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Michael J. Rogers and Jan Rogers v. Holland Township Planning Board and Allen Blumberg

October 31, 2011

MICHAEL J. ROGERS AND JAN ROGERS, PLAINTIFFS-APPELLANTS,
v.
HOLLAND TOWNSHIP PLANNING BOARD AND ALLEN BLUMBERG, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0540-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 13, 2011

Before Judges Messano, Yannotti and Espinosa.

Plaintiffs Michael J. and Jan Rogers appeal from the November 12, 2010 order of the Law Division affirming the decision of defendant Township of Holland Planning Board (the Board), and dismissing plaintiffs' complaint against the Board and defendant Allen Blumberg with prejudice. The facts are essentially undisputed. We recite the convoluted procedural history leading to the filing of plaintiffs' complaint in lieu of prerogative writs.

I.

Plaintiffs own property that they purchased from Blumberg on September 24, 2004; their property is contiguous to 110 acres that Blumberg also owns (the property). In July 2004, the Board granted Blumberg subdivision approval to divide the property into sixteen building lots.

On September 1, 2004, other contiguous property owners, Jeffrey and Ellen Broadhurst, filed a complaint in lieu of prerogative writs challenging the Board's approval (the Broadhurst litigation). The record is silent as to whether or not plaintiffs were aware of that litigation. The trial judge, Peter A. Buschsbaum, granted the Board and Blumberg summary judgment, finding the complaint was untimely. The Broadhursts appealed and we remanded the matter to Judge Buchsbaum to consider the merits of the complaint. Broadhurst v. Twp. of Holland Planning Bd., No. A-3892-04 (App. Div. Mar. 23, 2006).

On April 23, 2007, Judge Buschsbaum affirmed the Board's grant of Blumberg's subdivision application. The Broadhursts again appealed and we affirmed the judge's decision in an unreported opinion. Broadhurst v. Twp. of Holland Planning Bd., No. A-5098-06 (App. Div. Aug. 15, 2008) (Broadhurst II).

On August 10, 2009, the Board granted Blumberg a three-year extension of the subdivision approval. Plaintiffs filed their complaint in lieu of prerogative writs on September 17, 2009. Plaintiffs contended that Blumberg's failure to file the subdivision plat in accordance with the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163 (the MLUL), rendered the Board's original approval null and void. Plaintiffs also alleged that the Board's decision extending its prior approval was arbitrary, capricious and unreasonable because Blumberg did not satisfy the provisions of N.J.S.A. 40:55D-21.

On February 22, 2010, plaintiffs moved for summary judgment. Defendants filed opposition. On March 26, citing our opinion in Willoughby v. Planning Bd. of Deptford, 306 N.J. Super. 266 (App. Div. 1997), the judge notified all counsel that he would not consider the motion and the matter would "be scheduled for a hearing on the record below in the normal course."

On April 30, the parties appeared before Judge Buchsbaum. The judge noted that the Broadhurst litigation, and its effect upon Blumberg's approval, was the "major issue" in the case. Yet, given the "relatively brief transcript of" the proceedings before the Board on August 10, 2009, the judge observed that the "only evidence in the record . . . is that there was litigation." Over plaintiffs' objection, Judge Buchsbaum concluded that "the solution" was to remand the matter to the Board "to supplement the record on . . . the circumstances of the tolling with testimony." He entered an order requiring "remand proceedings, to include sworn testimony, [to] be completed by June 15, 2010."

The Board conducted the remand hearing on the record on June 14. Doug Henshaw, the attorney who represented Blumberg and secured the subdivision approval, was the sole witness. Henshaw outlined the original proceedings, the initiation of the Broadhurst litigation, and the basis for the Board's attorney's decision to forestall the signing of the subdivision plat while the litigation was pending. Henshaw agreed with that decision, noting that the Broadhurst litigation "went to the heart of the approval," and, while it was pending, perfecting the subdivision and selling the lots to prospective purchasers would have been "inappropriate."

Nonetheless, while the Broadhurst litigation was pending, Henshaw submitted "proposed form of easements, descriptions . . . [and] bonding information," -- "all the standard work . . . to bring [one] into compliance" with the conditions of the approval -- to the Board's attorney and other municipal officials for review. During cross-examination by plaintiffs' counsel, Henshaw admitted that Blumberg did not post any performance bonds while the Broadhurst litigation was pending.

Three Board members who were also members during the August 2009 hearing were questioned as to their knowledge of the Broadhurst litigation and advice of the Board's attorney. They all indicated their understanding that Blumberg's 2009 extension request was occasioned by the delay caused by the Broadhurst litigation.

Blumberg did not testify. The Board's attorney stipulated no testimony was taken at the August 2009 hearing that addressed whether Blumberg was ready, willing and able ...


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