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Maximus Real Estate Fund, LLC v. Marotta

August 13, 2009

MAXIMUS REAL ESTATE FUND, LLC AND MAXIMUS OKC REAL ESTATE FUND LLC, PLAINTIFFS-RESPONDENTS,
v.
LIBERO D. MAROTTA AND LARRY PRICE, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1127-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 6, 2009

Before Judges A. A. Rodríguez and Payne.

In these appeals, which were argued back-to-back and we decide jointly, defendants Larry Price and his attorney, Libero D. Marotta, claim that the motion judge abused her discretion in denying their motions for attorneys' fees incurred in defending against the action instituted by Maximus Real Estate Fund, LLC and Maximus OKC Real Estate Fund, LLC (jointly, Maximus), arguing that the action was a frivolous SLAPP*fn1 suit.

I.

The record discloses that the plaintiffs are developers who planned to construct a ten-story multifamily condominium in Union City consisting of ninety-six residential units and 116 off-street parking spaces - a plan that was later amended to include eighty units with 106 off-street parking spaces. The plan required a "d" floor area ratio variance to permit a ratio of 7:2, whereas 3:1 was permitted; a "d" density variance to permit a density of 181 units per acre whereas 110 units were allowed; a "c" minimum lot size variance to permit a lot of 19,352 square feet in size whereas a minimum of 20,000 square feet was required; and a "c" lot coverage variance to permit 97.4% of the lot to be covered, rather than the permissible 55%. See N.J.S.A. 40:55D-70c and d. Price unsuccessfully opposed plaintiffs' variance applications, which were granted by the Union City Board of Adjustment in a resolution dated January 12, 2006.

On March 2, 2006, Price, represented by Marotta, filed a verified complaint in lieu of prerogative writs challenging the Board of Adjustment's action in granting the variances as arbitrary, capricious and unreasonable. In a letter dated August 18, 2006, counsel for Maximus informed Marotta that he deemed the action to be frivolous, and he demanded its dismissal pursuant to Rule 1:4-8. The request was declined in a letter from Marotta dated August 23, 2006. On November 17, 2006, an order was entered denying the relief sought by Price in his complaint and, on December 29, 2006, Price filed a notice of appeal.

On March 1, 2007, while Price's appeal was pending, Maximus filed suit against Marotta and Price, alleging the procedural history that we have recited and stating:

To date, Defendants Price and Marotta continue to refuse to withdraw their ongoing and pervasive course of conduct in challenging Plaintiffs' legitimate zoning approval. The actions of Defendants Price and Marotta continue to have a devastating and detrimental impact upon Plaintiffs' ability to develop the Subject Property.

Maximus asserted causes of action for malicious prosecution/abuse of process (Count One) and tortious interference with prospective economic advantage (Count Two). In connection with Count Two, Maximus made the following allegations:

27. Upon information and belief, the course of conduct being undertaken by Defendants Price and Marotta in continuing their frivolous challenges to Plaintiff's zoning approvals is being undertaken primarily with the intent of extracting a financial settlement from Plaintiff.

28. Upon information and belief, Defendants Price and Marotta have, over the course of a five (5) year period, prosecuted a substantial number of zoning appeals arising out of approvals issued by the Union City Zoning Board of Adjustment. In the course of said zoning challenges, Defendants Price and Marotta have extracted financial settlements from various real estate developers in the City of Union City in exchange for withdrawing contemplated and/or filed appeals of zoning approvals.

No factual support for these allegations of misconduct has ever been provided, despite requests for such information. It is true, however, that Price challenged in court ...


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