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O'Shea v. West Milford Township Planning Board

December 20, 2006

MARTIN O'SHEA, PLAINTIFF-APPELLANT,
v.
WEST MILFORD TOWNSHIP PLANNING BOARD, BOARD OF EDUCATION OF WEST MILFORD TOWNSHIP, WEST MILFORD TOWNSHIP COUNCIL, BRYANT GONZALEZ AND KEVIN J. BYRNES, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-3330-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 6, 2006

Before Judges Stern and Lyons.

Plaintiff, Martin O'Shea, sued the West Milford Township Planning Board (the Board), the West Milford Township Board of Education, the West Milford Township Council, Bryant Gonzalez and Kevin J. Byrnes for violating the Open Public Meetings Act, N.J.S.A. 47:1A, et seq., the Open Public Records Act, N.J.S.A. 10:46, et seq., and the common law, seeking declaratory and injunctive relief and costs. Plaintiff settled with all defendants except the Board. Plaintiff and the Board cross-moved for summary judgment and the trial court dismissed plaintiff's complaint without costs and ordered the Board's counsel to supply its members with a copy of the trial court's opinion, as well as to provide a copy to plaintiff. Plaintiff, citing various allegations of error by the trial court, appeals. We affirm.

On November 3, 2005, plaintiff moved for summary judgment against the Board. The Board filed a cross-motion for summary judgment on November 22, 2005. On December 2, 2005, the trial court entered an order dismissing plaintiff's complaint without costs.

Plaintiff initiated this lawsuit in reaction to several closed Board sessions which occurred on March 24, 2004, May 26, 2004, and July 7, 2004. The Board closed these sessions to the public pursuant to N.J.S.A. 10:4-12b(7), because the sessions were dedicated to discussing pending litigation. Resolutions, released to the public before the closed sessions, announced that the sessions would be closed because of pending litigation, and the information discussed in the sessions would be "disclosed to the public . . . as soon as practicable after final resolution of the aforesaid matters."

On July 4, 2004, the Board published a legal notice announcing that an executive session would be held with the Town Council on July 7, 2004, at 7:30 p.m. in the main meeting room of the Town Hall for the sole purpose of discussing pending litigation involving the Board as well as the Town Council.

On July 9, 2004, plaintiff submitted a records request to the Board, seeking among other things, the resolution authorizing the July 7 closed session and the minutes of the July 7 session to be redacted only if necessary, and at a minimum, disclosing which Board members were present at the meeting. Plaintiff also requested the minutes of the meetings held on March 24, 2004 and May 26, 2004, redacted only to the minimum extent necessary. The Board's attorney responded to plaintiff's inquiry on July 16, 2004 in a letter explaining that because the closed sessions that plaintiff inquired about were all held for the purpose of discussing pending litigation, the Board would not release any of the minutes of those meetings, as the contents of the sessions were protected by the attorney-client privilege. The letter further explained that once a resolution had been reached regarding the pending litigation, the Board would release the details of the closed session to the plaintiff. No details of any of the three closed sessions that plaintiff inquired about were supplied to the plaintiff with his letter. Plaintiff then filed his complaint on August 3, 2004.

On October 7, 2004, defendant adopted a resolution stating that the purpose of the July 7, 2004 joint executive session was to discuss litigation which was underway between the Board and Apple Valley Estates, captioned Apple Valley Estates v. Twp. of West Milford, Docket No. PAS-L-385-04.

On February 28, 2005, the claims initiated against the Board by Apple Valley were dismissed. A Board meeting was scheduled for March 23, 2005, but the Board was unable to authorize the release of the July 7th minutes at that time because the Board meeting was cancelled and rescheduled for April 7, 2005. At that time, the Board voted to release the minutes. On April 15, 2005, the Board provided plaintiff with full, unredacted minutes of the three closed sessions which plaintiff had requested.

The trial court entered an order following oral argument on December 2, 2005 dismissing plaintiff's complaint. The trial judge's oral decision found that the case was moot in that the relief plaintiff sought, the unredacted minutes of the closed sessions, were produced in April 2005. With respect to the plaintiff's request for an injunction going forward requiring the Board to state its reasons for going into closed session with greater precision and to promptly release to the public at least redacted versions of its closed session minutes, the court stated it would be impermissible to give an advisory opinion with respect to future actions of the Board and that an injunction, given the facts and circumstances of this case, would be too harsh to impose. The court did, however, after reviewing the relevant law with respect to open public meetings, direct counsel for the Board to obtain a copy of the transcript of the court's opinion and provide it to members of the Board, the Mayor, the Council, and the clerk of the Board, for review and future guidance.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I: THE COURT BELOW ERRED BY NOT REQUIRING THE PLANNING BOARD, GOING FORWARD, TO STATE ITS REASONS FOR GOING INTO CLOSED ...


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