                                 NOT FOR PUBLICATION WITHOUT THE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-0858-18T2

JSTAR, LLC,

          Plaintiff-Appellant,

v.

BRICK TOWNSHIP ZONING
BOARD OF ADJUSTMENT,
and RTS IV, LLC, a/k/a JOSEPH
R. PRESTIFILIPPO, JR.,

     Defendants-Respondents.
_____________________________

                   Submitted March 23, 2020 – Decided June 4, 2020

                   Before Judges Rothstadt, Moynihan and Mitterhoff.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Ocean County, Docket No. L-0389-18.

                   R.C. Shea & Associates, PC, attorneys for appellant
                   (Robert C. Shea, of counsel and on the briefs; Dina M.
                   Vicari and Robert C. Shea II, on the briefs).

                   Weiner Law Group LLP, attorneys for respondent Brick
                   Township Zoning Board of Adjustment (Ronald D.
                   Cucchiaro, of counsel and on the brief; Richard
                   Brigliadoro, on the brief).
            King Kitrick Jackson McWeeney & Wells, LLC,
            attorneys for respondent RTS IV, LLC (John J. Jackson,
            III, of counsel and on the brief; Jilian L. McLeer, on the
            brief).

PER CURIAM

      Defendant RTS IV, LLC (RTS) sought preliminary and final major

subdivision approval, design waivers and variance relief from defendant Brick

Township Zoning Board of Adjustment (Board) (collectively defendants) to

permit construction of single-family homes and ancillary improvements. The

owner of an adjacent property, plaintiff JSTAR, LLC, objected and, prior to the

completion of Board action on the application, filed a complaint in lieu of

prerogative writs alleging the Board's violations of the Open Public Meetings

Act (OPMA), N.J.S.A. 10:4-1 to -21, rendered any Board action in 2018 void.1

Plaintiff appeals from the trial court's orders granting defendants' motions for

summary judgment, dismissing plaintiff's complaint with prejudice, and denying

plaintiff's cross-motion for summary judgment and, similarly, dismissing its

complaint with prejudice.




1
  Although the complaint also alleged the Board violated the Municipal Land
Use Law, N.J.S.A. 40:55D-1 to -163, plaintiff's appellate argument is limited to
the alleged OPMA violations.
                                                                         A-0858-18T2
                                        2
      Plaintiff's present arguments center on the Board's failure to publish

adequate notice of its January 3, 2018 reorganization meeting and its January

17, 2018 regular meeting. In its merits brief, plaintiff contends:


            POINT ONE

            THERE IS NO QUESTION OF MATERIAL FACT
            THAT    OPMA    HAS    BEEN    VIOLATED,
            THEREFORE,    [PLAINTIFF'S]   COMPLAINT
            SHOULD NOT HAVE BEEN DISMISSED AND THE
            RELIEFS    OUTLINED    IN   [PLAINTIFF'S]
            COMPLAINT SHOULD HAVE BEEN GRANTED
            BY THE TRIAL COURT.

                  A. [PLAINTIFF'S] COMPLAINT RELIEF
                  REQUESTING     THAT  ALL   BOARD
                  DETERMINATIONS AND ACTIONS TAKEN
                  AT THE REORGANIZATION, JANUARY
                  17TH REGULAR MEETING AND THE
                  JANUARY 31ST SPECIAL MEETING, BE
                  VOIDED DUE TO OPMA VIOLATIONS,
                  SHOULD HAVE BEEN GRANTED BY THE
                  TRIAL COURT.

                  B. [PLAINTIFF'S] COMPLAINT RELIEF
                  REQUESTING TO VOID THE BOARD'S
                  DETERMINATION TO SCHEDULE THE
                  JANUARY 31ST SPECIAL MEETING TO
                  HEAR . . . RTS['S] APPLICATION SHOULD
                  HAVE BEEN GRANTED BY THE TRIAL
                  COURT.

                  C. [PLAINTIFF'S] COMPLAINT RELIEF
                  REQUESTING REVERSAL OF THE BOARD'S
                  ACTION TO ACCEPT THE BOARD

                                                                      A-0858-18T2
                                        3
ATTORNEY'S DETERMINATION THAT THE
STRICT INTENT OF THE OPMA WAS
MERELY "SUBSTANTIALLY COMPLIED",
WHEREIN . . . RTS['S] APPLICATION
SHOULD HAVE BEEN STOPPED AND
REQUIRED TO RE-START, SHOULD HAVE
BEEN GRANTED BY THE TRIAL COURT.

