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Catalpa Investment Group Inc. v. Franklin Township Zoning Board of Adjustment

Decided: November 22, 1991.

CATALPA INVESTMENT GROUP, INC., PLAINTIFF,
v.
FRANKLIN TOWNSHIP ZONING BOARD OF ADJUSTMENT AND TOWNSHIP COUNCIL OF THE TOWNSHIP OF FRANKLIN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS



SOMERSET COUNTY

Arnold, P.J.Cv.

Arnold

ARNOLD, P.J.Cv.

What is the scope of pretrial discovery in an action in lieu of prerogative writs challenging the denial of a use variance? In this action, plaintiff seeks to depose the members of the Franklin Township Board of Adjustment (board). In addition, plaintiff has served a notice to produce various documents and propounded 17 interrogatories on the board. The board now seeks a protective order, pursuant to R. 4:10-3, directing that "plaintiff cease and desist from discovery activities."

The material facts are as follows. Plaintiff applied to the board for a use variance. The board denied the application, finding that it lacked jurisdiction. The board's resolution reciting the reasons for the denial states that the board relied on the decision in Dover Tp. v. Dover Tp. Bd. of Adj., 158 N.J. Super. 401, 386 A.2d 421 (App.Div.1978). The decision in that case set forth the factors to be considered in deciding whether a use variance would so substantially alter the character of a district as that character is prescribed by the zoning ordinance as to preclude a board of adjustment from granting the variance. Id. at 412-413, 386 A.2d 421. In this lawsuit, plaintiff seeks a declaration that the board has jurisdiction to rule on plaintiff's application.*fn1

The notice to take oral depositions does not, of course, specify the subjects on which the board members are to be examined. However, the notice to produce requires the board to produce

Copies of any and all documents pertinent to the plaintiff's application which is the subject of this litigation including, but not limited to, all minutes of

meetings in which the application was discussed and all maps, charts, memoranda, letters, surveys, regulations, reports and photographs the Zoning Board relied upon in considering said application.

The interrogatories propounded by plaintiff are broad in scope and will be discussed below.

In considering the board's application for a protective order, this court begins with the principle that pretrial discovery is afforded the broadest possible latitude and extends not only to relevant information but also to any information that might lead to the discovery of relevant information. Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 216, 521 A.2d 872 (App.Div.1987). Nevertheless, there are exceptions to this principle. Rule 4:10-3 provides that a party from whom discovery is sought may apply for a protective order which shall be granted for "good cause shown." However, no case decided by our New Jersey courts discusses what factors should be considered in determining whether "good cause" has been shown. This court holds that the following factors should be considered. The first two relate to the third, which relates to the scope of pretrial discovery.

1. The nature of the lawsuit and the issues raised by the pleadings;

2. The substantive law likely to be applied in the resolution of the issues raised by the pleadings.

3. The kind of evidence which could be introduced at the trial, and the likelihood of it being discovered by the pretrial discovery procedure which is the subject of the application for a protective order.

4. Whether trade secrets, confidential research, or commercial information are sought in the discovery procedure employed, whether they are material and relevant to the lawsuit, and whether a protective order will insure appropriate confidentiality. See, e.g., In re Solid Waste Utility Customers Lists, 106 N.J. 508, 524 A.2d 386 (1987); Martin v. Educational

Testing Service, Inc., 179 N.J. Super. 317, 431 A.2d 868 (Ch.Div.1981).

5. Whether the pretrial discovery seeks confidential information about persons who are not parties to the lawsuit. See, e.g., Berrie v. Berrie, 188 N.J. Super. 274, 457 A.2d 76 (Ch.Div.1983). See also Valley Bk. of Nev. v. Superior Court of San ...


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