                                NOT FOR PUBLICATION WITHOUT THE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-0032-17T1

LARRY PRICE,

         Plaintiff-Appellant/
         Cross-Respondent,

v.

LIBERTY PARK AT UNION
CITY, LLC,

         Defendant-Respondent/
         Cross-Appellant,

and

UNION CITY PLANNING BOARD,

     Defendant-Respondent.
______________________________

                   Argued July 10, 2018 – Decided February 20, 2019

                   Before Judges O'Connor and Moynihan.

                   On appeal from Superior Court of New Jersey, Law
                   Division, Hudson County, Docket No. L-1054-17.

                   Larry Price, appellant/cross-respondent, argued the
                   cause pro se.
            Michael R. Fink argued the cause for
            respondent/cross-appellant.

            Gregory F. Kotchick argued the cause for respondent
            (Durkin & Durkin, LLC, attorneys; Gregory F.
            Kotchick, of counsel and on the brief).

      The opinion of the court was delivered by

O'CONNOR, J.A.D.

      Plaintiff Larry Price appeals from a July 21, 2017 order dismissing his

complaint in lieu of prerogative writs against defendants Liberty Park at Union

City, LLC (Liberty Park) and Union City Planning Board (board). Defendant

Liberty Park cross-appeals from the same order. We affirm the July 21, 2017

order, rendering the cross-appeal moot.

      Liberty Park seeks to construct a forty-eight-unit residential building on a

vacant lot in Union City. It submitted an application to the board for site plan

approval and, in particular, a conditional use variance pursuant to N.J.S.A.

40:55D-70(d). As part of this application, Liberty Park also sought variances

for the parking lot, pursuant to N.J.S.A. 40:55D-70(c)(2), as well as certain

waivers. The site is located in the R District of Union City, which permits only

one, two, or three family dwellings, but conditionally permits a "Greyfield

Development," defined by ordinance as "a vacant building and/or property



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formerly used for industrial purposes or commercial purposes." UNION CITY,

NEW JERSEY REV. GEN. ORDINANCES § 223-5(C) (2013).

      The board conducted two hearings on Liberty Park's application; one was

held on April 26, 2016 (April meeting) and the other on May 24, 2016 (May

meeting).   The board consisted of nine members and two alternates.          Six

members, including two alternates, attended the April meeting; eight members,

also including two alternates, attended the May meeting. At the conclusion of

the May meeting the eight members voted unanimously to grant Liberty Park 's

application. A resolution and amended resolution were subsequently issued

memorializing the vote and the Board's findings.

      As a nine-member board, five members – whether or not an alternate –

had to be present at a meeting to constitute a quorum. See N.J.S.A. 40:55D-6

(providing "'[q]uorum' means the majority of the full authorized membership of

a municipal agency."). Significantly, four of those who attended the May

meeting had not attended the April meeting, and they did not listen to the tape

or read the transcript of the April meeting before the May one. See N.J.S.A.

40:55D-10.2 (providing that if a member of a municipal agency is absent from

a meeting at which a hearing was held, such member shall be eligible to vote on

the matter upon which the hearing was conducted if the member certifies in


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                                      3
writing that he or she read the transcript or listened to the recording of such

hearing).

      N.J.S.A. 40:55D-9 provides that no action shall be taken at any meeting

unless there is a quorum. Further, if a member misses a hearing during an

application process and has not reviewed the transcript or heard a recording of

that hearing pursuant to N.J.S.A. 40:55D-10.2, that member cannot be counted

as part of a quorum when the Board convenes to continue the hearing at a later

date. Garner v. Mountainside Bd. of Adjustment, 212 N.J. Super. 417, 426 (Law

Div. 1986).

      As stated, five members of Union City Planning Board constituted a

quorum, but four of the eight members who attended the May meeting had not

listened to the tape or read a transcript of the April meeting. Therefore, the May

meeting was conducted without a quorum of the board. Notwithstanding, at the

conclusion of such meeting the eight members present voted unanimously to

grant Liberty Park's application.