D. [PLAINTIFF'S] COMPLAINT RELIEF
REQUESTING THE BOARD TO TAKE
REMEDIAL AND CURATIVE MEASURES TO
COMPLY    WITH   THE   PROCEDURAL
REQUIREMENTS OF THE OPMA, FOR THE
REORGANIZATION,    JANUARY    17TH
REGULAR AND JANUARY 21ST SPECIAL
MEETINGS,   SHOULD    HAVE   BEEN
GRANTED BY THE TRIAL COURT.

E.     [PLAINTIFF'S]      COMPLAINT
REQUESTING THAT THE BOARD BE
PROHIBITED FROM CONDUCTING ANY
FUR[TH]ER MEETINGS FOR . . . RTS['S]
APPLICATION INCLUDING BUT NOT
LIMITED TO FEBRUARY 20, 2018, SHOULD
HAVE BEEN GRANTED BY THE TRIAL
COURT.

F. [PLAINTIFF'S] COMPLAINT RELIEF
REQUESTING THAT ALL TESTIMONY AND
EXHIBITS PRESENTED BEFORE THE
BOARD AND DETERMINATIONS MADE BY
THE BOARD ON . . . RTS['S] APPLICATION
ARE DEEMED NULL AND VOID AND RTS
MUST RE-START ITS APPLICATION
BEFORE THE BOARD, SHOULD HAVE
BEEN GRANTED BY THE TRIAL COURT.



                                         A-0858-18T2
                4
            POINT TWO

            THE TRIAL COURT IGNORED THE UNDISPUTED
            FACTS AND IMPROPERLY CONCLUDED THAT
            THE BOARD PROPERLY COMPLETED THE
            PROCESS OF RATIFICATION TO RECTIFY THE
            OPMA VIOLATIONS.

            POINT THREE

            THE TRIAL COURT'S DECISION IMPROPERLY
            STATED THE FACTS OF THE CASE, REFUSED TO
            FOLLOW APPLICABLE LEGAL STANDARDS
            AND LONGSTANDING CASE LAW AND
            ADDRESS ALL LEGAL ISSUES RAISED BY
            [PLAINTIFF].

            POINT FOUR

            THE STANDARD OF REVIEW OF SUMMARY
            JUDGMENT    MOTIONS     PERMITS    THIS
            APPELLATE COURT TO REVERSE THE
            DETERMINATIONS OF THE TRIAL COURT.


We agree the Board's multiple failures to comply with the OPMA require

reversal of the trial court's orders and remand to the Board for proceedings

consistent with this decision.

      The Board conducted its reorganization meeting on January 3, 2018, at

which it adopted a revised 2018 annual meeting schedule and appointed the

Board chairman, vice chairman, secretary, attorney, engineer, court reporter and

conflict planner. RTS's application was not considered at the meeting.

                                                                         A-0858-18T2
                                       5
        At the January 17, 2018 regular meeting, the Board chairman announced

RTS's application would not be heard because the meeting was not properly

noticed, and would be carried to a special meeting on January 31, 2018. 2

        At the January 31 meeting, plaintiff's counsel challenged the Board's

jurisdiction.   Specifically, he noted the earlier January meetings were not

included in the 2017 annual meeting schedule that was published only in the

Asbury Park Press (The Press). He also observed that notice of those early-

January meetings appeared only in the annual meeting schedule published in a

January 18, 2018 edition of The Press—after the meetings were held. Though

counsel conceded proper notice was provided for the January 31 meeting, he

argued to the Board that its failure to comply with the OPMA provisions

regarding newspaper notice of the two earlier meetings in January rendered any

actions at those meetings as well as the January 31 meeting voidable.

        The Board's counsel agreed that the annual meeting schedule that included

the early-January meetings was published on January 18, only in The Press.

However, because notices of both those meetings were posted on the bulletin

board at the Board's meeting place and on the internet, and was sent by emai l to



2
    Plaintiff failed to provide a transcript of the January 17, 2018 meeting.


                                                                                A-0858-18T2
                                          6
The Press on January 12, he opined the Board "did meet the requirement for

adequate notice [under the OPMA], except for [the requirement that notice be

mailed to] the two newspapers."         He commented those steps constituted

"substantial compliance" with the OPMA, and invalidation of the Board's

actions was not warranted.

        Plaintiff filed its complaint in the instant matter on February 16, 2018.

The Board published notice of a February 21, 2018 special meeting 3 in The Press

and The Ocean Star; the notice stated the Board was going to readopt its 2018

meeting dates. A transcript of that meeting was not provided in the appeal

record. In its merits brief, however, plaintiff admits the Board readopted its

2018 annual meeting schedule; the record reflects the schedule was published

on February 27, 2018, 4 only in The Press. The Board, in its merits brief, avers

RTS's application was not heard at that meeting.

