NEW JERSEY LAWYER

LOCAL GOVERNMENT LAW BRIEFING     02/28/2006


Land Use

 

CALIBER BUILDERS, INC. v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF PARAMUS, Appellate Division, A-3357-04T2, February 21, 2006, not approved for publication. (12 pages). Facts-on-Call Order No. 19262.

 

Law Division judgment that reversed the defendant Zoning Board’s denial of a use variance to the plaintiff builder and that determined that the Zoning Board did not violate the federal Fair Housing Amendments Act of 1988 reversed in part but affirmed in part; the builder sought to erect a housing complex for independent and semi-independent senior citizens, but about 90 percent of the lot was in a flood plain area; although the complex was an inherently beneficial use, it could be excluded if the negative factors were “weighty” and constituted a “substantial detriment to the public good”; in light of the Zoning Board’s concerns about traffic and flooding, its conclusion — that the detrimental effects of the proposed use “substantially outweighed” the positive effects and could not be mitigated — was not arbitrary or unreasonable; thus, the Zoning Board’s denial of the use variance should have been affirmed; however, the Law Division correctly rejected the builder’s claim under the Act that a municipality must “make reasonable accommodation” for a “congregate care facility” within its borders.

 

KYRIACOU v. LAVIN, Appellate Division, A-1163-04T3 and A-1164-04T3, February 17, 2006, not approved for publication. (16 pages). Facts-on-Call Order No. 19260.

 

Summary judgment for the plaintiff neighbors reversed in an action in lieu of prerogative writs that challenged a variance that the defendant Zoning Board had granted to the defendant property owners; neither of the owners’ lots had the 100 feet of street frontage required for development without a variance; the “very narrow” issue before the trial court was whether the Zoning Board’s engineers gave unsworn testimony in response to questions from the Zoning Board’s members and, if they did, whether the Zoning Board’s decision had to be reversed under N.J.S.A. 40:55D-10d, which provides that the “testimony of all witnesses relating to an application for development shall be taken under oath”; the engineers’ participation at the Zoning Board’s hearings was not testimony, and, even if it was, the trial court erred by reversing the Zoning Board’s decision because the owners were not at fault and because any prejudice to the neighbors was de minimis “at best.”

 

Tort Claims Act

 

McLAUGHLIN v. HOMER, Appellate Division, A-2315-04T2, February 24, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19285.

 

Summary judgment that dismissed the plaintiff’s personal injury action for failure to satisfy the Tort Claims Act verbal threshold reversed and remanded for trial; the plaintiff was a right-handed third-grade student whose right hand was “severely” lacerated when a sink in his school’s bathroom fell to the floor as he attempted to climb on it; as to liability, the trial court correctly determined that the head custodian’s knowledge that the sink was loose before the accident and the expectation that third graders would place their weight on sinks raised a question for the jury; as to the verbal threshold, the plaintiff’s inability to extend the index finger on his right hand and his “significant lack of sensitivity” in that finger, as established by the medical proofs, were sufficient to satisfy the verbal threshold and present an issue for the jury.

 

Public Employees

 

IN RE GIGANTE, Appellate Division, A-3241-04T5, February 23, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19282.

 

Final decision of the Board of Trustees of the Police and Firemen’s Retirement System that rejected the administrative law judge’s initial decision to award accidental disability retirement benefits to the petitioner police officer reversed; while the petitioner and other officers were attempting to apprehend a suspect, the petitioner was knocked down, threw cases of soda out of her way to reach the suspect, and was knocked down again; the ALJ concluded that the incident was unitary in nature and constituted a traumatic event; the Board rejected the ALJ’s finding that the incident was unitary and implicitly concluded that there were two separate components to the incident, the falls and the throwing, both of which required the application of force; the Board “misapprehended” the petitioner’s thesis and erred by rejecting the ALJ’s findings of fact.

 

IN RE POPOLIZIO, Appellate Division, A-5300-03T3, February 21, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19265.

