November 7, 2007
KARYN S. LIBRADER, PLAINTIFF-APPELLANT,
PLANNING BOARD OF THE BOROUGH OF INTERLAKEN, THE BOROUGH OF INTERLAKEN, AND STEPHEN P. BULLA, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-4305-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 22, 2007
Before Judges Lintner and Parrillo.
Plaintiff, Karyn S. Librader, appeals from orders of the Law Division dismissing her Order to Show Cause and denying her application in aid of litigant's rights seeking to find defendant, Stephen Bulla, in willful contempt of a February 22, 2005, consent order and to enforce a prior settlement allegedly entered with Bulla. We affirm the Law Division order denying plaintiff's R. 1:10-3 motion to hold Bulla in willful contempt of the February 22 Order. However, because the judge never decided whether Bulla violated a prior settlement agreement between the parties, we reverse the order denying post judgment relief respecting plaintiff's allegations that Bulla violated their prior settlement and remand for a plenary hearing, if deemed necessary, to determine the factual issues regarding the purported settlement agreement.
We need not set forth the facts in detail. Plaintiff and defendant are residential neighbors on Grassmere Avenue in Interlaken. In April 2004, defendant filed an application with the Interlaken Planning Board (Planning Board) seeking a hardship variance, N.J.S.A. 40:55D-70c(1), to "[a]dd a second story addition on the front and side [of] the existing footprint" of his home. The architectural plans submitted with the application demarcated an area adjacent to the master bedroom with the words "CONSTRUCT DECK." Following hearings, the Planning Board, on July 19, 2004, approved the variance permitting Bulla to expand a non-conforming use by building a second story addition extending along the rear line and over the existing one story attached garage to the rear of the residence.
On September 20, 2004, plaintiff filed a complaint in lieu of prerogative writs, naming defendant, the Planning Board, and the Borough of Interlaken (Borough), seeking to enjoin Bulla from building the addition and invalidate the Planning Board's resolution.
In early 2005, Bulla and plaintiff entered into a settlement agreement by which they agreed to file a consent judgment in the prerogative writs action in conformance with the guidance set forth in Whispering Woods at Bamm Hollow v. Middletown Planning Bd., 220 N.J. Super. 161, 170 (Law Div. 1987). Although no written settlement agreement was executed, the February 22, 2005, consent judgment signed by plaintiff, Bulla, the Borough, and the Planning Board provided in pertinent part:
NOW, THEREFORE, by the Parties' stipulation and consent, and for good cause shown, it is hereby ORDERED, ADJUDGED, AND DECLARED that:
1. the Variances that the Planning Board entered and memorialized in its July 19, 2004 Resolution are reversed and set aside;
2. the Resolution is null, void, and of no legal effect; and
3. the denial of building permits that the Borough's zoning officer issued to Mr. Bulla on March 31, 2004 is hereby reinstated.
AND IT IS FURTHER ORDERED that all claims that Plaintiff has asserted in this action against Defendant are hereby dismissed with prejudice and without costs to any party.
AND IT IS FURTHER ORDERED that all claims that Plaintiff has asserted in this action against each and every fictitiously-named defendant, designated in the caption as "John Doe," are hereby dismissed without prejudice and without costs to any party . . . .
One day after the execution of the February 22 Consent Judgment, Bulla applied and received a Zoning Permit approving plans and permitting construction of a railing on the flat roof of the attached garage designated, in the plans, as "existing deck."
On April 9, 2006, plaintiff returned home from a business trip to find that Bulla had started construction on the roof of his garage. Four days later, plaintiff sent a letter to Bulla informing him that she believed that the construction of the deck violated the February 22 consent judgment. Bulla continued construction.
On May 9, 2006, plaintiff filed an "appeal" to the Planning Board, seeking review and revocation of the building permit. On May 11, 2006, the zoning official executed a notice ordering Bulla to cease and desist construction of the deck railing. On May 11, 2006, Bulla appealed the cease and desist order to the Planning Board, pointing out that there was a door leading from the second floor of the house to the roof of the garage and claiming that the deck existed for "decades." Thereafter, plaintiff filed her Order to Show Cause and motion for post-judgment relief to enforce the settlement agreement and hold Bulla in violation of R. 1:10-3.
On August 4, 2006, the Law Division judge heard argument on plaintiff's motion. Plaintiff asserted that she and Bulla entered into a settlement agreement by which Bulla agreed that he would abandon any future right to build over his garage and, therefore, his subsequent attempt to build a deck was in violation of their settlement agreement and represented willful contumacious conduct. Bulla contested plaintiff's contention, asserting that that he did not agree to forego his future right to build a deck above the garage, only withdraw his then pending application.
The motion judge found that defendant was not "willfully contumacious" of the February 22 consent judgment, noting in part that the judgment did not expressly preclude Bulla from seeking further permits. Denying the relief sought by plaintiff, the judge found that the issue to be decided was whether the deck sought by Bulla was nonconforming, rather than a contumacious violation of a court order. He then found that the issue of nonconforming use was not properly before him and directed the parties to exhaust their administrative remedies before the appropriate municipal board.
On appeal, plaintiff does not challenge the judge's finding that determination of whether the deck was a nonconforming use is properly before the Planning Board. Instead, plaintiff asserts that the judge erred in finding Bulla not in willful contempt of the February 22 consent judgment and that the judge never determined the issues raised concerning the settlement agreement. Defendant concedes on appeal that the judge never decided the factual dispute respecting the settlement agreement.
Plaintiff's contention that Bulla's attempt to build a deck above the garage was willfully contemptuous of the consent judgment is without merit warranting further discussion in a written opinion. R. 2:11-3(e)(1)(E). We agree substantially with the judge's conclusions that the consent judgment did not expressly prevent Bulla from seeking future permits and, thus, he could not be found to be in willful contempt under R. 1:10-3. We accordingly affirm the order denying plaintiff's motion to hold defendant in violation of R. 1:10-3.
We also agree with both Bulla and plaintiff, however, that the judge neither addressed plaintiff's motion to enforce the purported settlement agreement nor resolved the factual dispute concerning that agreement. At oral argument on appeal, both Bulla and plaintiff advised that Bulla did not prosecute further his administrative appeal of the building official's cease and desist order and, thus, the Planning Board has not decided the issue of nonconforming use. Because the Zoning Permit has not been revoked and there may be a valid permit on file, arguably, there remains a controversy that may need to be resolved respecting the purported settlement agreement. Those issues remain outside the record on appeal.
We, therefore, reverse the order insofar as it denied plaintiff's motion to enforce the settlement agreement between plaintiff and Bulla. On remand, the Law Division should first determine whether a valid controversy still exists respecting the settlement agreement and, if so, decide the factual dispute between the parties, holding a plenary hearing if necessary. We do not retain jurisdiction.
Affirmed in part; reversed in part; and remanded for further proceedings consistent with this opinion.
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