        The record contains only partial transcripts of the Board's August 15, 2018

and September 5, 2018 regular meetings. The August 15 transcript reflects the

ostensible readoption of the Board's "appointment of officers and professionals



3
  We note a February 21, 2018 regular meeting appears in the annual meeting
schedule published on January 18, 2018.
4
    The merits brief mistakenly lists the date as February 27, 2017.
                                                                            A-0858-18T2
                                         7
to 2018[.]"    The September 5 transcript reflects the Board's approval of

"resolutions to reappoint [its] attorney and . . . professionals," including the

reappointment of the Board's engineer, planner, court reporter, and the

reappointment of the Board chairman, vice chairman and secretary. The record

reflects notice of both the August 15 and September 5 meetings were published

in only one newspaper.

      We review the trial court's summary judgment decision de novo, applying

the same legal standard as the trial court. Wakefern Food Corp. v. Liberty Mut.

Fire Ins. Co., 406 N.J. Super. 524, 538 (App. Div. 2009). Thus, we consider

"whether the evidence presents a sufficient disagreement to require submission

to a jury [or trier of fact] or whether it is so one-sided that one party must prevail

as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso P.A., 189

N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 536 (1995)). If there is no genuine issue of material fact, we decide

"whether the trial court correctly interpreted the law." Massachi v. AHL Servs.,

Inc., 396 N.J. Super. 486, 494 (App. Div. 2007). "A trial court's interpretation

of the law and the legal consequences that flow from established facts are not

entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995).


                                                                              A-0858-18T2
                                          8
      Notwithstanding the trial court's finding that the Board rectified its failure

to include the January 3 and January 17, 2018 regular meetings in the annual

meeting schedule by publishing same "later on in the month" in both The Press

and The Ocean Star, the appellate record reveals that the annual meeting

schedule published on January 18, 2018, was published only in The Press. Even

when the schedule was readopted in February 2018, it was again published only

in The Press. N.J.S.A. 10:4-18 requires that a public body, such as the Board,

mail the annual meeting notice to at least two newspapers designated by the

public body pursuant to N.J.S.A. 10:4-8(d)(2).5 We see no proof that the annual

meeting notice was mailed to The Ocean Star. Thus, there was no advance

notice of the January 3 and January 17, 2018 meetings.

      Absent notice under N.J.S.A. 10:4-18, a public body must give "adequate

notice" of a meeting in compliance with N.J.S.A. 10:4-8(d), which provides in

pertinent part: "'Adequate notice' means written advance notice of at least


5
    The statute also requires the public body to "post and maintain posted" the
annual meeting notice throughout the year in a public place reserved for such or
similar announcements, N.J.S.A. 10:4-18 and N.J.S.A. 10:4-8(d)(1), and submit
it to the municipal clerk, county clerk and the New Jersey Secretary of State as
dictated by N.J.S.A. 10:4-8(d)(3). The mandated posting, mailing and
submission must be done "at least once each year, within [seven] days following
the annual organization or reorganization meeting" or by January 10 if no such
a meeting is held. N.J.S.A. 10:4-18.


                                                                             A-0858-18T2
                                         9
[forty-eight] hours, giving the time, date, location and, to the extent known, the

agenda of any regular, special or rescheduled meeting, which notice shall

accurately state whether formal action may or may not be taken[.]" Notice must

be posted in the same manner as required for the annual meeting schedule.

N.J.S.A. 10:4-8(d)(1). It must also be "mailed, telephoned, telegrammed, or

hand delivered to at least two newspapers" designated in the same manner as

those to which an annual meeting notice is to be mailed. N.J.S.A. 10:4-8(d)(2).

And, it must be submitted in the same manner as the annual meeting notice with

the clerks and Secretary of State. N.J.S.A. 10:4-8(d)(3).

      The procedures required by the OPMA are meant to advance the

Legislature's declared purpose to ensure

            the right of the public to be present at all meetings of
            public bodies, and to witness in full detail all phases of
            the deliberation, policy formulation, and decision
            making of public bodies, is vital to the enhancement
            and proper functioning of the democratic process; [to
            prevent] that secrecy in public affairs [that] undermines
            the faith of the public in government and the public’s
            effectiveness in fulfilling its role in a democratic
            society, and . . . to insure the right of its citizens to have
            adequate advance notice of and the right to attend all
            meetings of public bodies at which any business
            affecting the public is discussed or acted upon in any
            way[.]