 

Final decision of the Merit System Board that upheld the administrative law judge’s initial decision to approve 30-day disciplinary suspensions for the appellant police officers affirmed; the ALJ determined (1) that the respondent City acted properly by suspending the officers for 30 days, (2) that the officers’ testimony was “substantially contradictory, implausible, inconsistent, contrived and simply not worthy of belief,” and (3) that the officers violated City and State regulations by engaging in conduct to bring discredit, ridicule, and criticism to the police department and firing their weapons at a suspect without justification for using such force, by falsifying an official record or report, by firing shots at an unarmed suspect, and by putting the City’s citizens in harm’s way; there was sufficient credible evidence to support the Board’s decision.

 

IN RE CRANE, Appellate Division, A-413-04T3, February 17, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19258.

 

Final decision of the Merit System Board that granted the respondent employee’s request for permanent status as a Chief Fire Alarm Operator affirmed; the employee was promoted to Chief Fire Alarm Operator on August 22, 1994, but he was unaware that the appointment was reported to the Department of Personnel as provisional pending certification of the eligible list; the eligible list later was deemed incomplete, and the appellant City opted not to make a permanent appointment; in June 2004, the City sought to return the employee to his permanent title of Fire Alarm Operator; the record supported the Board’s determinations (1) that the employee received misleading information about his employment status, (2) that the employee reasonably believed that his position was permanent because he was sworn in at a formal ceremony presided over by the Mayor and the Fire Department Director, and (3) that the misleading information precluded the employee from acting to attain permanent status as a Chief Fire Alarm Operator.

 

Real Property

 

RANDOLPH TOWN CENTER, L.P. v. COUNTY OF MORRIS, New Jersey Supreme Court, A-3, February 27, 2006. (6 pages). Facts-on-Call Order No. 92867.

 

In an action arising from a governmental entity’s alleged prescriptive easement over private property, the portion of the Appellate Division’s decision that decided the inverse condemnation issue was vacated as premature.

 

Municipal Courts

 

STATE v. BUTLER, Appellate Division, A-3744-04T1, February 27, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19292.

 

Conviction following a trial de novo of resisting arrest affirmed substantially for the reasons expressed by the Law Division; two police officers arrived at the home of the defendant’s son to investigate a reported domestic disturbance; the officers later struggled with the son, and the defendant tried to pull her son away from the officers; the defendant was informed that she was under arrest, and one officer sprayed her with mace because he could not control her; after she was arrested and handcuffed, the defendant had to be “forcibly placed” in the police car because she was “yelling, screaming and cursing”; the defendant denied resisting arrest and claimed that the officers attacked her without provocation; the Law Division found that the defendant’s version was “not really credible” and that the defendant had continued to struggle even though she knew that she was under arrest.

 

STATE v. AGOSTO, Appellate Division, A-3416-04T5, February 23, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19278.

 

Conviction following a trial de novo of driving while intoxicated and careless driving affirmed; shortly after midnight, a police officer saw the defendant’s vehicle drift on Route 1, almost sideswipe a vehicle in another lane, enter a service station that was closed, and drive into an adjacent wooded area; the officer observed that there was an odor of alcohol emanating from the defendant’s vehicle, that his speech was “rambling, argumentative, and slurred,” that he failed to respond to directions, that he had difficulty walking and standing, and that he had bloodshot eyes and a flushed face; contrary to the defendant’s arguments on appeal, (1) the observational evidence was sufficient to support his conviction, (2) the Law Division’s factual findings concerning his intoxication were not unsupported, (3) defense counsel’s “apparent oversight” in failing to finish the cross-examination of the officer did not amount to ineffective assistance of counsel, and (4) the defendant was not entitled to a jury trial.

