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House of Fire Christian Church v. Zoning Board of Adjustment of the City of Clifton and the City of

June 1, 2012

HOUSE OF FIRE CHRISTIAN CHURCH, PLAINTIFF-RESPONDENT,
v.
ZONING BOARD OF ADJUSTMENT OF THE CITY OF CLIFTON AND THE CITY OF CLIFTON, DEFENDANTS-RESPONDENTS, AND LIVIA PEPPER, INTERVENOR-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-6003-02.

The opinion of the court was delivered by: Jonathan N. Harris, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 16, 2012

Before Judges Fuentes, Graves, and J. N. Harris.

The opinion of the court was delivered by JONATHAN N. HARRIS, J.A.D.

Seven years have passed since we reviewed the then-longstanding land use dispute among plaintiff House of Fire Christian Church (the Church), defendants City of Clifton (the City) and its Board of Adjustment (the Board), and intervenor Livia Pepper. See House of Fire Christian Church v. Zoning Bd. of Adj. of Clifton, 379 N.J. Super. 526 (App. Div. 2005). In that opinion, we observed that the City and the Board had sought to appeal an interlocutory order, id. at 531, but "in an effort to facilitate a fair and final resolution of the disputed issues," we granted leave to appeal nunc pro tunc. Ibid. (citing R. 2:4-4(b)(2)). Notwithstanding the lamentable passage of time and the outlay of substantial efforts by the parties and several Law Division judges, the matter once again arrived before us failing to bear a final judgment "dispos[ing] of all claims against all parties." Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549 (App. Div. 2007). In its place, the Law Division entered an order certifying as final, see Rule 4:42-2, all issues arising under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, while reserving for future resolution the myriad claims of the Church against the City and the Board with respect to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.A. §§ 2000cc to 2000cc-5. Because we are not bound by an improvidently-granted final certification under Rule 4:42-2, and the interests of justice do not command our immediate intervention, this time we decline to grant leave to appeal nunc pro tunc and accordingly dismiss the appeal.

I.

Except to the extent necessary to illuminate the dispositive issue before us, we will not repeat the factual background in detail that was set forth in House of Fire Christian Church. Familiarity with that opinion is assumed.

After we affirmed the Law Division's decision "to remand the Church's application to the Board for a consolidated [(nonbifurcated)] hearing," House of Fire Christian Church, supra, 379 N.J. Super. at 547, the Church submitted its application for development in July 2007.*fn1 After months of procedural wrangling, which did not result in the Board conducting an evidentiary hearing, the Church filed a motion in aid of litigant's rights in February 2008, requesting that the Law Division "sustain the site plan and variances . . . and [impose] sanctions pursuant to the [RLUIPA]."

On September 5, 2008, the motion court issued an order denying relief because the conditions of remand had been met and "[t]he re-hearing of all issues [was] pending" before the Board. The court further denied the Church's request for RLUIPA sanctions having found that the Board commenced hearings in May 2008.

The Board denied the Church's proposal anew and memorialized its decision in a formal resolution on December 4, 2008. The Church responded by filing a three-count "Second Amended Complaint in Lieu of Prerogative Writs" in January 2009. The first count succinctly raised conventional MLUL claims. The second and third counts alleged violations of "[RLUIPA] and such other state or Federal law to protect religious organizations such as plaintiff." The pleading did not specify under what "other state or Federal law" the Church was seeking protection.

A second Law Division judge issued a written decision on March 2, 2010, remanding the matter to the Board "for reconsideration and the issuance of a new resolution within ninety days, containing detailed findings of facts and conclusions of law, in accordance with the Coventry Square[*fn2 ] standard." No substantive disposition regarding count one was made, and the decision was mostly silent regarding counts two and three.*fn3 The court expressly declared, "[j]urisdiction is retained." On March 23, 2010, it issued an order memorializing its decision including a proviso that the Board hear no further testimony.

On June 16, 2010, the Board convened to reconsider the matter, allowing counsel to speak but prohibiting any new testimony. That same day, the Board adopted a resolution "disapprov[ing]" the Church's development application and denying its ...


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