HOUSE OF FIRE v. Zoning Bd.

43 A.3d 1205, 426 N.J. Super. 157
CourtNew Jersey Superior Court Appellate Division
DecidedJune 1, 2012
DocketA-6128-10T1
StatusPublished
Cited by1 cases

This text of 43 A.3d 1205 (HOUSE OF FIRE v. Zoning Bd.) 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
HOUSE OF FIRE v. Zoning Bd., 43 A.3d 1205, 426 N.J. Super. 157 (N.J. Ct. App. 2012).

Opinion

43 A.3d 1205 (2012)
426 N.J. Super. 157

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.

No. A-6128-10T1

Superior Court of New Jersey, Appellate Division.

Argued May 16, 2012.
Decided June 1, 2012.

*1206 Frank A. Carlet, Clifton, argued the cause for appellant (Carlet, Garrison, Klein & Zaretsky, attorneys; Mr. Carlet, on the brief).

Robert J. Pansulla argued the cause for respondent House of Fire Christian Church (Finazzo, Cossolini, O'Leary, Meola & Hager, attorneys; Mr. Pansulla, on the brief).

John D. Pogorelec, attorney for respondent Zoning Board of Adjustment of the City of Clifton.

City of Clifton, Law Department, attorneys for respondent City of Clifton (David R. Bruins, First Assistant Municipal Attorney, on the statement in lieu of brief).

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-long-standing 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, 879 A.2d 1212 (App.Div.2005). In that opinion, we observed that the City and the Board had sought to appeal an interlocutory order, id. at 531, 879 A.2d 1212, 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, 935 A.2d 803 (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, 879 A.2d 1212, the Church submitted its application for development in July 2007.[1] 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]."

*1207 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[[2]] standard." No substantive disposition regarding count one was made, and the decision was mostly silent regarding counts two and three.[3] 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 request for "the conditional use variance and the bulk variances."

The Church sought to reactivate the Law Division's retention of jurisdiction in order to pursue its appeal of the Board's denial. Because the judge who remanded the matter had retired, a third Law Division judge became involved. Trial was conducted on June 3, 2011, after which the judge rendered an oral decision reversing the Board's action. Because "the constitutional issues and damage claims" had been severed, the trial judge did not address those aspects of the case.

On July 6, 2011, the trial judge entered a memorializing order, which provided, in pertinent part, as follows:

ORDERED that the land use application for a Conditional Use and bulk variances, with site plan approval to construct a church building on the subject property ... is approved ..., and therefore the decision of the [Board] ... is hereby reversed as being arbitrary, capricious or unreasonable;
....
IT IS FURTHER ORDERED, that the remainder of this case will advance to consider whether the [Board] and [City] will be found to have violated the [RLUIPA], or other protections afforded plaintiff under the law as detailed in the Second Amended Complaint, which will be advanced through a discovery period *1208 in the Passaic County Superior Court, Law Division, and subject to a later Case Management Conference to be scheduled by the Court[.]

Appended to the bottom of the order and separately signed by the trial judge is the following notation:

Certified as "final" as to the first "Ordered" paragraph.

This appeal, by the intervenor only, followed.[4]

II.

The July 6, 2011 order is indubitably an interlocutory order for which leave to appeal has never been granted. At oral argument, the intervenor and the Church conceded as much.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
43 A.3d 1205, 426 N.J. Super. 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/house-of-fire-v-zoning-bd-njsuperctappdiv-2012.