      Plaintiff filed a complaint in lieu of prerogative writs challenging the

resolution and amended resolution, arguing both were null and void because of

the absence of a quorum at the May meeting. Plaintiff also argued that what




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                                        4
Liberty Park sought to construct was not a Greyfield Development and, thus,

was not a permitted conditional use.

      The trial court agreed with plaintiff that the failure to have a quorum at

the May meeting invalidated the vote on Liberty Park's application at the May

meeting, making the amended resolution null and void. In accordance with the

remedy utilized under analogous circumstances in Schmidhausler v. Planning

Bd., 408 N.J. Super. 1 (App. Div. 2009), the trial court remanded the matter

back to the board so that the four members who had not attended the April

meeting could read the transcript or listen to the tape of such meeting. The court

directed that if such members certified to doing either the former or the latter,

all of the eight members could then vote on Liberty Park's application. The

court declined to decide the issue of whether Liberty Park's project was a

permitted conditional use.

      The record on remand indicates that those members present at the remand

hearing had either been present at or signed a certification stating he or she read

the transcript of the April meeting. The nine board members present at the

remand hearing voted unanimously in favor of Liberty Park's application; a

resolution memorializing that action was issued thereafter.




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                                        5
      Plaintiff filed a second complaint in lieu of prerogative writs challenging

the latest resolution. Among other things, in his complaint plaintiff contended

the May meeting was "a nullity" because of the absence of a quorum and,

therefore, those who voted on the application at the subsequent remand hearing

had "rel[ied] on a nullity to determine their vote."

      This argument, which plaintiff subsequently clarified, was the board

should not have conducted any business during the May meeting because there

was no quorum, making what occurred during the hearing a nullity. We note

plaintiff actively participated in the hearing without raising any objection to the

fact there was no quorum of the board present. In his second complaint, plaintiff

also asserted Liberty Park's proposed use was not a permitted conditional use.

The trial court ultimately rejected both arguments, determining both N.J.S.A.

40:55D-10.2 and the holding in Schmidhausler permitted the remedy the trial

court initially ordered. The court also found Liberty Park's proposed use was a

permitted conditional use.     On July 21, 2017, the court entered an order

dismissing plaintiff's complaint, and this appeal ensued.

      On appeal, plaintiff reprises the arguments he asserted before the trial

court. After reviewing the record and applicable legal principles, we have

determined they are without sufficient merit to warrant discussion in a written


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                                        6
opinion. R. 2:11-3(e)(1)(E). However, we make the following comments. In

Schmidhausler, a board member had failed to read the transcript or listen to the

tapes of one hearing. In that matter, we found the appropriate remedy to be as

follows.

            [T]he legislative intent is clear. It is to make sure that
            those who vote on Municipal Land Use Law (MLUL),
            N.J.S.A. 40:55D-1-129, applications are fully informed
            of what transpired during all the hearings on that
            application. Rather than denying the application
            outright or putting all of the parties to the cost and
            expense of an entire new hearing, a simple logical
            remedy is to remand the matter to the Board and have
            all current members deliberate and revote, with those
            who had not attended one or all of the hearings in this
            matter review the transcript of any meeting or meetings
            that they may have missed, certify they have done so,
            and then have them deliberate and vote as well.

            [Schmidhausler, 408 N.J. Super. at 13.]

      Pertaining to the contention the proposed use is not permitted as a

conditional use under the Greyfield Development ordinance, we note there was

ample evidence the subject property was formerly used for commercial

purposes, making the proposed use permitted under the subject ordinance.

      In its cross appeal, defendant Liberty Park asserts the following point for

our consideration:

            POINT I: PLAINTIFF'S CLAIM THAT THE [VOTE
            AT THE REMAND HEARING] WAS TAINTED BY

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                                        7
            THE BOARD'S EARLIER VOTE PRIOR TO
            REMAND AND IS, THEREFORE, A "NULLITY" IS
            BARRED BY THE DOCTRINES OF RES JUDICATA
            OR COLLATERAL ESTOPPEL AND REGARDLESS
            IS NOT SUPPORTED BY THE FACTS OF
            APPLICABLE LAW.

In light of our disposition of plaintiff's contentions, the cross-appeal is moot.

      Affirmed.




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