                                                                             A-0858-18T2
                                        10
            [N.J.S.A. 10:4-7; see Times of Trenton Publ'g Corp. v.
            Lafayette Yard Cmty. Dev. Corp., 183 N.J. 519, 529
            (2005).]

      It is undisputed that the Board failed to provide prior notice of its January

3 and January 17, 2018 meetings, and that, inexplicably, notice of all its regular

meetings on the annual meeting schedule was mailed only to The Press, not to

the second required newspaper. Both the Board's failure to comply with the

OPMA's requirements regarding its early January meetings and its flawed

attempt to remedy its initial failures cannot be countenanced. As plaintiff

clearly explained to the Board at the January 31 meeting, notice of meetings

must be mailed to two newspapers. The law mandates the Board's actions be

declared void.

      The Board's actions at any non-conforming meeting are voidable by a trial

court presiding at a prerogative writs hearing. N.J.S.A. 10:4-15(a). A board,

however, "may take corrective or remedial action by acting de novo at a public

meeting held in conformity with [the OPMA] . . . regarding any action which

may otherwise be voidable[.]" Ibid. Before her elevation to our Supreme Court,

then Judge Long, recognized:

            Willful violations of the Act require swift and strong
            remediation. However, invalidation of public action is
            an extreme remedy which should be reserved for
            violations of the basic purposes underlying the Act.

                                                                            A-0858-18T2
                                       11
            Polillo v. Deane, 74 N.J. 562 (1977), expressly permits
            discretion in the fashioning of remedies for technical
            violations of the Act which do not result from bad faith
            motives and which do not undermine the fundamental
            purposes of the [OPMA].

            [Liebeskind v. Mayor and Mun. Council of Bayonne,
            265 N.J. Super. 389, 394-95 (App. Div. 1993) (citation
            omitted).]


      In Polillo, much like this case, the public body's meetings, "[a]lthough

. . . publicized in some form by local newspapers," were either not noticed or

improperly noticed. 74 N.J. at 567. The public body conceded "the vast

majority of their meetings technically violated the" OPMA. Id. at 577. The

Court decried the public body's attempt to rectify its OPMA failures by taking

formal votes at two meetings which complied with OPMA because such practice

would undermine the OPMA's purpose, allowing

            an agency to close its doors when conducting
            negotiations or hammering out policies, and then to put
            on an appearance of open government by allowing the
            public to witness the proceedings at which its action is
            formally adopted. Such an interpretation of the statute
            would conflict with N.J.S.A. 10:4-15(a) which provides
            that "a public body may take corrective or remedial
            action by acting de novo at a public meeting held in
            conformity with this act."

            [Id. at 578 (emphasis omitted).]



                                                                       A-0858-18T2
                                      12
      The Court, however, did "not find it necessary, in fashioning a remedial

solution, to invalidate and repudiate all other public meetings, particularly those

hearings at which testimony and evidence were received." Id. at 580. The Court

found the remedial provisions of N.J.S.A. 10:4-15(a) and the court's authority

to "issue such orders and provide such remedies as shall be necessary to insure

compliance with the provisions of the" OPMA, N.J.S.A. 10:4-16,

            contemplate maximum flexibility in rectifying
            governmental action which falls short of the standards
            of openness prescribed for the conduct of official
            business. Consistent with the breadth and elasticity of
            relief provided in the legislative scheme, it is entirely
            proper to consider the nature, quality and effect of the
            noncompliance       of    the    particular    offending
            governmental body in fashioning the corrective
            measures which must be taken to conform with the
            statute.    Thus, in this context, the "substantial
            compliance" argument of defendants carries some
            weight on the question of remedy and relief.

            [Id. at 579.]


      Thus, contrary to the opinion the Board's attorney expressed at the January

31, 2108 meeting, substantial compliance with the OPMA does not, itself, justify

deviations from the notice requirements. It is, as the trial court recognized, but

one of the factors comprising the prism through which we view the Board's

actions.


                                                                            A-0858-18T2
                                       13
      We first note the trial court's cogent finding that "plaintiff is not pursuing

claims against other defendants" whose matters were heard at the contested

hearings; only RTS's matter is in issue. We are also convinced the Board's

violations were technical ones, related to the newspaper-notice requirement of

the OPMA; it complied with the posting and submission requirements of

N.J.S.A. 10:4-8(d)(1) and N.J.S.A. 10:4-8(d)(3). As the trial court observed,

"plaintiff has been able to participate, enter its objections and otherwise have

its interest protected in connection with the matter in which the Board conducted

itself," and has not been excluded from participation in any Board meeting at

which the RTS application was considered. The record before us does not

contain evidence that the substantive issues of RTS's application were acted

upon; we see only that the procedural issues here considered were raised at the

January 31, 2018 meeting. The trial court stated RTS's "application is still

pending before the Board and has not been resolved[.]"           Plaintiff has not

submitted any argument other than the procedural ones.

