On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7188-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Defendant Zoning Board of Adjustment of the City of Hackensack (the Board) appeals from an order in this land use case denying its motion to vacate the trial court's amended order of final judgment and to reinstate the provisions of the original order. We affirm.
In March 2006, plaintiff 385 Prospect Plaza, LLC (Prospect Plaza) submitted an application for a use variance and site plan approval to the Board to construct a twenty-four space parking area in the front yard of the commercial premises located at 385 Prospect Avenue--an area zoned for multi-family residential use--in defendant City of Hackensack. Hackensack's ordinance restricted paving, parking and maneuvering in the forty-foot front yard area. The Board conducted hearings on the application, voted to deny the application in June 2007, and adopted a resolution memorializing its decision in August 2007.
In September 2007, Prospect Plaza filed a complaint in lieu of prerogative writs challenging the denial of its application. The case was tried before Judge Langan over three days beginning in June 2009. At the conclusion of the trial, the judge made extensive findings of fact and conclusions of law in an undated fifty-five page written opinion. The judge reversed the Board's denial of the variance applications, granted the variances requested by Prospect Plaza, and remanded the matter to the Board for the limited purpose of considering the imposition of reasonable conditions regarding the ingress and egress of the parking lots on the site such as limiting turning movements from the parking exits or entrances, incorporating the other exits and entrances into the plan, review the proposed landscaping such as maintaining the trees currently on-site, additional planting, the height of the planting to lessen the visual impact of the building creating a berm . . . and limiting the new lot to visitors or tenants only. . . .
The judge filed an order on May 12, 2010, directing in part, that on remand the Board "may consider the imposition of reasonable conditions regarding the application for site plan approval[.]"
The Board filed an appeal from the May 12, 2010 order, and then moved before the trial court for a stay of the remand provisions pending appeal. In an amended order of final judgment filed on August 17, 2010, the trial court denied the motion for a stay, found that the May 12, 2010 order was interlocutory because it directed a remand to the Board, sua sponte amended the May 12 order pursuant to Rule 4:42-2 to remove the requirement for a remand to the Board, and granted Prospect Plaza's application for preliminary and final site plan approval. In November 2010, Prospect Plaza filed a motion in the Appellate Division to dismiss the Board's appeal from the May 12, 2010, order as interlocutory. The Board cross moved to "have its appeal considered nunc pro tunc." In January 2011, the Appellate Division entered orders dismissing the Board's appeal as interlocutory, and denying the Board's cross motion to file an appeal on the basis that the motion was "moot."
Following dismissal of the appeal, the Board filed a motion in the trial court in March 2011 to vacate the August 17, 2010 order, and to reinstate the provisions of the May 12, 2010 order. The Board argued the judge violated Rule 4:42-2 by impermissibly certifying a partial adjudication as final for purposes of permitting appellate review of an interlocutory order. Judge Langan conducted oral argument on April 1, 2011, set forth findings of fact and conclusions of law on April 8, 2011, and entered an order on that same date denying the Board's motion. In his opinion, Judge Langan emphasized he never certified the 2010 order as final. Rather, he amended the May 2010 order to eliminate the need for a remand after the Board stated a remand would be futile. The Board filed a timely appeal on April 20, 2011.
On appeal, the Board argues the judge impermissibly utilized Rule 4:42-2 to certify an interlocutory order as final. Prospect Plaza argues the order emanates from the Board's motion to stay the remand pending disposition of its appeal from the May 12, 2010 order. In the course of its opposition to a stay of the remand, Prospect Plaza argued the Board appealed from an interlocutory order, its time to file a motion for leave to appeal had expired, and the appeal was subject to dismissal. The judge determined a remand would be futile based on representations by the Board that it believed no conditions would be reasonable, and amended his May 12, 2010 order to eliminate the remand. The August 17, 2010 order memorializes this decision. Prospect Plaza urges this appeal from the April 8, 2011 order is without merit because the Board failed to file a timely appeal from the August 17, 2010 order, and the Board cannot raise Rule 4:50-1 to seek revision of an order from which the Board did not seek appellate review.
Having reviewed the record in its entirety, we are satisfied that the arguments presented by the Board are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The August 17, 2010 order did not certify the May 12, 2010 order as final as permitted by Rule 4:42-2. Rather, the judge eliminated the provision that rendered the May 2010 order interlocutory based on representations by the Board that a remand would be futile. The August 17, 2010 order was now a final order from which the Board did not file a timely appeal. Under these circumstances, Judge Langan properly denied the Rule 4:50-1 motion filed by the Board after its earlier notice of appeal from the May 12, 2010 order had been dismissed as an appeal from an interlocutory order and its failure to file a timely appeal from the August 17, 2010 final order. In addition, during the course of the litigation, Hackensack issued building permits and the construction permitted by the August 17, 2010 order has been completed.