JAMES L. LAMBERT VS. BOROUGH OF BEACH HAVEN AND JOINT LAND USE BOARD OF BOROUGH OF BEACH HAVEN (l-2872-18, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0555-19T4

JAMES L. LAMBERT,
KRIS ANDERSON, SCOTT
CUNNINGHAM, JOHN
HARVEY, ROBERT E. SMITH,
BRENT SAYLOR, EDMUND C.
RICE, ROBERT SALMONS,
DEAN HARKNESS, PATRICK
KELLY, SEAN MONAGHAN,
SEAN T. KELLY,

Plaintiffs-Appellants,

and

JAIME A. BAUMILLER, MICHAEL
MCCAFFREY, JUDITH STUDER
HAMILTON, CLARK MESSEC, JAY
CHAMBLIN, GEORGE J. HALIK,
JASON STEELE, and JOHN PETER
PURCELL,

Plaintiffs,

v.

BOROUGH OF BEACH HAVEN
and JOINT LAND USE BOARD
OF BOROUGH OF BEACH
HAVEN and VICTORIA ROSE
CONDOMINIUMS, LLC,

Defendants-Respondents.
____________________________

Argued telephonically April 27, 2020 –
Decided May 20, 2020

Before Judges Sabatino, Sumners and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-2872-18.

Christopher J. Norman argued the cause for appellants
(Platt & Riso, PC, attorneys; Christopher J. Norman, on
the briefs).

Stuart D. Snyder argued the cause for respondent Joint
Land Use Board of Borough of Beach Haven (Stuart D.
Snyder, attorney; Stuart D. Snyder, on the brief).

Nicholas F. Talvacchia argued the cause for respondent
Victoria Rose Condominiums, LLC (Cooper Levenson
PA, attorneys; Frederic L. Shenkman and Jennifer
Broeck Barr, on the brief).

PER CURIAM

Plaintiffs, residents of the Borough of Beach Haven ("Borough"), appeal

from a September 18, 2019 order granting defendants Joint Land Use Board of

Borough of Beach Haven's ("Board") and Victoria Rose Condominium, LLC's

("Victoria") motion to dismiss their verified complaint in lieu of prerogative

writ. We affirm in part and reverse and remand in part for the current members

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of the Board to deliberate and revote on the substantive reconsideration of

Victoria's application for site plan approval.

I.

In March 2018, the Borough approved a resolution that declared property

located at 510 North Bay Avenue ("Property") as an area in need of

rehabilitation. A May 2018 ordinance established a redevelopment plan for the

Property and the Borough approved modifications to the existing use, bulk,

design, performance, and other standards from those set forth in the Property 's

applicable zoning ordinance. Victoria was designated as the conditional

redeveloper of the Property.

On July 9, 2018, plaintiffs filed a complaint in lieu of prerogative writ

against defendants and the Borough. Plaintiffs alleged that the Board's

resolution was fatally defective, it violated procedural due process, was an

arbitrary, capricious, and unreasonable exercise of zoning power, and was an

improper designation of the Property as one in need of rehabilitation. That

complaint was eventually dismissed in a January 8, 2019 order. 1

1
According to plaintiffs' merits brief, they elected not to appeal this order due
to "limited funds" and instead filed the instant appeal challenging the "granting
of site plan approval and the improper voting process implemented by the . . .
Board at the reconsideration hearing."
A-0555-19T4
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 The Board held two public hearings on August 6 and 27, 2018 regarding

Victoria's application for site plan approval for redevelopment of the Property.

At those hearings, Victoria argued that its application for development was for

a "by right," fully conforming site plan. At the conclusion of the August 27,

2018 hearing, however, the Board's motion to grant site plan approval resulted

in a 4-4-1 tie vote, and the application was denied. Two Board members who

voted in the negative made comments regarding their votes. Daniel Allen

admitted that the application "meet[s] all the requirements," but nevertheless

voted against the application based on traffic and structural concerns. Similarly,

Ken Muha stated that he "realize[d] that [the application] meets all of the criteria

of the redevelopment [plan]," but that he had "some real issues."

The sole abstention vote was made by Nancy Davis, the mayor of the

Borough, who explained that she was "still . . . in favor of th[e] project" and "it

would be good for Beach Haven." Davis further noted that she believed the

project: 1) "has the potential to transform a blighted property in the heart of

Beach Haven's business district"; 2) would aid in "removing a building that has

been left vacant and neglected for close to [fifteen] years"; 3) would help the

Borough maintain its post office; and 4) would provide "much-needed low-

income housing units." She chose to abstain, however, despite her feeling that

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the project "has a lot of merit," because of the animosity it created in the

community.

