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Dell''Aquila v. Board of Adjustment

Decided: May 18, 1988.


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

Furman, Long and Scalera. The opinion of the court was delivered by Scalera, J.A.D.


Plaintiff, Anthony Dell'Aquila filed this action in lieu of prerogative writs challenging the Hoboken Board of Adjustment's (Board) grant of a use variance and final site plan approval to intervenors, Daniel Gans and George Vallone. They had sought the approval of the Board to build a high rise residential condominium complex on property in a waterfront industrial zone presently containing a substantially vacant warehouse. Plaintiff is the owner of property located across the street and objects, arguing that the proposed construction will adversely affect the value of his property and obstruct his view.

A brief resume of the history of this case is warranted. In 1984, Doris Palumbo, wife of intervenor, Frederick L. Woeckener, invested with Gans and Vallone, principals of Westbank Construction Company (Westbank) a sum of money she had received as a result of a personal injury claim. The money was used as a down payment on the property in question located at 1601 Willow Avenue in Hoboken. The parties to the venture agreed that Palumbo was to receive a portion of the profits from the development of the property pursuant to a written partnership or joint venture agreement which would be negotiated at a later time. In furtherance of the plan, Palumbo

entered into a contract with Frank Lambie Realty Company, to buy the property, contingent upon obtaining a variance allowing construction of high rise residential units. She assigned her interest in that contract to Gans and Vallone to effectuate their application to the Board for the necessary variance and site plan approval.

The future partnership, contingent upon approvals by the Board was memorialized in a written memorandum wherein Palumbo was to receive a $2,750,000 return on her advance of $275,000 or, at her option, 20% of the net profits. However, if the net profits were less than $5.5 million then Palumbo and Westbank would split the profits equally. Her minimum return was later raised to $3,000,000 based on her having negotiated an extension of the closing date on the contract to purchase the property. Palumbo's interest in the property was not disclosed to the Board in the application or otherwise.

The Board conducted a hearing on the application on January 10, 1985. Frank P. Marciano appeared as attorney for the applicants and Peter G. Mangin appeared for Dell'Aquila, who was objecting. Mangin unsuccessfully objected to the jurisdiction of the Board, based on failure to comply with the notice provision of N.J.S.A. 40:55D-12 and also because disclosure of partnership percentages had not been made as required by N.J.S.A. 40:55D-48.1.

Testimony was given by Frank Lambie; Gregory Sholom, a real estate agent who was unsuccessful in leasing the warehouse; Ruth Weiss, a planning expert; Theodore Strauss, a licensed architect; Jerome Fine, a consulting engineer; and Joseph M. Lynch, a traffic planning expert. Thereafter, the variance and site plan were approved unanimously and a resolution was signed on January 21, 1985.

Dell'Aquila instituted this action on February 22, 1985, seeking to set aside the Board's approval. Gans and Vallone were permitted to intervene in the action and a pretrial conference was scheduled before Judge Walter J. Hudzin for September 17, 1985.

On June 27, 1985, Linda P. Torres, attorney for Gans and Vallone wrote to Christian Stueben, then attorney for Dell'Aquila, stating that she had been informed by her clients that the suit had been resolved and she enclosed a copy of a stipulation of dismissal. She indicated that she was forwarding the original release to her clients for presentation directly to Dell'Aquila but enclosed a copy for Stueben. On September 16, 1985 Torres sent a letter to Peter Daghlian, attorney for the Board, requesting that he sign the stipulation and return it to her for filing with the court. A copy of this letter was sent to Stueben. Torres had previously informed Judge Hudzin that they would not be attending the scheduled hearing because the matter had been settled. The stipulation of dismissal was filed with the court by her on September 23, 1985.

However, a weekly calendar call notice for February 21, 1986 was issued notwithstanding the filing of the stipulation of dismissal. A conference with the court was then held on March 24, 1986 at which time Dell'Aquila vehemently denied that he had consented to have his suit dismissed. He then filed a motion seeking to have the case restored to the active trial calendar and submitted a supporting affidavit to the effect that he never resolved or negotiated a settlement of the dispute with Vallone or Gans, that they had never presented him with any release to sign nor had he ever seen any copy which had been forwarded to his attorney. Stueben's certification indicated that his office had mistakenly signed his name to the stipulation and returned it to Torres but that he understood that the stipulation would not be effective or filed in any event until the original release had been signed by his client. Woeckener's certification recounted that he had had a lengthy luncheon meeting with ...

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