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Michael J. King, Coordinator of Realsmart, the League of Real Smart Growth v. Harmony Township Land Use Board and New Jersey Department of Environmental Protection

May 3, 2011

MICHAEL J. KING, COORDINATOR OF REALSMART, THE LEAGUE OF REAL SMART GROWTH, PLAINTIFF-APPELLANT,
v.
HARMONY TOWNSHIP LAND USE BOARD AND NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANTS,
AND
SIGNATURE ESTATES AT HARMONY, L.L.C., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Warren County, Docket No. L-119-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 14, 2010

Before Judges Wefing, Payne and Koblitz.

Plaintiff, Michael J. King, who states that he serves as Coordinator of REALsmart, The League of Real Smart Growth, a committee of the non-profit Phillipsburg, New Jersey, Riverview Organization, appeals the dismissal with prejudice of his action in lieu of prerogative writs as the result of his failure to certify that all necessary transcripts of local agency proceedings in the cause had been ordered, as required by Rule 4:69-4. On appeal, plaintiff argues that the judge managing the matter erred in declining to vacate the order of dismissal upon reconsideration when presented with evidence that the transcripts had then been ordered and in declining to vacate the order pursuant to Rule 4:50-1(a) or (f). We affirm.

I.

The matter arises from an application to the Harmony Township Land Use Board by Signature Estates at Harmony, L.L.C. for preliminary and final site plan approval of a development consisting of twenty-one houses on property consisting of 73.76 acres. The original application for preliminary site plan approval was made in April or May 2004 and granted on April 5, 2006. A May 2007 application for final site plan approval was granted on October 3, 2007. Approximately twelve hearings were conducted on the applications, none of which were attended by plaintiff or members of his organization.

However, on February 19, 2008, plaintiff, appearing pro se, filed an action in lieu of prerogative writs against the Harmony Township Land Use Board (Board) and the New Jersey Department of Environmental Protection (DEP) in which he alleged that the Board and the DEP failed to afford legally-required protections to the land constituting the development, at least part of which was situated in a Special Water Resource Protection Area, and had otherwise failed to comply with environmental regulations. As relief, plaintiff sought suspension of the Board's approval until a decision was reached in a "soon-to-be-filed" suit pursuant to the New Jersey Environmental Rights Act (ERA), N.J.S.A. 2A:35A-1 to -14, and a judgment vacating the approval once a favorable decision in the ERA suit was issued. Plaintiff also asked "for relief from the court for the general requirement of transcription of Land Use Board meeting record pending the ERA action."

An amended complaint, naming as an additional defendant the developer, Signature Estates at Harmony, L.L.C., was filed, pro se, on April 15, 2008. That amended complaint, like the initial one, made reference to a "soon-to-be-filed ERA suit," and it again asked "for relief from the court for the general requirement of transcription of Land Use Board meeting record pending the ERA action." The amended complaint reflects the fact that construction at the site had commenced.

Signature Estates filed an answer to plaintiff's complaint and a counterclaim on June 10, 2008. The record on appeal does not disclose whether the ERA suit was ever filed.

The present matter was quiescent until September 2009. In the meantime, however, on December 5, 2008, the managing judge had dismissed another action filed by plaintiff against the Board, the DEP and individual property owners, Kenneth and Patricia Beers, as the result of his failure to comply with Rule 4:69-4, and an appeal from that order had been filed. See King v. Harmony Twp. Land Use Board, No. A-2478-08 (App. Div. July 27, 2010) (slip op. at 2) (stating date of trial court's order).*fn1

On September 9, 2009, the managing judge held a telephonic case management conference in the present matter, in which counsel for the Board, which had not answered the complaint, counsel for the Signature Estates and newly-retained counsel for plaintiff*fn2 participated. In an order issued following the conference, plaintiff's action against the DEP was dismissed as the result of failure to serve it with process, plaintiff was directed to file a second amended complaint on or before September 30, 2009, the Board and Signature Estates were directed to answer the complaint within ten days, and the Board was ordered to provide proof of publication of the resolution finally approving Signature Estates' site plan and the date of that publication. Although the judge's order did not specify that plaintiff was required to comply with Rule 4:69-4 when filing his second amended complaint, the parties evidently understood that to be the case. According to the judge, at the conference, plaintiff's counsel indicated that he might file a motion to be relieved of the obligation to file transcripts. However, the judge stated that he was not "optimistic about it being granted," since a land use approval could not be attacked without reference to the expert's reports and testimony that provided the foundation for the Board's decision.

On October 1, 2009, counsel for plaintiff sought an extension to October 2 to file and serve plaintiff's second amended complaint, but on October 6, counsel informed the judge and the parties that a second amended complaint would not be filed. In an October 29 letter to the judge, counsel stated that he had been discharged and that plaintiff was seeking replacement counsel.

On October 29, 2009, the judge, sua sponte, dismissed plaintiff's complaint with prejudice for failure ...


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