The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3372-23
A-0234-24
LOKAL STOCKTON LLC,
Plaintiff-Appellant,
v.
CITY OF CAPE MAY, CITY OF
CAPE MAY HISTORIC
PRESERVATION COMMISSION,
and CITY OF CAPE MAY
ZONING BOARD OF
ADJUSTMENT,
Defendants-Respondents.
_____________________________
Argued December 11, 2025 – Decided December 22, 2025
Before Judges Mawla, Bishop-Thompson, and Puglisi.
On appeal from the Superior Court of New Jersey, Law
Division, Cape May County, Docket No. L-0120-22.
Robert S. Baranowski, Jr., argued the cause for
appellant (Hyland Levin Shapiro, LLP, attorneys;
Robert S. Baranowski, Jr., and Peter A. Chacanias, on
the briefs).
Christopher Gillin-Schwartz (Gillin-Schwartz Law,
LLC) argued the cause for respondents City of Cape
May and City of Cape May Historic Preservation
Commission.
Victor R. Garlitos, III, argued the cause for respondent
City of Cape May Zoning Board of Adjustment
(KingBarnes, attorneys; Richard M. King, Jr., and
Marisa J. Hermanovich, on the brief).
PER CURIAM
These are consolidated appeals. In A-3372-23, plaintiff Lokal Stockton
LLC appeals from an August 25, 2023 order dismissing plaintiff's prerogative
writs claims against defendants City of Cape May, City of Cape May Historic
Preservation Commission (HPC), and City of Cape May Zoning Board of
Adjustment; a related order dated December 19, 2023, denying plaintiff's motion
to quash a subpoena; and a June 26, 2024 order granting defendants summary
judgment and dismissing the remainder of plaintiff's claims. In A-0234-24,
plaintiff challenges an August 9, 2024 order adjudicating its request for a stay
pending appeal and granting defendants' cross-motions to enforce litigants'
rights. We stayed both matters pending appeal and now vacate the stay and
affirm for the reasons expressed in this opinion.
A-3372-23
2
A-3372-23
In 2018, plaintiff purchased property in the Cape May historic district and
applied for a construction permit. The application was referred to the HPC,
which held a hearing and considered testimony from plaintiff's project manager,
who worked for an architectural firm, and appeared on plaintiff's behalf. The
HPC passed a resolution (the 2018 HPC Resolution) granting plaintiff a
certificate of appropriateness (COA) pursuant to certain conditions agreed to by
the project manager. Paragraph four of the resolution recited the following
reasons for the HPC's action and conditions for future approval:
a. The applicant previously received conceptual
approval. The final application has made two
changes: 1) rail detail; 2) stairs.
b. The subject property has been much modified
over the years. The proposed renovations are an
improvement.
c. The proposed railing system is too
contemporary for this building. The applicant
has agreed to redesign the railing system in the
Chippendale style.
d. The applicant has agreed to retain the original
front stair bridge design.
e. Other materials to be used will be a standing
seam metal roof, less than one-half inch;
Anderson Woodwright 400 Series windows;
A-3372-23
3
wood doors; brick foundation; wood fences; IPC
decking.
f. Applicant has agreed to use all cedar clapboard
siding. No Azec will be utilized, rather wood
materials.
g. Applicant will submit lighting plan,
foundation, pavers, and sealed architectural plans
to Review Committee for final approval.
h. All applicable design standards will be met.
In January 2019, plaintiff sought certain variances from the Cape May
Planning Board, including a variance for the surface material to pave the parking
area. Plaintiff's co-owners and the project manager relied upon the 2018 HPC
Resolution as part of the variance application. One co-owner represented the
project was consistent with the resolution's requirements regarding the railing
and the stairs. The Planning Board voted to permit pavers in the parking area
and reiterated HPC approval was required for the renovations.
In March 2019, the Zoning Board's engineer reviewed plaintiff's
application for compliance and notified both the Zoning and Planning Boards
plaintiff's architectural plans were revised to comply with the HPC conditions.
The engineer stated final approval from the HPC was required to deem the
application complete.
A-3372-23
4
Plaintiff made renovations and created a boutique micro-hotel with eight
apartment-style hotel rooms. The engineer and other city employees inspected
the property multiple times between April and December 2019. A July 9, 2019
inspection report questioned whether construction of a block wall was consistent
with the plans.
