noting that appellant counsel's submission of "an affidavit and other documentary material which was not before the trial court and is improperly before us" is "a gross violation of appellate practice and rules[.]"
How later courts described this case
- noting that appellant counsel's submission of "an affidavit and other documentary material which was not before the trial court and is improperly before us" is "a gross violation of appellate practice and rules[.]"
- noting that "[a]n action to review a zoning board decision must be commenced not later than forty-five days from the publication of a notice of the board's determination." (citing R. 4:69-6(b)(3))
- "Municipal action will be overturned by a court if it is arbitrary, capricious or unreasonable."
Written by the judges who cited it.
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NOT FOR PUBLICATION WITHOUT THE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 NO. A-4434-18T4
LARRY PRICE,
Plaintiff-Respondent,
v.
MARTIN MARTINETTI,
Construction Code Official
City of Union City,
Defendant-Respondent,
and
806 PALISADES REALTY, LLC,
Defendant-Appellant.
____________________________
Argued telephonically August 25, 2020 –
Decided September 11, 2020
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-4271-18.
J. Alvaro Alonso argued the cause for appellant.
Larry Price, respondent, argued the cause pro se.
Scarinci & Hollenbeck, LLC, attorneys for respondent
Martin Martinetti (Angelo Auteri, on the brief).
PER CURIAM
Defendant 806 Palisades Realty, LLC (806 Palisades) appeals from the
May 3, 2019 Law Division order, invalidating its July 19, 2018 construction
permit because it failed to renew the underlying site plan approved back in 2004.
We affirm.
We glean these facts from the record. Plaintiff Larry Price is "a resident
and taxpayer" of Union City.1 On October 22, 2018, plaintiff filed an order to
show cause (OTSC) and verified complaint against 806 Palisades and Martin
Martinetti in his official capacity as a construction code official in the Union
City Building Department (Building Department). The complaint and OTSC
stemmed from the Union City Zoning Board of Adjustment's adoption of a
resolution on April 8, 2004 (the 2004 resolution), granting a site plan approval
to Lam Investments, 806 Palisades's predecessor, to construct a four-story,
1
"[A]s a citizen and taxpayer," Price had standing to challenge the contemplated
construction because of its "potential impact on the integrity of the zoning plan
and the community welfare." Booth v. Bd. of Adjustment, 50 N.J. 302, 305
(1967).
A-4434-18T4
2
eleven-unit multifamily dwelling at 806 Palisade Avenue in Union City (the site)
as "a conditional use" under the 1974 Union City Zoning Ordinance.2
Between 2004 and 2009, construction work was performed at the site,
including "demolition of an existing three[-]family house and . . . construction
of foundation walls." However, no construction activities occurred after 2009.
Nearly a decade after construction had ceased, on January 3, 2018, 806 Palisades
applied for a new construction permit for the site. On July 19, 2018, Martinetti,
on behalf of the Building Department, issued a construction permit to 806
Palisades (2018 construction permit) based on the site plan approved in the 2004
resolution.
On October 1, 2018, Price, whose home was located "two blocks" from
the site, "noticed that the fence at the front of the site had been opened," and, by
October 8, 2018, 806 Palisades had posted the 2018 construction permit at the
site. In his complaint, relying on N.J.A.C. 5:23-2.16(b), which invalidates a
permit "if the authorized work is suspended or abandoned" for six months after
commencement of the work, Price alleged that because "all construction was
2
The 2004 resolution specified that the site was "located in a R, Mixed
Residential Zone," where "limited multifamily development [was] a permitted
conditional use" pursuant to the 1974 ordinance.
A-4434-18T4
3
suspended for a period . . . in excess of six months, . . . the original [2004
approvals were] invalid and [could] not serve as a basis of construction in 2018."
Price further alleged that "the proposed structure for [the site was] now a
prohibited use" under a March 23, 2012 Union City Ordinance, which no longer
approved as a permissible conditional use the type of multifamily dwellings
previously approved under the 1974 ordinance. According to Price, because
"the approvals contained in the [2004] resolution [were] now invalid," and "[a]ll
periods of statutory protection [had] expired," he demanded the Building
Department issue and enforce a "Stop Work Order" (SWO) upon 806 Palisades,
and sought a declaration that the 2004 resolution granting site plan approval was
"null and void."
Two days after Price filed the complaint and OTSC, on October 24, 2018,
the Building Department issued a SWO to 806 Palisades, advising that the site
plan required new approval from the Zoning Board. On November 13, 2018,
806 Palisades appealed the SWO's issuance to the Hudson County Construction
Board of Appeals.
On February 15, 2019, following a hearing on the OTSC at which only
Price, appearing pro se, and counsel for Martinetti appeared, the trial judge
determined that because there was already a SWO in effect, Price's application
A-4434-18T4
4
for "emergent relief" failed to meet the standard enunciated in Crowe v. De
Gioia, 90 N.J. 126 (1982). The judge then set a briefing schedule for the parties
to address the remaining issues in Price's complaint.
On April 17, 2019, the judge conducted oral argument on the remaining
issues. Once again, only Price and Martinetti's counsel appeared, despite 806
Palisades being notified of the proceedings and "ha[ving] a major interest in
th[e] case." Following oral argument, in a May 3, 2019 written decision, first,
the judge found the "[SWO] issue to be moot" because "[t]o date," the judge had
"not been informed that the SWO ha[d] been revoked" and thus "presum[ed] that
the SWO [was] still in effect." 3
Turning to Price's demand that the 2004 resolution be voided, the judge
determined that the request was "time barred" because pursuant to Rule 4:69-
6(a), actions in lieu of prerogative writs challenging a zoning board's resolution
approving an application must be brought within "[forty-five] days after the
accrual of the right to the review, hearing or relief claimed."4 The judge pointed
3
On May 31, 2019, shortly after the judge issued her decision in this matter,
the SWO and 806 Palisades's pending appeal before the Construction Board of
Appeals were withdrawn.
