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Metrovation Anderson, LLC v. Zoning Board of Adjustment for the Borough of Red Bank

July 21, 2008

METROVATION ANDERSON, LLC, PLAINTIFF-RESPONDENT,
v.
ZONING BOARD OF ADJUSTMENT FOR THE BOROUGH OF RED BANK, DEFENDANT-RESPONDENT, AND WILLIAM E. MEYER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-402-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 27, 2008

Before Judges Axelrad, Sapp-Peterson and Messano.

Defendant William E. Meyer appeals from a trial court order finding that Red Bank Zoning Board (Zoning Board) member Tom Williams (Williams) did not have a disqualifying conflict of interest preventing him from participating in the variance application of plaintiff Metrovation Anderson, LLC. (Metrovation).

Metrovation is a limited liability company located in Red Bank. It consists of two separate entities: Sher Rocklin, LLC and Cole Red Bank Retail Partnership. Cole Red Bank Retail Partnership owns a minority interest (33.33%) in Metrovation and is owned by Christopher Cole and his wife, Emma Cole. Metrovation owns several parcels of property located in Red Bank that it wishes to develop. The parcels are located at 200-208, 210 and 21 Monmouth Street and 57-59 Shrewsbury Avenue, designated as Block 38, Lots 2.01, 3, 4, 5, 5.01 and 6 on Red Bank's Tax Map. At the time of Metrovation's variance application, Williams had been a member of the Zoning Board since January 2004.

In 2006, Metrovation filed an application with the Zoning Board for a use/density variance for a mixed use development of the parcels described above. The first public hearing on the application took place on December 7, 2006. At the beginning of the hearing, Williams, the Board's Acting Chair, disclosed that he had recently commenced working at Irwin Marine.

Irwin Marine is a marina located in Red Bank. The marina is owned by Channing Irwin, who testified that the marina consists of 165 boat slips and had between 800 to 1,000 customers. Cole purchased a boat from the marina in the summer of 2006. Williams commenced his employment at the marina in August of 2006. Williams never performed any work on Cole's boat and, like the other technicians working at Irwin Marine, has no control over which boats he works on. That decision is made by the marina service manager.

Williams works as a full-time technician repairing boats at the marina and he is paid hourly. He works alongside five other technicians who are also employed by the marina. As a technician, Williams repairs fiberglass, performs woodworking, and does electronic work, and addresses warranty issues associated with new power boats.

Meyer, who was present at the hearing when Williams disclosed his employment with Irwin Marine, commented that he believed Williams had a disqualifying conflict of interest.

Notwithstanding Meyer's objection, the hearing continued, with Williams' participation.

On December 28, 2006, plaintiff filed a verified complaint in the Chancery Division, General Equity Part, against Meyer and the Zoning Board, and also filed a motion, pursuant to Rule 4:67-2(b), to proceed summarily. In the complaint, plaintiff sought a declaratory judgment that Williams did not have a conflict of interest and also requested that the court award compensatory damages and attorney fees against Meyer. Meyer and the Zoning Board filed their answers to the complaint shortly thereafter.

On January 20, 2007, Meyer filed a cross-motion seeking to dismiss plaintiff's complaint on the basis that it constituted an impermissible Strategic Lawsuit Against Public Participation (SLAPP) suit. The court held a hearing on the motions on February 2, 2007. At the conclusion of the hearing, the court deferred on Meyer's motion to dismiss, but granted plaintiff's motion to proceed summarily. The court then scheduled a trial date solely to address the declaratory relief sought by plaintiff.

In an oral opinion at the conclusion of the proceeding, the court declared that Williams did not have a conflict of interest disqualifying him from participating in the proceedings concerning plaintiff's application, as there was no evidence to suggest that Williams' employment with the marina would be enhanced by the Zoning Board's approval of Metrovation's application. The order contained a further provision: "Mr. Williams agrees not to accept any work from Mr. Cole directly or indirectly until further order of the court or agreement of the parties or until [one] year after the pending application is finally determined." The court transferred plaintiff's damage ...


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