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Structure Building Corp. v. Abella

May 13, 2005

STRUCTURE BUILDING CORPORATION F/K/A FORMATIVE CONSTRUCTION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
TOM ABELLA AND BARBARA GRUSKA, JOHN AND BETSY FUSEK, JOHN C. AND GWENDA HANSON; LARRY AND CAROL KLEVANS, WILLIAM C. AND LAURA LOWE, ALLEN AND PEGGY MEISELS, ANGELO AND LUCY WEBER, JOHN F. JENNINGS, CAROL B. CURRAN, AND WESLEY S. HOOVER, DEFENDANTS-RESPONDENTS, AND ELEANOR JENNINGS, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-161-01.

The opinion of the court was delivered by: Bilder, J.A.D. (retired and temporarily assigned on recall).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 25, 2005

Before Judges Petrella, Yannotti and Bilder.

This is an action for malicious abuse of process, malicious use of process, and tortious interference with prospective economic advantage brought by a developer, plaintiff Structure Building Corporation, against a group of homeowners who unsuccessfully fought its efforts to obtain Planning Board approval for the subdivision of neighboring property into six residential lots. Plaintiff's claims are based on legal actions challenging Board actions taken by the homeowners in opposing the subdivision. It appeals from an order of the Law Division granting defendants a summary judgment and dismissing the complaint with prejudice.

I.

Briefly stated, when plaintiff sought approval of the sixlot subdivision, defendants, represented by one of their number who is an attorney, joined in opposition.*fn1 The activity upon which plaintiff's suit is based consisted of opposition before the Board, three prerogative writ actions challenging Board action, and the filing of a cross appeal in response to an appeal by the Board.

Initially, on May 1, 1996, a Board vote on a motion to approve the application, following six public meetings, resulted in a tie vote. Apparently several Board members would not vote without being supplied with what they considered missing elements of the required environmental impact statement.

On May 15, 1996, despite correct advice by defendants' attorney that as a matter of law the application had been denied by the earlier tie vote*fn2, the Board passed a resolution that only denied plaintiff's request for a waiver of the requirement for a complete environmental impact statement and set June 19, 1996 as a new date to consider plaintiff's application. This led to the filing of defendants' first prerogative writ action in which they challenged the May 15 action and sought an order requiring the Board to pass a resolution of denial in accordance with the May 1 vote. The court agreed with defendants' position but said it would permit the Board to consider an application by plaintiff for reconsideration or rescission of the earlier action.

Thereafter, on July 10, 1996 the Board passed two resolutions: one denying plaintiff's subdivision application and rescinding the May 15 resolution and a second granting plaintiff's application for reconsideration and setting a hearing on plaintiff's amended economic impact statement for August 14, 1996. These resolutions were memorialized by the Board at a July 17, 1996 meeting.

On August 14, 1996 the Board considered plaintiff's amended economic impact statement, unanimously voted to approve the subdivision application, and scheduled the Resolution of Memorialization for the Board's September 4, 1996 meeting. This led to the filing of defendants' second prerogative writ action in which they challenged the Board's July 10 and 17 actions as ultra vires because they involved the original denied applications and not a new application, were not the subject matter of a hearing, and were arbitrary, capricious and unreasonable.

On September 4, 1996 the Board unanimously adopted a resolution granting plaintiff's application subject to certain conditions, one of which required determinations by municipal authorities with respect to screening and landscaping of the property. This led to the filing of defendants' third prerogative writ action in which they challenged the Board's September 4 action on a number of grounds: improper delegation of powers to the Municipality with respect to screening and landscaping; approval of the drainage plans without sufficient information; approval of the application while the amended environmental plan was still incomplete; ...


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