      The Board's remedial actions appear to have been good-faith attempts to

rectify the mistakes made at the early January meetings. Its readoption of the

meeting schedule and the appointments were de novo actions. Unfortunately,

although notice of the February meeting at which the annual meeting schedule


                                                                             A-0858-18T2
                                       14
was readopted was proper, the Board never mailed the schedule to two

newspapers. The schedule was twice published in The Press, but it was never

sent to The Ocean Star. Hence, any regular meeting on that schedule was never

properly noticed. The remedial action of readopting the Board's appointments

that took place at the August and September meetings, therefore, did not take

place "at a public meeting held in conformity with [the OPMA]," as required by

N.J.S.A. 10:4-15(a). The Board's corrective actions did not satisfy the OPMA's

purposes or cure the notice-defect.

      We fully comprehend not every violation of the OPMA requires reversal

of the body's actions at an inadequately noticed meeting. Polillo, 74 N.J. at 579.

But we cannot approve the Board's initial failure to comply with the OPMA with

regard to its early- January meetings, and its subsequent compliance failures in

attempting to remediate those failures.

      Contrary to plaintiff's argument that RTS's application must be heard

anew, we need not repudiate all of the Board's actions. The Polillo Court

allowed the public body to "utilize so much of the testimony and evidence which

it acquired in the course of its original effort as it deem[ed ] necessary and

appropriate." Id. at 580. As in Polillo,

            any decision in that regard must be arrived at in a
            manner in strict conformity with the [OPMA] so that

                                                                           A-0858-18T2
                                       15
            the public may be fully apprised by adequate notice and
            a publicized agenda exactly what prior meetings and
            what aspects of the existing [Board] record are sought
            to be so utilized.

            [Ibid.]

Again, the record does not reflect that the Board heard testimony relating to

RTS's application, but if there were proceedings undisclosed to us, we do n ot

foreclose the Board from considering those proceedings if it adheres to the

precepts set forth herein.

      We "weigh[] the nature, quality and effect of the noncompliance in this

case against the potential disruption of the orderly process of government, as

well as the rights" of those in attendance at the procedurally-defective meetings.

Aronowitz v. Planning Bd. of Twp. of Lakewood, 257 N.J. Super. 347, 359-60

(Law Div. 1992). In view of plaintiff's presence at all meetings at which RTS's

application was considered, and in that the Board has not reached a final decision

on that application, we follow the Polillo Court's guidance and direct the trial

court to remand this matter to the Board to first conduct further proceedings on

RTS's application at a properly noticed meeting after it remedies its prior notice

failures by conducting de novo proceedings—again, at a properly noticed

meeting—at which it shall readopt its appointments. In our judgment, the annual

meeting notice was readopted de novo at the properly noticed February meeting.

                                                                           A-0858-18T2
                                       16
As such, the Board need only timely mail the annual meeting schedule to two

newspapers in advance of the meetings set forth therein; thereafter, any meeting

set forth in the schedule would comply with the requirements of N.J.S.A. 10:4-

18. Of course, any meeting may alternatively be noticed under N.J.S.A. 10:4-

8(d).

        Such a course will ensure the Board does not skirt the legislative

requirements of the OPMA, and that the Board's previous actions are not entirely

scotched.

        We determine any remaining argument not here considered to be without

sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We briefly comment

that the Board, in addressing the last proviso clause of N.J.S.A. 10:4-15(a),6

reviewed some decisional law but did not advance how the clause applies to

these circumstances. As such, we will not consider plaintiff's undeveloped

argument. Chase Bank USA, N.A. v. Staffenberg, 419 N.J. Super. 386, 413 n.17

(App. Div. 2011).




6
   In pertinent part, the statute provides: "[A]ny action for which advance
published notice of at least [forty-eight] hours is provided as required by law
shall not be voidable solely for failure to conform with any notice required in
this act." N.J.S.A. 10:4-15(a).
                                                                         A-0858-18T2
                                      17
      The trial court's orders granting defendants' motions for summary

judgment and dismissing plaintiff's complaint with prejudice, and denying

plaintiff's cross-motion for summary judgment are reversed, and this matter is

remanded to the trial court for an entry of an order remanding the matter to the

Board for proceedings consistent with this decision.        We do not retain

jurisdiction.




                                                                         A-0858-18T2
                                      18
