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THE PLANNING BOARD LACKED
JURISDICTION
TO READOPT ITS PRIOR RESOLUTIONS WHILE
THE PRESENT LITIGATION WAS PENDING.
In Kramer v. Board of Adjustment of Sea Girt, 8 N.J. Super 454 (Law Div. 1963) the Court said:
"it is the opinion of the court that under the facts of this case, while the suit challenging the validity of the board’s recommendation to grant a variance was pending in the Superior Court, the board was without jurisdiction to take further action except on remand by the court."
The case of In re Plainfield-Union Water Co., 14 N.J. 296 (1954) was cited in Kramer as being a suggested warning to judicial and administrative bodies alike that the board lacked jurisdiction. The case of Morton v. Clark, 102 N.J. Super 84 (Law Division 1968) reaffirmed the holding of Kramer supra. The Court in Morton said "the institution of proceedings in lieu of prerogative writ in the Superior Court divested the town council of jurisdiction." (p. 101) The decision of the trial court was affirmed by the Appellate Division. Morton v. Mayor & Council of Clark, 108 N.J. Super 74 (1969) The actions of the Planning Board in readopting resolutions of approval was taken while the present prerogative writ action has been pending before the Court. That de novo action is null and void.
TURNER AND BARSA IMPROPERLY PARTICIPATED
IN THE HEARING AND THE VOTING.
The members of the board who voted in favor of the application were Barsa, Cabrera, Gould, Kravitz, Rosas and Turner. Turner is the Mayor. On July 1, 1998 he was appointed as Class I member. Under the provisions of N.J.S.A. 40:55D-23 the Class I member is the Mayor except in Faulkner communities where the Manager is the Class I member if provided by the local ordinance. The ordinance in effect at the time of the hearing provides that the Class I member is the Manger. The Mayor was appointed by the Mayor and Council as the Class I member on July 1, 1998. That appointment was unlawful and accordingly the Mayor at the time of the hearing and the vote unlawfully participated as a member of the Planning Board.
Barsa was appointed by the Mayor and Council as a Class II member with an expiration date of December 21, 2001. Under the provisions of N.J.S.A. 40:55D-23 Class II member is one of the officials:
"provided that if there be an environmental commission, the member of the environmental commission is also a member of the planning board --- shall be deemed to be the Class II planning board member for purposes of this act in the event that there be among the Class IV or alternate members of the planning board both a member of the zoning board of adjustment and a member of the board of education." (p. 108)
At the time of the application Michael
Gould was a member of the environmental commission. Additionally Anthony Rosas was a
member of the Board of Education. Accordingly the Class I member was required to be a
member of the environmental commission. Barsa accordingly was ineligible to be a Class II
member. Both Turner and Barsa unlawfully participated and voted on the application which
is the subject of this litigation.
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The board consists of nine members. The transcript reflects that at the November 5 meeting
when the Board approved the application that Gould, Turner, Cabrera, Kravitz, Barsa and
Rosas were present and voted in favor of the application. Since Turner and Barsa were not
lawful members of the board the vote only ----- four lawful votes which was not a majority
of the board membership of nine. Additionally the presence of the four lawful members was
not a quorum. Similarly at the meeting of January 5, 1999 the memorializing resolution was
adopted. Turner and Barsa also voted. There were only four lawful members present which
was not a quorum. At the meeting of October 22, 1998 there were only three lawful members
present which was not a quorum. At the meeting of September 24, 1998 there were only three
lawful members present which was not a quorum. At the meeting of September 10, 1998 there
were only three lawful members present which was not a quorum.
A DISCLOSURE STATEMENT WAS NOT PROVIDED
PURSUANT TO N.J.S.A. 40:55D-48.1 and 48.2.
The owner of the property is Port Imperial South, LLC and is the applicant. The stock ownership disclosure statement simply says:
"Port Imperial South LLC is a New Jersey Limited Liability Company comprised of Roseland/Port Imperial South, LLC and Romulus Development Corp."
The statute requires a secondary disclosure of the ownership of Roseland/Port Imperial South, LLC and a similar disclosure as to Romulus Development Corp.
N.J.S.A. 40:55D-48.1 provides:
"Disclosure of owners of corporation or partnership applying for certain subdivisions or variances. A corporation or partnership allying to a planning board or a board of adjustment or to the governing body of a municipality for permission to subdivide a parcel of land into six or more lots, or applying for a variance to construct a multiple dwelling of 25 or more family units or for approval of a site to be used for commercial purposes shall list the names and addresses of all stockholders or individual partners owning at least 10% of its stock of any class or at least 10% of the interest in the partnership, as the case may be."
N.J.S.A. 40:55D-48.2 provides:
"Listing of names and addresses of stockholders holding 10% or more stock or 10% or greater interest in partnership. If a corporation or partnership owns 10% or more of the stock of a corporation, or 10% or greater interest in a partnership, subject to disclosure pursuant to section 1 of this act [40:55D-48.1], that corporation or partnership shall list the names and addresses of its stockholders holding 10% or more of its stock or of 10% or greater interest in the partnership, as the case may be, and this requirement shall e followed by every corporate stockholder or partner in a partnership, until the names and addresses of the noncorporate stockholders and individual partners, exceeding the 10% ownership criterion established in this act, have been listed."
N.J.S.A. 40:55D-48.3 provides:
"Approval of application. No planning board, board of adjustment or municipal governing body shall approve the application of any corporation or partnership which does not comply with this act."
Since there was no compliance with Section 48.2, pursuant to Section 48.3, the Planning Board was precluded from approving the application.
For all of the foregoing reasons it is respectfully requested that all of the approvals be invalidated.
DATED: July 29, 1999 SEGRETO & SEGRETO
Attorneys for Plaintiffs
By:
James V. Segreto
END OF LEGAL BRIEF
FWW Legal Brief, Part 11, Legal Argument, Points 7,8,9 & Conclusion Filed July 29, 1999Back to Legal Brief Index
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