 


News Briefs

MIDDLESEX BAR GROUP OPPOSES JUSTICES’ ALCOTEST ORDER

A lawyers’ group in Middlesex County, the primary battleground for a war over the State’s use of the new breath-test machines, is asking the New Jersey Supreme Court to reverse its decision to allow DWI prosecutions based on test results when the reliability of the machine is under review. The Middlesex County Bar Association passed a resolution stating its opposition to the Supreme Court’s Jan. 10 order allowing people accused of drunken driving to be convicted based on Alcotest evidence and sentenced, although the scientific reliability of the machines is unresolved. The justices appointed retired Appellate Division Judge Michael Patrick King to serve as their special master to gather evidence and conduct hearings on defense attorneys’ challenge to Alcotest results. “We urge the Supreme Court’s reconsideration on this important matter,” said Stephen E. Klausner, president of the Middlesex Bar, in a cover letter to Chief Justice Deborah T. Poritz.

 

LEGISLATOR PROMOTES OPENING GOVERNMENT WIDER

It’s still in its embryonic stage, but a move is percolating in Trenton that would make life miserable for government officials with a penchant for secrecy — from school board members in small burgs to leaders in large cities and even the power elite in the Statehouse. Tired of the amount of government business kept secret from the public, Sen. Robert J. Martin (R-Morris) is pushing sweeping legislation that would shine more intense light into New Jersey’s Sunshine Law for the first time since its enactment more than 30 years ago. He introduced the bill, S-1219, recently and concedes that he’ll face some tough opposition. Read the full story in the Feb. 27 New Jersey Lawyer.

 

COURT RECORDS ACCESS TO BE REVIEWED

The New Jersey Supreme Court has established a committee to recommend updating its Rule governing public access to court records. Chief Justice Deborah T. Poritz assigned Justice Barry T. Albin to chair the 20-member Supreme Court Committee on Public Access to Court Records. “The committee should start with a presumption of openness of court records,” said Poritz. “The goal is to balance the judiciary’s obligations to keep our processes transparent and open to the public with our obligations to safeguard legitimate privacy interests.” Court spokeswoman Winnie Comfort said the review of Rule 1:38 is aimed at ensuring access to information as the judicial branch moves more information online, yet the court is mindful that personal information that could be used in identity theft may be available. She said establishing this committee is a logical next step after the court issued uniform statewide procedures for handling public requests for court records. The uniform procedures were announced in November. “That was strictly procedural. This is more substantive,” she added.

 

GLOUCESTER CLERK’S OFFICE SUED OVER PHOTOCOPY FEES

Despite an Appellate Division decision last year that Burlington and Camden Counties were overcharging for self-service photocopies of public records, the Gloucester County Clerk’s Office has been charging the public 50 cents per page for copies made on its machines. Ernest Bozzi, a developer from Eastampton, has sued the County over it, alleging that the self-service fee exceeds the actual cost and that the County essentially is making an illegal profit. Under the Open Public Records Act, public agencies can charge 75 cents per page for the first 10 pages, 50 cents per page for the next 10, and 25 cents for each additional page. Sander Friedman of Marlton, the lawyer who filed the suit on Bozzi’s behalf, also filed the complaints that resulted in the appeals court opinion that copies should be based on actual costs. As a result, the copying fees in Camden dropped from $1 per page to 19 cents and fell in Burlington from 50 cents to a dime.

 

HOMEOWNER MEASURE ADVANCES
Legislation to provide new protections to residents governed by homeowner associations is advancing in the State legislature, but the American Civil Liberties Union in New Jersey says it may be unconstitutional. Sponsored by Assemblymen Wilfredo Caraballo (D-Essex) and Peter J. Biondi (R-Somerset), A-798 would consolidate the various existing laws that govern different types of common-ownership housing and would subject such owners to the same regulations. The Assembly’s Housing and Local Government Committee unanimously approved the bill and sent it to the full Assembly. But Deborah Jacobs, executive director of the ACLU here, says the bill fails to protect homeowners’ constitutional rights.

 

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