September 5, 2007
DONALD NUCKEL, PLAINTIFF-APPELLANT,
BOROUGH OF LITTLE FERRY PLANNING BOARD AND THE GENERAL'S GROUP, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Bergen County, L-8066-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: May 8, 2007
Before Judges Kestin, Weissbard and Lihotz.
Plaintiff, Donald Nuckel, appeals from an order upholding the September 17, 2003 approval, by the Borough of Little Ferry Combined Planning/Zoning Board (Board), of an application filed by The General's Group, LLC (applicant), seeking lot consolidation, subdivision, preliminary site plan approval, and several variances in connection with the applicant's plan to build a hotel. Plaintiff also appeals from the trial court's separate ruling denying his motions to supplement the record and for post-judgment discovery.
Plaintiff contends on appeal that reversal is required because: the Board should have required a contiguous lot, planned to be used for a driveway to the hotel, to have been included within the application; variances to use this adjacent lot should have been required by the Board; a conflict of interest existed involving two professionals hired by the Board, and the court erred in refusing to allow discovery and supplementation of the record regarding this issue; a height variance should have been required to develop this site; and the Board's decision was flawed because its professionals were not sworn in before they testified. Plaintiff alleges, as well, that the accumulation of those errors requires a reversal.
This is the second time the matter is before us. In an unpublished decision dated November 30, 2005, under docket no. A-1523-04, we reversed a summary judgment dismissal of the complaint in lieu of prerogative writs and remanded for proceedings on the merits.
The application at issue sought the consolidation of several lots along Route 46, and permission to subdivide the consolidated parcels into two lots, on one of which a hotel would be built. The other subdivided lot would contain a driveway providing access to the hotel from Route 46. The applicant also sought several variances in connection with the application. Following a series of sessions in which the relief sought was considered, the Board approved the application.
Plaintiff had been an objector in the proceedings before the Board. His initial complaint in lieu of prerogative writs and a later complaint objecting to a one-year extension of the approvals granted by the Board were consolidated before the trial court. Following our earlier remand, after hearing arguments on the consolidated complaints, Judge Jonathan N. Harris, for reasons stated in a May 24, 2006 bench opinion, upheld, with modification, the Board's actions and, without retaining jurisdiction, remanded for further proceedings and conditions specified in the order. In a subsequent order, Judge Harris denied plaintiff's motions seeking discovery and supplementation of the record with respect to the conflict of interest claims. The reasons for that ruling were expressed in a June 23, 2006 bench opinion.
We have analyzed the record in the light of the written and oral arguments advanced by the parties and prevailing legal standards. The background facts of the matter were adequately stated in Judge Harris's oral opinion. We will not rehearse them here.
We affirm Judge Harris's rulings on the questions presented initially, substantially for the reasons stated in his analysis of the legal issues in his oral opinion of May 24, 2006, as formalized in his order of June 5, 2006. We affirm, as well, the trial court's disposition of the issues related to the conflict of interest questions plaintiff raised in post-judgment motions, also substantially for the reasons Judge Harris stated, i.e., on waiver and estoppel grounds, see Sugarman v. Township of Teaneck, 272 N.J. Super. 162 (App. Div.), certif. denied, 137 N.J. 310 (1994), because those issues could and should have been raised before the Board and earlier in the litigation; and, in addition, because the statutory standards bearing upon the conflict of interest questions, as contained in the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25, specifically N.J.S.A. 40A:9-22.5a, -22.5d, and 22.5h, as well as the authoritative cases bearing on the question--those cited by plaintiff, and others--all address conflicts of interest involving members of the decision-making boards rather than the professionals who appear before those boards. See Wyzykowski v. Rizas, 132 N.J. 509 (1993); Griggs v. Borough of Princeton, 33 N.J. 207 (1960); Van Itallie v. Borough of Franklin Lakes, 28 N.J. 258 (1958); Pyatt v. Mayor of Dunellen, 9 N.J. 548 (1952); Haggerty v. Red Bank Borough Zoning Board of Adjustment, 385 N.J. Super. 501 (App. Div. 2006); Trust Co. of New Jersey v. Planning Board of Borough of Freehold, 244 N.J. Super. 553 (App. Div. 1990); Barrett v. Union Twp. Comm., 230 N.J. Super. 195 (App. Div. 1989); Township of Lafayette v. Board of Chosen Freeholders of Sussex County, 208 N.J. Super. 468 (App. Div. 1986); Sokolinski v. Woodbridge Twp. Mun. Council, 192 N.J. Super. 101 (App. Div. 1983); Marlboro Manor, Inc. v. Board of Comm'rs, Twp. of Montclair, 187 N.J. Super. 359 (App. Div. 1982); S & L Assocs., Inc. v. Township of Washington, 61 N.J. Super. 312 (App. Div. 1960); Aldom v. Borough of Roseland, 42 N.J. Super. 495 (App. Div. 1956); Hochberg v. Borough of Freehold, 40 N.J. Super. 276 (App. Div.), certif. denied, 22 N.J. 223 (1956); Bracey v. City of Long Branch, 73 N.J. Super. 91 (Law Div. 1962).
Given these determinations, we need not address defendants' arguments that the appeal is untimely and should be dismissed.
These latter arguments, in any event, should have been raised by early motion rather than after plaintiff's briefs and appendices were filed. See Shimm v. Toys From The Attic, Inc., 375 N.J. Super. 300, 304 (App. Div. 2005); McGowan v. Barry, 210 N.J. Super. 469, 472 n. 2 (App. Div. 1986).
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