On July 19, 2019, the engineer inspected the property and notified
plaintiff's contractor of "non-compliant site plan issues," but the contractor
stated he was doing what the owner wanted. The engineer also noted plaintiff
used clamshells for the parking area, contrary to the Planning Board's approval
of pavers. The contractor believed the owner planned to seek a variance for
using the clamshells and requested a temporary certificate of occupancy (TCO)
to open the hotel in July 2019.
On July 24, 2019, the engineer informed the city construction official the
parking surface did not comply with the architectural plans but recommended
the issuance of a TCO. A TCO was issued two days later and subsequently
renewed on multiple occasions between August 25, 2019 and June 3, 2024.
In August 2019, plaintiff again sought variances and site-plan approval
from the Planning Board. The Board noted plaintiff had constructed a block
wall, which was not previously approved, and a railing system, which did not
A-3372-23
5
comply with the conditions in the 2018 HPC Resolution. Plaintiff agreed to
return to the HPC for approval of the deviations from the resolution's conditions.
The Planning Board also addressed plaintiff's use of clamshells for the
parking area. The city engineer explained clamshells were prohibited because
they were a potential safety hazard. On September 10, 2019, the Board passed
a resolution denying plaintiff's request for variances and referred the matter to
the HPC to decide whether the changes in the plans were acceptable.
Plaintiff applied to the HPC for final approval of the renovations. In
December 2019, the engineer inspected the property and found the fencing and
wall did not comply with HPC requirements, the parking surface used clamshells
instead of the approved pavers, and the architectural construction of the building
was inconsistent with plaintiff's site plan.
On January 6, 2020, the HPC considered plaintiff's application for final
site plan approval. Plaintiff presented the testimony and report of an expert in
historical reconstruction who opined the property contributed to the historic
district because many renovations were made in the twentieth century, which
altered the historical character of the building. The expert also claimed the
property was not in the historic district because it was across the street from a
cinder block building and a "massive" parking lot.
A-3372-23
6
One of plaintiff's co-owners testified he was unaware of the August 20,
2018 HPC hearing or the conditions the HPC imposed in the resultant resolution
because the project manager "kind of went rogue." The owner claimed he never
agreed to meet the HPC's conditions. Regardless, he asserted the conditions
were met because the city issued permits for all the construction.
The HPC denied plaintiff a COA because multiple items did not comply
with the standards required in the historic district. Plaintiff failed to: design the
railing system in the Chippendale style, retain the original front stair bridge
design, utilize a standing seam metal roof, and install the pavers. Also, plaintiff
constructed a fence and a wall without HPC approval. The HPC rejected the
expert's conclusion the property should not be considered part of the historic
district. Its findings were memorialized in a resolution dated April 20, 2020 (the
2020 HPC Resolution).
Plaintiff appealed from the HPC's determination claiming it was arbitrary,
capricious, and unreasonable. In June 2020, the Zoning Board informed plaintiff
its appeal application was incomplete. As of February 2022, it was still
incomplete. That month, the HPC's compliance officer corresponded with the
owner to resolve the dispute but was unsuccessful. The compliance officer
advised the owner, plaintiff was in violation of the HPC standards for the:
A-3372-23
7
foundation, roof, railing, front stair bridge, wood fencing, block wall, parking
area, and HVAC. The changes plaintiff made without HPC approval violated
city ordinances and had to be corrected. The compliance officer advised no
further TCOs would be issued after the expiration of the then-current TCO on
February 28, 2022.
In April 2022, plaintiff filed a complaint in lieu of prerogative writs ,
which alleged: the 2018 HPC Resolution was void because plaintiff was not
represented by counsel during the hearing preceding issuance of the resolution
(count one); the denial of plaintiff's application was arbitrary, capricious, and
unreasonable (count two); defendants should be equitably estopped from
denying plaintiff a COA (count three); laches (count four); and the court should
grant plaintiff a declaratory judgment (count five) and a preliminary injunction
(count six). The trial judge granted plaintiff preliminary injunctive relief and
directed defendants to continue granting plaintiff additional TCOs until final
adjudication of the matter. He also ordered plaintiff to submit whatever was
necessary to perfect its appeal before the Zoning Board.
