Catalpa Investment Group, Inc. v. Franklin Township

603 A.2d 178, 254 N.J. Super. 270, 1991 N.J. Super. LEXIS 476
CourtNew Jersey Superior Court Appellate Division
DecidedNovember 22, 1991
StatusPublished
Cited by6 cases

This text of 603 A.2d 178 (Catalpa Investment Group, Inc. v. Franklin Township) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Catalpa Investment Group, Inc. v. Franklin Township, 603 A.2d 178, 254 N.J. Super. 270, 1991 N.J. Super. LEXIS 476 (N.J. Ct. App. 1991).

Opinion

ARNOLD, P.J.Cv.

What is the scope of pretrial discovery in an action in lieu of prerogative writs challenging the denial of a use variance? In this action, plaintiff seeks to depose the members of the Franklin Township Board of Adjustment (board). In addition, plaintiff has served a notice to produce various documents and propounded 17 interrogatories on the board. The board now seeks a protective order, pursuant to 5.4:10-3, directing that “plaintiff cease and desist from discovery activities.”

The material facts are as follows. Plaintiff applied to the board for a use variance. The board denied the application, finding that it lacked jurisdiction. The board’s resolution reciting the reasons for the denial states that the board relied on the decision in Dover Tp. v. Dover Tp. Bd. of Adj., 158 N.J.Super. 401, 386 A.2d 421 (App.Div.1978). The decision in that case set forth the factors to be considered in deciding whether a use variance would so substantially alter the character of a district as that character is prescribed by the zoning ordinance as to preclude a board of adjustment from granting the variance. Id. at 412-413, 386 A2d 421. In this lawsuit, plaintiff seeks a declaration that the board has jurisdiction to rule on plaintiff’s application.1

The notice to take oral depositions does not, of course, specify the subjects on which the board members are to be examined. However, the notice to produce requires the board to produce

Copies of any and all documents pertinent to the plaintiffs application which is the subject of this litigation including, but not limited to, all minutes of [273]*273meetings in which the application was discussed and all maps, charts, memoranda, letters, surveys, regulations, reports and photographs the Zoning Board relied upon in considering said application.

The interrogatories propounded by plaintiff are broad in scope and will be discussed below.

In considering the board’s application for a protective order, this court begins with the principle that pretrial discovery is afforded the broadest possible latitude and extends not only to relevant information but also to any information that might lead to the discovery of relevant information. Skanley & Fisher, P. C. v. Sisselman, 215 N.J.Super. 200, 216, 521 A.2d 872 (App.Div.1987). Nevertheless, there are exceptions to this principle. Rule 4:10-3 provides that a party from whom discovery is sought may apply for a protective order which shall be granted for “good cause shown.” However, no case decided by our New Jersey courts discusses what factors should be considered in determining whether “good cause” has been shown. This court holds that the following factors should be considered. The first two relate to the third, which relates to the scope of pretrial discovery.

1. The nature of the lawsuit and the issues raised by the pleadings;

2. The substantive law likely to be applied in the resolution of the issues raised by the pleadings.

3. The kind of evidence which could be introduced at the trial, and the likelihood of it being discovered by the pretrial discovery procedure which is the subject of the application for a protective order.

4. Whether trade secrets, confidential research, or commercial information are sought in the discovery procedure employed, whether they are material and relevant to the lawsuit, and whether a protective order will insure appropriate confidentiality. See, e.g., In re Solid Waste Utility Customers Lists, 106 N.J. 508, 524 A.2d 386 (1987); Martin v. Educational [274]*274Testing Service, Inc., 179 N.J.Super. 317, 431 A.2d 868 (Ch.Div. 1981).

5. Whether the pretrial discovery seeks confidential information about persons who are not parties to the lawsuit. See, e.g., Berrie v. Berrie, 188 N.J.Super. 274, 457 A.2d 76 (Ch.Div. 1983). See also Valley Bk. of Nev. v. Superior Court of San Joaquin Cty., 15 Cal.3d 652, 542 P.2d 977, 125 Cal.Rptr. 553 (1975).

6. Whether the pretrial discovery sought involves privileged material. See Pressler, Current N.J. Court Rules, Comment R.4:10-2 (1991).

7. Whether the pretrial discovery sought relates to matters which are or are not in dispute.

8. Whether the party seeking discovery already has the materials sought.2

9. The burden or expense to the party seeking the protective order.

Factors four, five and six are not relevant in deciding this application for a protective order.

In this action in lieu of prerogative writs plaintiff seeks a declaration that the board has jurisdiction to grant a use variance. The substantive law relevant to that issue is found in Dover Tp. v. Dover Tp. Bd. of Adj., supra, which sets forth the factors to be considered in deciding whether a use variance would so substantially alter the character of a district as to preclude a board of adjustment from granting the variance. Briefly, those factors are the size of the tract, the size of the tract relative to the size and character of the district in which it is located and of the municipality as a whole, the number of parcels into which the tract will likely be subdivided, and the nature and extent of the variation from district regulation that is sought. Dover Tp., supra 158 N.J.Super. at 412-413, 386 A.2d 421. The issue as to whether the board properly [275]*275declined jurisdiction in view of those factors will be decided solely on the record below. Kempner v. Edison Tp., 54 N.J.Super. 408, 417, 149 A.2d 251 (App.Div.1959). Furthermore, except in limited circumstances, the person challenging the decision of a board of adjustment may not inquire into the mental processes surrounding the decision of a board member. See N.J. Sports & Exposition Auth. v. McCrane, 119 N.J.Super. 457, 470, 292 A.2d 580 (Law Div.1971), aff d 61 N.J. 1, 292 A.2d 545 (1972); cf. Tomko v. Vissers, 21 N.J. 226, 240, 121 A.2d 502 (1956). Thus, the nature of the lawsuit, the substantive law applicable, and the fact that no new evidence may be introduced (factors one, two and three, supra) weigh heavily in favor of quashing the notice to take the depositions of the members of the board. Furthermore, the burden on the members of the board is great.

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Bluebook (online)
603 A.2d 178, 254 N.J. Super. 270, 1991 N.J. Super. LEXIS 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/catalpa-investment-group-inc-v-franklin-township-njsuperctappdiv-1991.