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Kadziela v. Ocean County Construction Board of Appeals

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 17, 2009

THADDEUS KADZIELA AND FLORA KADZIELA, PLAINTIFFS-RESPONDENTS,
v.
OCEAN COUNTY CONSTRUCTION BOARD OF APPEALS, DEFENDANT-APPELLANT, AND MULTI-TRUST, INC. DEFENDANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1935-07PW.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 23, 2009

Before Judges Lisa and Sapp-Peterson.

Defendant, Ocean County Construction Board of Appeals (Board), appeals from Judge Grasso's May 7, 2008 order vacating the Board's May 10, 2007 decision granting defendant Multi-Trust, Inc.'s (Multi-Trust) appeal of a Notice of Violation (NOV) and dismissing the NOV.

The NOV stems from plaintiffs Thaddeus and Flora Kadziela's complaint filed with the Department of Community Affairs (DCA) against Multi-Trust arising out of the construction of their new home. DCA determined that the matter was not properly before it and referred plaintiffs' complaint to Lacey Township's construction official, who issued a NOV and order to terminate against Multi-Trust on May 24, 2005. The Board granted Multi-Trust's appeal and the NOV was dismissed. Plaintiffs then commenced an action in the Law Division against the Board and Multi-Trust, claiming that the Board's decision to grant Multi-Trust's appeal and to dismiss the NOV was arbitrary, unreasonable and capricious.

In lieu of filing an answer, the Board moved to dismiss plaintiffs' complaint on the grounds that plaintiffs lacked standing to appeal since they had not been parties to the matter before the Board, and plaintiffs should have filed an action in lieu of prerogative writs. Judge Vincent Grasso, in a well-written and comprehensive decision, found (1) that the Board's refusal to permit plaintiffs' counsel to represent their interests before the Board "violated the dictates of the DKM [Residential Props. Corp. v. Twp. of Montgomery, 182 N.J. 296 (2005)] case as well as N.J.A.C. 5:23A-2.2(a)"; (2) the Board's refusal to permit plaintiffs to introduce any documents into evidence or to question any of the experts who testified was inconsistent "with reasonable rules of procedure and due process"; and (3) but for the Board's actions, "[p]laintiffs were wholly willing to participate as parties" in the proceedings before the Board. The court entered judgment in favor of plaintiffs "vacating and setting aside the decision of the [Board]." It reinstated the "notice of violation and order to terminate originally filed by the construction official for Lacey Township dated May 25, 2005," and remanded the matter to the Board for a new hearing at which all interested parties would be afforded the opportunity "to be heard and present evidence, expert or otherwise, and be represented by counsel." The present appeal followed.

The order under appeal remanded the matter to the Board for a new hearing. Upon conclusion of the proceedings, any party aggrieved by the Board's action may seek relief in Superior Court. See R. 4:69-1. As such, the order under review is interlocutory, for which leave to appeal was neither granted nor sought. See R. 2:2-4. Thus, we dismiss the appeal as interlocutory. Vitanza v. James, 397 N.J. Super. 516, 517-18 (App. Div. 2008).

This appeal is dismissed. No costs.

20090417

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