On November 17, 2022, the Zoning Board decided plaintiff's appeal and
passed a resolution finding the 2018 HPC Resolution was not arbitrary,
capricious, or unreasonable. The Board noted plaintiff's project manager
A-3372-23
8
appeared before the HPC and made certain agreements, and the conditions set
forth by the HPC were a valid exercise of its discretion. Plaintiff proffered
testimony from a second expert, but the Board refused to consider it because it
was not presented to the HPC.
Plaintiff amended its complaint and requested: the Board be estopped
from limiting its appeal to the record made before the HPC (count five); a
preliminary injunction (count six); a finding the Board's denial of plaintiff's
appeal was arbitrary, capricious, and unreasonable (count seven); a declaratory
judgment (count eight); a finding the Board violated 42 U.S.C. § 1983 (count
nine) and due process (count ten); and a finding the city ordinance violated the
Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163 (count eleven).
The trial judge bifurcated the matter and ruled he would first decide
plaintiff's prerogative writs claims; counts one, two, five, seven, nine, ten, and
eleven. On August 25, 2023, the judge issued a written opinion dismissing
plaintiff's prerogative writs claims.
The judge concluded he did not need to address the circumstances of the
project manager's appearance before the HPC or whether counsel was required
in HPC proceedings because plaintiff had ratified the 2018 HPC Resolution and
its conditions through its actions. The record showed both co-owners "testified
A-3372-23
9
alongside this same 'rogue' project-manager in a Planning Board hearing several
months after the 2018 HPC hearing." Also, "[p]laintiff's counsel submitted the
HPC . . . [r]esolution for the Planning Board's consideration."
The judge concluded "even if [p]laintiff was not aware of the 2018 HPC
hearing and . . . [r]esolution at the time it occurred, [p]laintiff was certainly
aware of these acts when they appeared before the Planning Board." He found
"[p]laintiff expressly ratified this conduct through relying on the condition al
approval it received through the 2018 HPC Resolution as a means to attain
further approval from the Planning Board." Indeed, "[p]laintiff relied on the
HPC . . . [r]esolution when it was . . . beneficial to [it] and cannot now claim
ignorance as to its contents." Plaintiff's actions were "inconsistent with any
position other than one indicating an intent to adopt the acts of their project-
manager and the resolution he procured on behalf of [p]laintiff." The judge
observed "the Planning Board's resolution specifically noted that the [p]roperty
must comply with the requirements of the HPC and that HPC approval is
required. . . . Plaintiff's counsel did not object to the Planning Board's findings
or resolution."
The trial judge also dismissed plaintiff's argument the HPC's denial of a
COA for the hotel was arbitrary, capricious, and unreasonable. He reasoned
A-3372-23
10
because the 2018 HPC Resolution granting plaintiff conditional approval was
valid, it was not arbitrary for "the HPC to look at the hotel 'as-built' and
determine it deviated from the specifications or conditions . . . in the 2018 HPC
Resolution." Moreover, the HPC considered and rejected plaintiff's expert
testimony "that the building 'as-built' conformed to the HPC guidelines . . .
because [the expert] was focused on the Victorian era of homes and his belief
that the site should not have been considered a 'contributing' building." The
HPC explained a historic preservationist, not the HPC, inspects the buildings
"and determines based on the property's features whether it is a 'key building,'
'contributing building,' or [a] 'non-contributing building.'"
The judge noted "[a] property owner challenging their property's
designation must do so in a separate appeals process." Therefore, the HPC did
not act in an arbitrary, capricious, or unreasonable manner because its resolution
listed the deficiencies of plaintiff's application and both the resolution and the
record showed it "was willing to accept certain aspects of the hotel 'as[-]built' if
[p]laintiff was willing to alter others to be in conformity with the 2018 HPC
Resolution."
The judge rejected plaintiff's claims regarding the validity of a city
ordinance and whether the Zoning Board's determination was arbitrary,
A-3372-23
11
capricious, or unreasonable, which we need not discuss here. He then ordered
counts three, four, and eight should proceed to discovery, and maintained the
preliminary injunction regarding the continued issuance of TCOs sought in
count six.
During discovery, defendants subpoenaed plaintiff's project manager.