Before the Board issued a written resolution memorializing its denial of

Victoria's application, Victoria submitted a September 13, 2018 letter requesting

that the Board reconsider that decision. In support of its request, Victoria cited

Sartoga v. Borough of W. Paterson, 346 N.J. Super. 569, 580 (App. Div. 2001),

for the proposition that "[a] planning board's review of a site plan is ministerial

in nature," meaning that the Board was "limited to determining to whether the

plan conforms with the municipality's zoning and site plan ordinances." Victoria

argued that "the only issue before the Board" at the August 6, 2018 and August

27, 2018 hearings "was whether the site plan conformed to the [r]edevelopment

[p]lan and other applicable site plan standards," and that "some members of the

Board mistakenly considered whether the [r]edevelopment [p]lan itself was

appropriate."

Victoria's reconsideration request was heard at an October 22, 2018 public

hearing after Donald Kakstis, who originally voted to approve the application,

introduced the motion. At the hearing, Stuart Snyder, the Board's attorney,

instructed the Board that "before we finalized [the resolution indicating that

Victoria's application did not pass]" the Board members who voted against the

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application would be permitted to "articulate their reasons and understand they

[were] limited to dealing with the site plan," and not zoning issues.

Snyder further noted that with respect to the procedural motion for

reconsideration, Donald Wyncoop, an alternate Board member, would be

allowed to vote in the place of Joseph Pisano, a board member who originally

voted in favor of approving Victoria's application for site plan approval at the

August 27, 2018 meeting but was not in attendance at the October 22, 2018

meeting. Counsel for plaintiffs did not object to permitting Wyncoop to vote in

place of Pisano on the procedural application and the Board passed the motion

to permit reconsideration by a 5-4 vote.

Snyder also advised that the substantive vote on whether to grant

Victoria's application would be "limited to the five members who spoke against

it[, including] the [m]ayor." During the rehearing, Snyder asked the four

members who originally voted against Victoria's application to "give a reason

for [their] no vote, based upon the testimony that was before the Board under

our site plan ordinance" to determine whether their votes were limited to

consideration of the site plan and not zoning issues. Those four members

detailed their reasons for originally casting no votes and did not change their

votes on reconsideration.

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 Mayor Davis, however, who abstained during the August 27, 2018 vote,

voted in favor of granting site plan approval on reconsideration. She stated that

she originally abstained because she "felt that this issue was dividing the town"

and not "because [she] thought the project was a bad project." More specifically,

Mayor Davis noted that the project "offers benefits to the town" and she was "in

favor of the project," but her abstention "dealt with the friction that was going

on within the town . . . [and she] abstained inappropriately." Snyder concluded

that with the mayor's affirmative vote, it was now 5-4 in favor of granting site

plan approval to Victoria. After the reconsideration hearing, the Board

memorialized their vote granting preliminary and final site plan approval to

Victoria in a November 5, 2018 resolution.

On November 29, 2018, plaintiffs filed a second verified complaint in lieu

of prerogative writ in the Law Division asserting: 1) the Board should be

compelled to memorialize in a resolution the original August 27, 2018 vote

denying Victoria's application; 2) the procedural reconsideration vote violated

Robert's Rules and was the result of arbitrary and capricious ad hoc procedural

rules; 3) the substantive reconsideration vote was improper as four of eight

members present voted to deny reconsideration on the merits, and a member

who originally abstained subsequently voted to approve the application; 4)

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preliminary and final site plan approval was invalid because the required

variances were not granted, as well as unsafe and inefficient internal traffic

circulation and ingress/egress from the parking garage to the street.

The Law Division entered final judgment in favor of defendants and

dismissed plaintiffs' complaint with prejudice in a September 18, 2019 order. In

its accompanying written opinion, the court noted that with respect to the

Board's procedural vote to reconsider, "it was within the discretion of the Board,

on its own motion, and before their vote was memorialized in a formal

resolution, to exercise its discretion to have another vote on the application. "

The court further elaborated that it was "within the quasi-judicial discretion of

the Board, and unless tainted by fraud, mistake or other illicit motive, is a valid

exercise of the Board's discretion."

