subdivision approval.*fn1 The trial judge upheld the Board's determination that Allied's application was barred by the doctrine of res judicata and collateral estoppel. On appeal, Allied contends that the trial judge incorrectly accorded preclusive effect to a prior resolution of the Board dealing with the same property. Allied further argues that the Board failed to take timely action in accordance with the provisions of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 et seq., and, therefore, the trial judge should have deemed its application to have been automatically approved.

Unfortunately, the salient facts are somewhat complex. Allied is the owner of property located at 75 Brookside Drive, Upper Saddle River -- also known as Lots 1 and 3, Block 1014 on the current tax assessment map of that borough. In 1978, Lot 1 was zoned commercial in its entirety, but Lot 3 was partially within the residential and commercial zones. Allied wished to develop the property and thus applied for site plan approval. In its application, Allied proposed to construct an 8,000 square foot building with appurtenant parking on all of Lot 1 and on the commercially zoned portion of Lot 3.

On September 28, 1978, the Board adopted a resolution granting site plan approval. In its findings, the Board recited:

3. The applicant, by its own choice, has determined that it wishes to consolidate Lots 1 and 3 and to construct a commercial building utilizing all of the commercially-zoned property and not to use the balance of the lot for any structures. [Emphasis added].

The meaning of this language is not altogether clear. According to Peter J. Odo, a member of the Board, this finding was intended to convey the understanding of the parties that site plan approval was conditioned upon Allied's promise not to develop the remainder of Lot 3. In direct contrast, Anthony Salafia, chairman of Allied, testified that, under the resolution, no additional commercial structures could be built on the portion of the lot zoned residential. The record of the proceedings before the Board has not been submitted to us. We note, however, that, in the resolution, the Board's approval of the site plan is expressly made subject to several specific conditions and no mention is made of the understanding that the balance of Lot 3 would not be further developed.

In any event, in June 1985, Allied sought subdivision approval for the Brookside Drive property in order to develop that portion of the lot in the residential zone. In its application, Allied also requested a bulk variance because the lot was undersized. On June 12, 1985, Allied hand-delivered to the Board its application for subdivision approval, together with filing, legal and engineering escrow fees.

The application was initially considered by the Board at its regularly scheduled work session on July 16, 1985. What ensued at the meeting is subject to considerable debate and interpretation. It is undisputed that Mr. Odo, at the very outset, noted his objection to the Board's consideration of Allied's application, which he contended was barred by the prior resolution granting site plan approval. It is uncontradicted that the Board adopted Mr. Odo's position and considered its prior resolution as preclusive and this determination was unmistakenly conveyed to Mr. Salafia. According to Mr. Odo, the

chairman told Mr. Salafia that Allied's application was denied "in view of the 1978 resolution." He testified that someone used the expression "case closed." This was corroborated by Mr. Salafia who testified that the chairman stated the "application [is] denied." According to Mr. Salafia, this was followed by the chairman's comment that the "case [was] closed."

Much of the testimony at trial concerned whether Allied requested a public hearing. Although this was a hotly contested issue, the record remains largely ambiguous. Mr. Salafia testified that after the Board denied Allied's application, either he or Allied's attorney asked whether there was a right to a public hearing. According to Mr. Salafia, the chairman then "turned to the [clerk]" and instructed her "to [schedule] a hearing." Mr. Salafia testified that, as he left the meeting, it was his impression that Allied's application remained pending and that he would later be advised of the date of the public hearing.

In his testimony, Mr. Odo agreed that after the Board denied Allied's application, either Mr. Salafia or Allied's attorney asked whether there was a right to a public hearing. At this point, however, Mr. Odo's account of what transpired diverges from that of Mr. Salafia. According to Mr. Odo, the chairman responded that Allied was "entitled to a hearing." Allied's attorney then replied, "Is that all there is?" Mr. Odo testified that the chairman commented, "That's it unless you want to do something else," at which point Mr. Salafia and Allied's attorney left the meeting. It is abundantly clear from the record that the Board was of the view that the matter had been concluded and that Allied did not intend to pursue it further.

The matter remained dormant until August 27, 1985. On that date, Allied's attorney wrote to the Board and requested that a public hearing be scheduled. The Board responded by erroneously stating that no formal application had been filed. Upon receipt of this response, counsel for Allied ...


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