Plaintiff moved to quash the subpoena on grounds it sought privileged
information. It argued the subpoena was overly broad because the project
manager appeared before the Planning Board as an expert and the information
discoverable was subject to the work-product privilege. Plaintiff also claimed
the attorney-client privilege extended to the project manager. Alternatively, it
argued for a protective order to enable its attorney to review the documents
sought for privileged communications.
The judge denied the motion to quash on December 19, 2023. He rejected
the work-product privilege argument, reasoning the project manager's materials
and appearances on behalf of plaintiff "were not prepared in anticipation of
litigation, but rather for the repair and reconstruction of the hotel." The privilege
was also inapplicable because plaintiff persistently claimed the project manager
was a rogue architect rather than its expert witness. The attorney-client privilege
A-3372-23
12
did not apply because plaintiff's attorney did not retain the project manager.
"Rather, he was employed by [plaintiff] itself as an architect."
The project manager was deposed and confirmed he managed plaintiff's
project and worked for an architectural firm. He testified he attended the August
2018 HPC hearing and advised plaintiff's owners about the changes required by
the HPC. When asked whether plaintiff had given him authority to agree to the
conditions set by the HPC, he answered: "They wanted me to walk away from
that hearing with approval, so I would say yes."
In May 2024, defendants moved for summary judgment. In opposition,
plaintiff argued: it was unaware of the conditions in the 2018 HPC Resolution;
the issuance of building permits constituted de facto approval by the HPC; it
reasonably believed there was approval because the city failed to bring
violations to its attention; equitable estoppel and laches barred defendants from
requiring plaintiff to construct the hotel pursuant to the HPC resolution; and
summary judgment was inappropriate because the declaratory judgment,
equitable estoppel, and laches issues required the judge to assess credibility.
The trial judge issued a written decision granting summary judgment and
dismissed the remaining counts in plaintiff's complaint with prejudice on June
26, 2024. He found no genuine issues of material fact. Defendants were entitled
A-3372-23
13
to summary judgment as a matter of law because it was undisputed "[p]laintiff's
representative was aware of the required HPC approval for the final design of
the . . . [h]otel." He rejected plaintiff's claim it was unaware of the conditions
in the 2018 HPC Resolution because the deposition testimony of one of the
owners showed they never bothered "to ascertain the necessary conditions [for]
HPC approval. . . . [T]his inaction does not amount to a good faith or reasonable
reliance on the issuance of building permits as de facto approval." There was
"ample evidence suggesting [p]laintiff was on notice of the HPC conditions, and
the TCOs were reissued under the understanding that the noncompliant aspects
of the [h]otel must be brought into compliance with the HPC conditions."
Credibility was not an impediment to summary judgment because "the
[c]ity made no representations to [p]laintiff that would suggest the building
permit verified HPC approval of the nonconforming plans." Nor did the judge
have to assess the credibility of the owners' claim that they understood the
project was approved by speaking with the project manager because their
deposition testimony confirmed they "did not [act] reasonably[,] and in good
faith[,] rely upon representations of the [c]ity. Rather, [p]laintiff relied upon
representations of its own agent and its own ignorance of the HPC approval
conditions."
A-3372-23
14
The judge also rescinded the May 26, 2022 order imposing preliminary
restraints. He ruled defendants could compel plaintiff to reconstruct the hotel
in accordance with the HPC conditions.
A-0234-24
On June 28, 2024, the compliance officer notified plaintiff the eight items,
which violated the conditions in the 2018 HPC Resolution, remained
outstanding, and plaintiff would be subject to a daily fine if they were not
corrected. Plaintiff moved for a stay pending appeal. Defendants opposed the
motion and cross-moved to enforce litigants' rights and compel plaintiff to
comply with all eight items required for HPC approval.
On August 9, 2024, the trial judge denied the request for a stay, reasoning
that requiring plaintiff to comply with the eight items would not impair or
destroy its property. Therefore, plaintiff did not meet the legal standard for the
imposition of injunctive relief under Crowe v. De Gioia, 90 N.J. 126, 132-34
(1982). The judge observed plaintiff had been out of compliance with HPC
conditions for nearly five years during which it had earnings from operating its
hotel.
The judge granted defendants' motions to enforce litigants' rights but
stayed enforcement until December 3, 2024, the date the TCO was set to expire.
A-3372-23
15
Plaintiff was ordered to repair the eight items or reach an agreement with
defendants regarding the repair of those items by that date.