The court also noted that it was "not persuaded there has been a violation

of . . . Robert[']s Rules, even assuming they are applicable to the actions of the

Board" because "[t]here was no 'winning side' [as a result of the original tie vote]

and therefore any voting member, given the abstention, could have called for

reconsideration." It also determined that it could not "conclude that the action

. . . of the Board in granting reconsideration and a new vote on the merits of the

application constituted a 'change in rules' or 'ad hoc rulemaking' that was

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criticized and rightfully rejected in [Amato v. Randolph Twp. Planning Bd., 188

N.J. Super. 439 (App. Div. 1982)]." The court emphasized that "once the notice

for reconsideration was filed within [forty-five] days of the vote, and no

resolution was yet adopted, the Board could avoid, through reconsideration, a

result that did not reflect its true intent."

The court also determined that counsel fees were not warranted despite

plaintiffs' argument that they acted as a catalyst to compel adoption of the

resolution. The court reasoned that a Board's actions are "not concluded until it

adopts a written [r]esolution that memorialized its final decision" and that

"[a]lthough . . . there is a statutory obligation to adopt a [r]esolution, the Board

as an alternative could have reconsidered its vote, and then adopted a

[r]esolution which reflected its actual decision and vote, thus memorializing its

final decision." Stated differently, the court concluded that since the motion

was filed within forty-five days of the date of the original vote, "the final hearing

is viewed as a continuation of the hearing, and therefore there was nothing to

reduce to writing until the board heard and acted on the motion for

reconsideration."

Finally, the court declined to address whether the members who originally

voted to reject Victoria's application considered issues outside of the limited

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scope required for site plan approval. It noted that it need not speculate as to

those members' motives as it "finds the plan was consistent with the

redevelopment ordinance and ultimately properly approved by the Board." This

appeal followed. During the oral argument on the appeal, counsel informed us

that the construction of the project is nearly completed. Nonetheless, the issues

before us are not moot. Plaintiffs limit their arguments to the following

contentions:

POINT I

THE TRIAL COURT'S JUDGMENT AFFIRMING
THE RESOLUTION OF SITE PLAN APPROVAL
MUST BE REVERSED AND THE LAND USE
BOARD MUST BE ORDERED ON REMAND TO
RENDER FINDINGS OF FACTS AND
CONCLUSIONS OF LAW IN A RESOLUTION OF
DENIAL OF PRELIMINARY AND FINAL SITE
PLAN APPROVAL, PURSUANT TO N.J.S.A.
40:55D-10(g).

A. Reconsideration Was Not Warranted In The
Absence of Fraud, Mistake or Substantial Change In
The Prior Proceedings.

B. The Procedural Reconsideration Vote Was Fatally
Tainted By Councilman Kakstis Introducing the
Motion For Reconsideration, Which Violated
Robert's Rules and the [Municipal Land Use Law
(MLUL)].

C. Reconsideration Was Tainted by the Land Use
Board's Arbitrary And Capricious Manipulation Of

A-0555-19T4
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 The Voting Process Through "Ad Hoc" Procedural
Rulemaking.

D. With Only Eight . . . Eligible Members Present For
The Substantive Reconsideration Vote, The Best
Hypothetical Outcome For Victoria Rose and The
Land Use Board Minority Was A 4-4 Vote,
Resulting In A Denial On Substantive
Reconsideration.

E. Assuming For Sake Of Argument That Only The
Majority In The Original Decision Were Permitted
To Vote On Substantive Reconsideration, Board
Member Mayor Davis Should Have Been Precluded
Under Robert['s] Rules From Casting The Deciding
Vote By Virtue Of Her Abstention In The Original
Decision.

POINT II

ON REMAND, THE APPELLATE PANEL MUST
AFFORD THE FOUR MEMBERS IN THE
MAJORITY OF THE ORIGINAL DECISION THE
OPPORTUNITY TO COLLECTIVELY AND
INDEPENDENTLY APPOINT LEGAL COUNSEL OF
THEIR CHOICE TO PREPARE THE RESOLUTION
OF DENIAL.

POINT III

PLAINTIFFS MUST BE AWARDED COUNSEL
FEES IN THIS LITIGATION, PURSUANT TO
N.J.S.A. 40:55D-10(g)(2), AS THE CATALYST FOR
COMPELLING A JUDGMENT TO ADOPT A
RESOLUTION OF DENIAL.

A-0555-19T4
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 II.

A municipal agency decision "is subject to review in the Law Division in

an action in lieu of prerogative writs[,] . . . and the Law Division's review of the

. . . decision must be based solely on the agency record." Willoughby v.

