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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...