I.
A.
In A-3372-23, plaintiff argues the judge erred when he found it ratified
the 2018 HPC Resolution. It reiterates that it was an error to enforce the
resolution because it was not represented by counsel at the hearing leading to
the adoption of the resolution and the project manager was unauthorized to agree
to the HPC's conditions. Therefore, the resolution was ultra vires.
Plaintiff reasserts its arguments regarding credibility and claims summary
judgment could not be granted on the laches, declaratory judgment, and
equitable estoppel claims. It claims the judge ignored evidence that: defendants
failed to follow their own construction review process; plaintiff reasonably
relied to its detriment on the TCOs defendants issued to it; and yet defendants
blamed plaintiff for its non-compliance. Moreover, summary judgment was
improper where the ruling rests on expert testimony, namely, the expert plaintiff
hired to prove its building conformed with the historic district.
We review summary judgment orders de novo applying the same standard
as the trial court. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
A-3372-23
16
Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment must be granted "if
the pleadings, depositions, answers to interrogatories and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact challenged and that the moving party is entitled to a judgment or
order as a matter of law." R. 4:46-2(c). If there is no genuine issue of fact, we
then decide whether the trial court's ruling on the law was correct. Walker v.
Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258 (App. Div. 1987).
"Ratification is the affirmance of a prior act done by another, whereby the
act is given effect as if done by an agent acting with actual authority."
Restatement (Third) of Agency § 4.01 (A.L.I. 2006). Furthermore, "[a] person
ratifies an act by (a) manifesting assent that the act shall affect the person's legal
relations, or (b) conduct that justifies a reasonable assumption that the person
so consents." Ibid. "Ratification may be express or implied, and intent may be
inferred from the failure to repudiate an unauthorized act; from inaction; or from
conduct on the part of the principal which is inconsistent with any other position
than intent to adopt the act." Martin Glennon, Inc. v. First Fid. Bank, N.A., 279
N.J. Super. 48, 60 (App. Div. 1995) (quoting Thermo Contracting Corp. v. Bank
of N.J., 69 N.J. 352, 361 (1976) (citations omitted)).
A-3372-23
17
Pursuant to these principles, we affirm the finding plaintiff ratified the
conditions in the 2018 HPC Resolution for the reasons expressed in the trial
judge's opinion. The arguments plaintiff reprises on appeal against ratification
lack sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
We similarly reject plaintiff's assertion the trial judge made credibility
assessments or was required to make them to adjudicate the equitable estoppel,
laches, or declaratory judgment claims. Summary judgment on these claims was
predicated exclusively on the objective evidence in the record and credibility
played no factor. Accepting as true that plaintiff was unaware of the 2018 HPC
Resolution, the evidence showed plaintiff's counsel was in possession of the
resolution as early as January 2019, when they submitted it to the Planning
Board for a variance. Therefore, plaintiff's ratification extinguished the
estoppel, laches, and declaratory judgment claims.
Plaintiff's argument defendant failed to adhere to its own construction
review process was not relevant to the trial judge's decision. The relevant issue
was the HPC's denial of approval due to plaintiff's failure to comply with the
2018 HPC Resolution. Nor did the judge's decision turn on the expert testimony
because the testimony post-dated the resolution and was designed to question
A-3372-23
18
the conditions imposed in the HPC resolution. As we recounted, plaintiff's
expert argued the HPC's standards should not have even been applied to plaintiff
because the property was in the historic district.
The grant of TCOs to plaintiff did not undermine the judge's ruling in
favor of defendants. The record readily establishes the TCOs were granted to
give plaintiff time to comply with the conditions of the 2018 HPC Resolution;
nothing more, nothing less.
B.
Plaintiff argues the HPC's 2020 decision to deny a COA was arbitrary,
capricious, and unreasonable because it was predicated upon compliance with
the 2018 HPC Resolution rather than whether the completed hotel was consistent
with city guidelines. It reiterates the renovations it completed were appropriate
to the historical nature of the building's location. Plaintiff claims the judge also
erred when he concluded it was unwilling to compromise with the HPC. It
claims it did not willfully fail to cooperate with defendants. Instead, defendants
frustrated plaintiff's efforts by first approving its application at the HPC and then
requiring it to obtain approval from the Planning Board or the Zoning Board
only to then indicate the actions of the latter boards could impact the HPC's final
approval.
