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Throne v. DJF Realty

June 27, 2007

SANDRA THRONE, PLAINTIFF,
v.
DJF REALTY, INC., MARJAC, LLC, AND THE PLANNING BOARD OF THE TOWNSHIP OF WEST ORANGE, DEFENDANTS.
MARJAC, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, AND DJF REALTY, INC., A NEW JERSEY CORPORATION, PLAINTIFFS-RESPONDENTS,
v.
THE PLANNING BOARD OF THE TOWNSHIP OF WEST ORANGE, MAYOR AND COUNCIL FOR THE TOWNSHIP OF WEST ORANGE, AND THE TOWNSHIP OF WEST ORANGE, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket Nos. ESX-L-6159-05 and ESX-L-8573-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2007

Before Judges Parker and C.S. Fisher.

Defendants Township of West Orange (Township) and its Planning Board (Board) appeal from three orders: one entered on April 4, 2006 denying defendants' motion for summary judgment; one entered on May 12, 2006 denying defendants' motion for reconsideration; and a supplemental order entered on May 23, 2006 clarifying paragraph six of the April 4 order. We affirm in part and reverse in part.

Plaintiffs own property located at 466 Prospect Avenue, in West Orange. On November 13, 2002, the Board granted conditional approval of plaintiffs' preliminary and final site plan applications and granted certain variances for improvements on the property subject to a number of conditions. The Board determined that construction did not comply with the specific conditions of the approval and the structure exceeded the footprint set forth in the approved site plan.

In June 2004, the Township issued a stop work order and adopted an ordinance authorizing the Board to revoke the previously granted approval.*fn1 Pursuant to the newly-adopted ordinance, on February 2, 2005, the Board adopted a resolution declaring its prior approval null and void. In the meantime, the Township had referred the matter to the Department of Community Affairs (DCA) for supervision of the construction on plaintiffs' property.

Plaintiffs filed an action in lieu of prerogative writs, seeking (1) to declare the ordinance unconstitutional; (2) to revoke the resolution declaring the approvals null and void; (3) to direct issuance of a Certificate of Occupancy; and (4) to award damages for constructive condemnation. Defendants moved to dismiss and plaintiffs were not ready to proceed. The trial court offered the parties two options: a two-week extension, or voluntary dismissal. Plaintiffs opted to take a voluntary dismissal and were ordered to file a new application before the Board by August 15, 2005. Rather than comply with the order and file a new application, however, plaintiffs filed a second complaint in lieu of prerogative writs seeking essentially the same relief. The parties subsequently cross-moved for summary judgment.

On March 17, 2006, the trial court heard argument and held that

[t]he whole issue involving the compliance or non-compliance with the . . . plans and the variance that was obtained . . . should be . . . decided where it should be decided, which is with the DCA. They are the ones who have [the] approvals over the construction. They are the ones that should decide.

The court noted that the DCA had begun its hearing but stopped because the Board revoked its approval. But, found no authority and law for the Planning Board to revoke this approval. The ordinance allowing the revocation of approval was adopted after the variance and the site plan approval was made in this case.

The applicant had no notice at the time that the application was made that this might even technically apply. There is no reason for me to deal with the ultimate validity or invalidity of the ordinance allowing the Board . . . to revoke a previously granted approval, which, by statute, the plaintiff is entitled to.

In the order memorializing the ruling, the court directed the parties to pursue all issues regarding construction of the premises . . . [and that such issues,] including without limitation, whether the construction violates the previously issued approvals and zoning regulations, remain with the Department of Community Affairs for determination consistent with the existing jurisdiction of the Department of Community Affairs.

The supplemental order entered on May 23, 2006 clarified the court's instruction regarding the DCA, and stated that the April 4 order does not decrease or affect the jurisdiction of the DCA related to the ...


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