On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-17-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010
Before Judges Skillman and Yannotti.
Defendant Flarlas, LLC (Flarlas), appeals from a judgment entered for plaintiff Borough of Bloomingdale (Borough) on August 28, 2009, and an order dated October 19, 2009, which denied its motion for reconsideration. For the reasons that follow, we reverse.
On December 28, 2007, the Borough filed a complaint in which it alleged that Flarlas had unlawfully expanded a prior non-conforming use of certain property, engaged in certain construction activities on the property without approval, and maintained thereon an unsafe structure. The Borough alleged that, as of December 24, 2007, it had assessed penalties against Flarlas in the amount of $93,000 for failure to obtain required permits, approvals and a certificate of occupancy. It further alleged that an additional $1500 was due each week that the violations continued. In addition, the Borough alleged that, as of December 24, 2007, it had assessed penalties against Flarlas in the amount of $38,000 for maintaining an unsafe structure, with an additional $2000 due for each week that the violation continued.
The parties entered into a stipulation of settlement dated November 3, 2008. The agreement states that Flarlas would meet with Dan Hagberg (Hagberg), the Borough's construction official/zoning officer, within one week. Hagberg would then determine and inform Flarlas what was required to bring the subject property into compliance with the Uniform Construction Code (UCC), N.J.S.A. 52:27D-119 to 151, and the Borough's Code (BC). Flarlas would have ninety days from notification to bring the property into compliance.
The agreement provided that if Hagberg was satisfied that the property was in compliance with the UCC and BC, Flarlas would pay the Borough a penalty in the amount of $5000. The agreement additionally provided that if Hagberg was not satisfied that the property was in compliance with the applicable codes within ninety days of notification, "Flarlas shall owe a $40,000 penalty to the Borough, with a lien attached to the property."
In August 2009, the Borough sought entry of judgment pursuant to the settlement agreement. In an affidavit dated August 7, 2009, the Borough's attorney, Joseph V. MacMahon (MacMahon), stated that on November 6, 2008, Hagberg met with representatives of Flarlas and provided them with a written document "setting forth available options" that would bring the subject property into compliance with the codes. Sally Meyer (Meyer) signed the document on behalf of Flarlas. However, according to MacMahon, Flarlas failed to bring the property into compliance with the codes, and the Borough was entitled to a judgment against Flarlas in the amount of $40,000.
MacMahon additionally stated that, after the expiration of the ninety day period provided for in the settlement agreement, he contacted James K. Webber (Webber), counsel for Flarlas, and informed him that Flarlas had not brought the property into compliance. MacMahon told Webber that the Borough might be interested in purchasing the property "if [it was] cost effective to do so." MacMahon said that discussions regarding the purchase of the property "have not progressed but may in the future if an agreeable price can be negotiated."
The Borough's motion for entry of judgment was returnable on August 28, 2009. Flarlas sought an adjournment of the return date to September 11, 2009, and, assuming it had been granted, filed a certification by Webber opposing the motion on September 2, 2009.
In his certification, Webber stated that Meyer met with Hagberg on November 6, 2008, as promised. At the meeting, Hagberg informed Meyer that the building in question had two significant problems. Flarlas had constructed a deck off the rear of the second story and converted a one-bedroom apartment into three studio apartments without permits and prior approvals. Hagberg told Meyer what needed to be done to correct the problems.
According to Webber, in January 2009, Flarlas filed an application with the Planning Board seeking approval of the non-conforming deck. Meyer also told Hagberg that she would convert the three studio apartments to a single apartment. Hagberg told Meyer that if such work were done, it had to be in conformance with the then-applicable BC. To do so, Flarlas had to hire an architect and other professionals at a cost of in excess of $30,000. Webber stated that Meyer did not have "that kind of money."
Webber additionally stated that the parties had discussed what was required to bring the property "up to code." On February 12, 2009, the Borough's attorney approached Webber and indicated that the Borough might want to enter into negotiations to purchase the property. Meyer was interested because she was losing money on the property, since it ...