A-3372-23
19
We review municipal-board decisions under "the same standard as the trial
court." Cohen v. Bd. of Adjustment, 396 N.J. Super. 608, 614-15 (App. Div.
2007). This requires us to recognize that a board's "peculiar knowledge of local
conditions" allows it "wide latitude in the exercise of delegated discretion."
Price v. Himeji, LLC, 214 N.J. 263, 284 (2013) (quoting Kramer v. Bd. of
Adjustment, 45 N.J. 268, 296 (1965)).
Therefore, "[w]e give deference to the actions and factual findings of local
[b]oards." Hoboken for Responsible Cannabis, Inc. v. City of Hoboken Plan.
Bd., 480 N.J. Super. 357, 371 (App. Div. 2024). We do not substitute our "own
judgment for that of the municipal board invested with the power . . . to pass
upon the application." Kenwood Assocs. v. Bd. of Adjustment, 141 N.J. Super.
1, 4 (App. Div. 1976).
Where a party contests the decision of a local board, we consider "whether
the board could reasonably have reached its decision on the record." Jock v.
Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005). A municipal board's
decision "is presumptively valid, and . . . reversible only if arbitrary, capricious,
and unreasonable." Smart SMR of N.Y., Inc. v. Fair Lawn Bd. of Adjustment,
152 N.J. 309, 327 (1998) (quoting Sica v. Bd. of Adjustment, 127 N.J. 152, 166-
67 (1992)).
A-3372-23
20
The MLUL defines the role of an HPC as follows:
The historic preservation commission shall have
the responsibility to:
a. Prepare a survey of historic sites of the
municipality pursuant to criteria identified in the survey
report;
b. Make recommendations to the planning board
on the historic preservation plan element of the master
plan and on the implications for preservation of historic
sites of any other master plan elements;
c. Advise the planning board on the inclusion of
historic sites in the recommended capital improvement
program;
d. Advise the planning board and board of
adjustment on applications for development pursuant to
section 24 of this amendatory and supplementary act;
e. Provide written reports pursuant to section 25
of this amendatory and supplementary act on the
application of the zoning ordinance provisions
concerning historic preservation; and
f. Carry out such other advisory, educational and
informational functions as will promote historic
preservation in the municipality.
[N.J.S.A. 40:55D-109.]
Having considered the record pursuant to these principles, we reject the
argument the HPC's decision to reject the renovations performed by plaintiff
was arbitrary, capricious, or unreasonable. The 2020 HPC Resolution
A-3372-23
21
articulated ten reasons why plaintiff's building did not meet the standards for a
historical building and why it denied plaintiff a COA. The testimony and
evidence in the record supports the conclusions reached by the HPC. Plaintiff's
arguments to the contrary lack merit.
C.
Plaintiff challenges the denial of the motion to quash. It reiterates the
work-product privilege applied because the hearing before the HPC was like a
trial and plaintiff's communications with the project manager were protected.
We are unpersuaded and affirm for the reasons expressed in the trial judge's
decision, and add the following comments with respect to the work-product
privilege.
"[P]ursuant to Rule 4:10-2(a), parties may obtain discovery regarding any
non-privileged matter that is relevant to the subject of a pending action or is
reasonably calculated to lead to the discovery of admissible evidence." In re
Liquidation of Integrity Ins. Co., 165 N.J. 75, 82 (2000). A nonparty may be
compelled by subpoena to produce "books, papers, documents, electronically
stored information, or other objects designated therein." R. 1:9-2. Rule 4:10-
2(c) permits the sort of discovery allowed under
R[ule] 4:10-2(a) and prepared in anticipation of
litigation or for trial by or for another party or by or for
A-3372-23
22
that other party's representative . . . only upon a
showing that the party seeking discovery has
substantial need of the materials in the preparation of
the case and is unable without undue hardship to obtain
the substantial equivalent of the materials by other
means.
