May 31, 2007
STEVEN KLUG AND BRUCE LICAUSI, PLAINTIFFS-APPELLANTS,
BRIDGEWATER TOWNSHIP PLANNING BOARD; BRIDGEWATER TOWNSHIP; SHERID, INC.; AND BERNARD AND SUSAN FRIEDMAN, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, L-189-04-PW.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 22, 2007
Before Judges Coburn, R.B. Coleman and Gilroy.
On January 4, 2000, defendant Sherid, Inc. ("Sherid"), applied to the Bridgewater Township Planning Board for approval of a 12.46 acre subdivision that would be next to property owned by plaintiffs Steven Klug and Bruce Licausi. After four hearings, the Planning Board granted preliminary subdivision approval on December 17, 2003.
Plaintiffs filed a timely action in lieu of prerogative writs in the Law Division. On January 12, 2005, the judge filed a written opinion, finding that the facts supported the Planning Board's approval of the subdivision application, but also indicating that the Township Planner, who prepared an environmental impact statement for Sherid, had an impermissible conflict of interest that could have tainted the Planning Board's findings. Therefore, the judge vacated the Planning Board's resolution and remanded the case to the Planning Board for reconsideration without reference to or consideration of the environmental impact statement. This ruling was confirmed in an order of February 8, 2005, which, among other things, also provided that the judge would retain jurisdiction pending action by the Planning Board.
On September 26, 2005, the Planning Board adopted a resolution approving the subdivision. Despite the judge's retention of jurisdiction in the order of February 8, 2005, plaintiffs apparently sought immediate relief in the Appellate Division, which dismissed the appeal on December 8, 2005, and denied a motion for reconsideration on January 16, 2006. The appeal was dismissed on the ground that it was filed out of time because the parties apparently represented to the court that the February 8, 2005, order was a final judgment.
On February 9, 2006, plaintiffs moved to vacate the order of February 8, 2005, because it was being treated as a final order. On March 20, 2006, the judge entered an order denying the motion to vacate the February 8, 2005, order, and restore the complaint. But that order also provided that
[p]laintiff's time to appeal the action taken by Bridgewater Township Planning Board, subsequent to this court's order of remand dated February 8, 200 . . . is extended. Plaintiff has until Friday, March 31, 2006 (twenty-eight (28) days from the decision of this court) to file a Complaint in Lieu of Prerogative Writ[s] with this court.
The order also provided that it was a final judgment, meaning only that no further action could be taken under the older docket number, while preserving in all respects plaintiffs' claims against both resolutions adopted by the Planning Board.
On March 21, 2006, plaintiffs filed their second action in lieu of prerogative writs pursuant to the permission granted them in the order of March 20, 2006, and on April 27, 2006, plaintiffs filed this appeal from the order of March 20, 2006.
At argument, we were advised that the second prerogative writs action was determined by another judge in defendants' favor, and that plaintiffs will shortly file their appeal from that decision.
Apparently that decision dealt only with the issue remanded to the Planning Board. In any case, the record as submitted to us contains none of the transcripts of the hearings before the Planning Board.
Despite some of the language employed by the judge in the order of March 20, 2006, the effect of that order was to vacate the February 8, 2005, order as a final judgment, which of course it never was. Plaintiffs were entitled to a hearing of their actions in lieu of prerogative writs on the merits. As of now, they have succeeded in obtaining such review in the trial court, albeit before two judges. Since we do not have the Planning Board transcripts, we cannot review either judge's decision approving the resolutions. That will have to be done in the appeal plaintiffs are about to file. Since that was the intended effect of the March 20, 2006, order, plaintiffs' appeal is dismissed with the understanding that when and if plaintiffs appeal from the most recent Law Division judgment, they will be entitled to challenge all of the previous adverse rulings of the Law Division.
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