February 1, 2010
LARRY PRICE, PLAINTIFF-APPELLANT,
MARTIN T. MARTINETTI, CONSTRUCTION OFFICIAL OF THE CITY OF UNION CITY, 13-14 UNION, LLC, AND 414-416 13TH STREET, LLC, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-5003-08 and L-5330-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 6, 2010
Before Judges Sabatino and Newman.
Plaintiff Larry Price appeals an order dismissing without prejudice two orders to show cause that sought the demolition of three partially constructed structures that were being developed by defendant developers 13-14 Union, LLC (Union), and 414-416 13th Street, LLC (13th Street). We affirm.
The relevant facts may be summarized as follows. Union and 13th Street had previously received variance and site plan approvals from the Union City Zoning Board of Adjustment (the Board) and, afterwards, began construction on the three sites. These approvals were vacated by this court in two separate opinions. This court reversed the Law Division's judgment and vacated the Board's grant of the variances to Union. Price v. 13-14 Union, LLC, No. A-6490-06 (App. Div. May 21, 2008) (slip op. at 9). We found that the developer failed to provide the necessary evidence for a variance pursuant to N.J.S.A. 40:55D-70d(1), a "d(1)" use variance. Id. at 2. A motion for reconsideration was denied by this court in an order of June 10, 2008. The Supreme Court denied certification. 196 N.J. 462 (2008).
In Price v. Union City Zoning Bd. of Adjustment, No. A-4017-06 (App. Div. Aug. 1, 2008), we reversed the trial court's decision which upheld the variances granted to 13th Street because we found that the application was improperly approved pursuant to N.J.S.A. 40:55D-70d(3), a "d(3)" conditional use variance, when a "d(1)" variance was required. Id. at 7-10. The Supreme Court denied certification. 196 N.J. 599 (2008).
Respondent Martin Martinetti, the Union City Construction Code Official, issued stop work orders on the respective construction sites following our opinions. Price, however, sought to have the buildings demolished. When Union City was not responsive to his request, plaintiff filed the two orders to show cause that are on appeal, seeking the demolition of the partially constructed structures because they were non-conforming following this court's rulings that vacated the earlier approvals.
On December 11, 2008, the Board, by resolution, granted variances to the developers and construction resumed at the sites. Subsequently, plaintiff filed a verified complaint in lieu of prerogative writs challenging the December 2008 approvals of the three sites. This complaint was initially dismissed without prejudice, and Price later filed three separate verified complaints which are still pending.
At the show cause hearing, Price argued that res judicata precluded the Board from granting the December 2008 approvals. The trial court dismissed the orders to show cause without prejudice because plaintiff had failed to join the Board as an indispensable party to the action and for the further reason of mootness of the recently-filed prerogative writs action. On appeal, plaintiff raises the following issues for our consideration:
POINT I: THE ZONING BOARD WAS A DE FACTO INTERVENOR.
POINT II: THE TRIAL COURT HAD THE POWER TO ACT.
POINT III: RES JUDICATA APPLIES.
POINT IV: THE PROPER COURSE IS DEMOLITION.
We need not address all of plaintiff's arguments because we are convinced that the present appeal is moot by reason of the Board's resolutions, granting new variances to defendants' building projects. The basis for each order to show cause was the structures' being non-conforming under the City zoning ordnance, but their non-conformity was abated upon the Board's December 11, 2008 approvals.
We are in no position to consider plaintiff's res judicata argument because there is no record before this court to be addressed. The issue of res judicata and possibly collateral estoppel are ripe for consideration by the trial court in the pending prerogative writs actions. The trial court will be in a position to compare the Board's actions in granting the variances reversed by this court with what was before the Board which led to the resolutions granting the variances on December 11, 2008.
The mootness of the present appeal is obvious. Plaintiff's arguments challenging these newly-granted variances have to be made in the trial forum in the pending prerogative writs action against the same developers and the Board.
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