4
See Brunetti v. New Milford, 68 N.J. 576, 584-85 (1975) (finding that Rule
4:69-6(a) "requires actions in lieu of prerogative writs to be commenced no later
A-4434-18T4
5
out that Price's 2018 complaint and OTSC were filed fourteen years after the
challenged 2004 resolution.
However, the judge determined that the "2018 construction permit [was]
invalid because the 2004 site plan had lapsed." The judge
agree[d] with plaintiff that on [April 8, 2004], 806
Palisades received final site plan approval, which [was]
good for two years. If in 2006, defendant had applied
for a one[-]year extension, that would have been
enough to carry [it] into the extension period which
would have extended the approval until [December 31,
2016]. [5] If they did not apply for the one[-]year
extension, the site plan approval died in 2006. Notably,
defendant did not contest any of plaintiff's
arguments . . . .
than [forty-five] days after the accrual of the right to the review or relief
claimed."); Adams v. Delmonte, 309 N.J. Super. 572, 578 (App. Div. 1998)
(noting that "[a]n action to review a zoning board decision must be commenced
not later than forty-five days from the publication of a notice of the board's
determination." (citing R. 4:69-6(b)(3))).
5
Under the applicable Permit Extension Act (PEA), N.J.S.A. 40:55D-136.1 to
-136.6, "the Legislature . . . 'automatically suspend[ed]' government
'approval[s]' related to the physical 'development' of property from running out
during the 'extension period.'" Pinelands Pres. All. v. State, Dep't of Envtl. Prot.,
436 N.J. Super. 510, 543 (App. Div. 2014) (alterations in original) (quoting
N.J.S.A. 40:55D-136.3 and -136.4(a)). The extension period is defined as
"beginning January 1, 2007 and continuing through December 31, 2015;
provided, however, that the period in Superstorm Sandy-impacted counties shall
continue through December 31, 2016." N.J.S.A. 40:55D-136.3.
A-4434-18T4
6
The judge concluded that because "the decision to issue the permit was arbitrary,
capricious and unreasonable," 806 Palisades "must seek a new site plan approval
and construction site permit." See Bryant v. City of Atl. City, 309 N.J. Super.
596, 610 (App. Div. 1998) ("Municipal action will be overturned by a court if it
is arbitrary, capricious or unreasonable."). The judge entered a memorializing
order and this appeal followed.
On appeal, 806 Palisades argues that the judge "erred in finding that the
2004 approvals had expired prior to the issuance of the 2018 construction
permit[]" because "the dates stated on plan review logs issued by the [B]uilding
[D]epartment" and "[a]pplications for [v]ariations prepared in connection with
the permit application ranging from 2015 through 2017" demonstrate "that the
construction permit application was timely filed." To support its argument, 806
Palisades presents for the first time on appeal evidence that was not presented
to the judge because 806 Palisades failed to appear or participate in the trial
court proceedings. 806 Palisades offers no explanation for its failure to
participate, and makes no claim that it was not properly served or duly notified
of the proceedings.
We are mindful of the "well-settled principle that [we] will decline to
consider questions or issues not properly presented to the trial court when an
A-4434-18T4
7
opportunity for such a presentation is available 'unless the questions so raised
on appeal go to the jurisdiction of the trial court or concern matters of great
public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)
(quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App.
Div. 1959)). Stated differently, subject to the two exceptions, any issue raised
that was not presented to the trial court likewise falls outside the scope of our
appellate jurisdiction and is not reviewable as a matter of law.
Likewise, because the record on appeal should consist only of filings
submitted to the trial court, our review is restricted to evidence presented to the
trial court. See R. 2:5-4(a) (stating "[t]he record on appeal shall consist of all
papers on file in the court . . . below," inferring that it is improper to present
evidence on appeal that was not before the trial court). "[I]f not part of the
record below, we cannot consider these matters." Venner v. Allstate, 306 N.J.
Super. 106, 111 (App. Div. 1997). See State v. Bogen, 13 N.J. 137, 144 (1953)
("We are bound in our consideration of an appeal to what appears of record[.]");
Middle Dep't Inspection Agency v. Home Ins. Co., 154 N.J. Super. 49, 56 (App.
Div. 1977) (noting that appellant counsel's submission of "an affidavit and other
documentary material which was not before the trial court and is improperly
before us" is "a gross violation of appellate practice and rules[.]").
A-4434-18T4
8
Here, 806 Palisades does not dispute that the evidence was not presented
to the judge, and the issues are thus raised for the first time on appeal. We are
satisfied the issues raised are neither jurisdictional in nature nor substantially
implicate the public interest. Moreover, the record reveals that 806 Palisades
was provided the requisite notice, obtained counsel, and was afforded ample
opportunity to present the evidence and issues to the trial court it now seeks to
present for the first time on appeal. "Our scope of review, however, is limited
to whether the trial court's decision is supported by the record as it existed at the
time of [the hearing]." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J.
261, 278 (2007). As a result, we will not address 806 Palisades's appellate
arguments, and affirm substantially for the reasons expressed in the judge's
cogent written decision.
Affirmed.
A-4434-18T4
9