In exercising its discretion over the discovery process, a trial court should
"balanc[e] the beneficial effects of discovery against its disadvantages." State
ex rel W.C., 85 N.J. 218, 224 (1981). To this end, the trial court may "quash or
modify the subpoena," Rule 1:9-2, or order that "discovery not be had," Rule
4:10-3(a). We review such decisions for abuse of discretion. Bender v. Adelson,
187 N.J. 411, 428 (2006).
"In determining whether a document is protected from disclosure by the
work-product privilege, the threshold question is whether the document was
'prepared in anticipation of litigation or for trial.'" Miller v. J.B. Hunt Transp.,
Inc., 339 N.J. Super. 144, 148 (App. Div. 2001) (alteration omitted) (quoting R.
4:10-2(c)). "If a document was prepared 'in the ordinary course of business'
rather than in anticipation of litigation, it is not entitled to protection as work
product." Ibid. (quoting Payton v. N.J. Tpk. Auth., 148 N.J. 524, 554 (1997)).
The record shows the documents sought from the project manager were
not privileged because they were not prepared in anticipation of litigation. The
documents were relevant because they went to the heart of the parties' dispute
A-3372-23
23
about whether plaintiff was aware of the outcome of the August 2018 HPC
hearing. The denial of plaintiff's motion to quash was not an abuse of discretion.
II.
In A-0234-24, plaintiff argues the trial judge erred when he concluded it
did not meet the legal standard for injunctive relief under Waste Management
of New Jersey, Inc. v. Union County Utilities Authority, 399 N.J. Super. 508,
519-20 (App. Div. 2008). Further, the judge's denial of a stay pending appeal
was erroneous because plaintiff was required to repair the building or face
significant fines or closure of its business while its appeal is heard. The judge
did not consider plaintiff's likelihood of success on appeal from the summary
judgment decision. He did not balance these equities when he denied injunctive
relief. Plaintiff also asserts the judge erred when he granted defendants
enforcement because there was no prior order obliging plaintiff's compliance,
and defendants never sought affirmative relief to be entitled enforcement of
litigant's rights.
These arguments are unpersuasive and, in the case of the injunctive relief
and stay, largely moot given our affirmance in the companion appeal. However,
some comment is necessary.
A-3372-23
24
In Waste Management, we stated the issuance of an interlocutory
injunction is an exercise of judicial discretion, and a court may "place less
emphasis on a particular Crowe factor if another greatly requires the issuance of
the remedy." Id. at 520. Notably, we held "when the public interest is greatly
affected, a court may withhold relief despite a substantial showing of irreparable
injury to the applicant." Ibid.
Pursuant to these principles, we discern no error because there was no
evidence of irreparable harm to plaintiff by having to comply with the HPC's
conditions. The expenditure or loss of money, in this case to properly renovate
the property, certainly was not evidence of irreparable harm. Crowe, 90 N.J. at
132-33. Moreover, the trial judge properly balanced the public's interest in
assuring plaintiff's compliance with the HPC standards and preserving the
character of the historic district against the financial ramifications to plaintiff.
The lengthy amount of time plaintiff had to comply with those standards or reach
another resolution with defendants, while also being permitted to open and
operate its hotel, does not convince us there was an abuse of discretion.
We reach a similar conclusion regarding plaintiff's challenge to the
enforcement proceedings. Pursuant to Rule 1:10-3, a court has the inherent
power to coerce a party into compliance with a prior order. Pasqua v. Council,
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25
186 N.J. 127, 140 (2006). We will not disturb a trial judge's exercise of authority
under Rule 1:10-3 absent abuse of discretion resulting in injustice. See
Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988).
When plaintiff moved for a stay, defendants responded with a cross-
motion to enforce litigant's rights and compel compliance with the HPC
conditions and a separate cross-motion to compel plaintiff to install the pavers
in its parking area. As noted in the companion appeal, plaintiff was unsuccessful
in challenging the conditions imposed by the HPC, and defendants not only
prevailed on summary judgment and secured dismissal of plaintiff's complaint,
but obtained an order rescinding the restraints imposed in favor of plaintiff,
meaning defendants were entitled to enforcement of the HPC conditions.
Therefore, as a matter of fact and law, the trial judge could exercise his authority
to grant defendants enforcement of litigant's rights and did not abuse his
discretion.
III.
Finally, the stay we issued in A-3372-23 and A-0234-24 is vacated. To
the extent we have not addressed an argument raised in either appeal, it is
because it lacks sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
A-3372-23
26
Affirmed in A-3372-23 and A-0234-24.
A-3372-23
27