Planning Bd. of Twp. of Deptford, 306 N.J. Super. 266, 273 (App. Div. 1997)

(internal citation omitted) (citing R. 4:69). "The Law Division reviews the

record to determine whether the . . . factual findings are based on 'substantial

evidence' and whether its discretionary decisions are 'arbitrary, capricious and

unreasonable.'" Id. at 273-74 (citation omitted).

"When we consider an appeal of a trial court's review of a municipal

board's action, we are bound by the same standard as the trial court. We give

deference to a municipal board's decision, and such decisions should be

overturned only when proven arbitrary, capricious or unreasonable." Cohen v.

Bd. of Adjustment of Borough of Rumson, 396 N.J. Super. 608, 614-15 (App.

Div. 2007) (internal citation omitted). "[M]unicipal action is not arbitrary and

capricious if exercised honestly and upon due consideration, even if an

erroneous conclusion is reached." Bryant v. City of Atl. City, 309 N.J. Super.

596, 610 (App. Div. 1998). However, "[a] determination predicated on

unsupported findings is the essence of arbitrary and capricious action." Ibid.

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 III.

In point I.A, plaintiffs maintain that the August 27, 2018 vote and decision

"should have been treated as 'final' as a matter of law . . . [but that] the [Board

members who originally voted to approve Victoria's application] manipulated

the procedural rules to reverse the outcome." We disagree.

With respect to site plan approval, N.J.S.A. 40:55D-46(a) provides that

"[a]n ordinance requiring site plan review and approval shall require that the

developer submit to the administrative officer a site plan and such other

information as is reasonably necessary to make an informed decision as to

whether the requirements necessary for preliminary site plan approval have been

met." Then, pursuant to N.J.S.A. 40:55D-46(b), "[t]he planning board shall, if

the proposed development complies with the ordinance and this act, grant

preliminary site plan approval." See also Sartoga, 346 N.J. Super. at 582-83 ("A

planning board has no authority to deny site plan approval based on its view that

a use permitted under the zoning ordinance . . . is inconsistent with principles of

sound zoning.")

N.J.S.A. 40:55D-49(a) "expressly authorizes planning boards to impose

general terms, conditions, and requirements peculiar to site plan approval as

related to public health and safety." W.L. Goodfellows & Co. of Turnersville,

A-0555-19T4
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Inc. v. Washington Twp. Planning Bd., 345 N.J. Super. 109, 116 (App. Div.

2001) (holding that a stormwater management plan should be approved,

conditioned on the acquisition of a drainage easement that comported with a

drainage plan reviewed and accepted by Board professionals). However, as

noted, this discretion is limited and "a planning board's role is somewhat

'circumscribed' in considering a site plan application," ibid. (citing Shim v.

Washington Twp. Planning Bd., 298 N.J. Super. 395, 411 (App. Div. 1997)), to

that of assuring "compliance with the standards under the municipality's site

plan and land use ordinance." Ibid.

With respect to a Board's ability to reconsider its decisions, an "agency's

authority encompasses all express and implied powers necessary to fulfill the

legislative scheme that the agency has been entrusted to administer." In re

Application of Virtua-W. Jersey Hosp. Voorhees for Certificate of Need, 194

N.J. 413, 422-23 (2008). Although the exercise of an agency's authority through

"inherent or implied power is not boundless," N.J. Dep't of Labor v. Pepsi-Cola

Co., 170 N.J. 59, 61 (2001), our courts have long recognized that an

administrative agency has inherent power to reconsider, reopen and rehear prior

decisions in the absence of any legislative restriction to the contrary. See, e.g.,

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In re Kallen, 92 N.J. 14, 24 (1983); In re Parole Application of Trantino, 89 N.J.

347, 364 (1982); Handlon v. Town of Belleville, 4 N.J. 99, 106-07 (1950).

The general principles governing agency reconsideration do not confine

exercise of an agency's inherent power to a narrow set of circumstances

involving fraud or a material change of fact or law. Rather, "[t]he only

limitations are the considerations of reasonableness, fairness and good cause."

In re 1982 Final Reconciliation Adjustment for Jersey Shore Med. Ctr., 209 N.J.

Super. 79, 92 (App. Div. 1986) (citations omitted); see also Duvin v. State, Dep't

of Treasury, Public Emps.' Ret. Sys., 76 N.J. 203, 207 (1978) (recognizing an

agency's power "to reopen or to modify and to rehear orders previously entered

by it . . . should be invoked only for good cause shown[, and] . . . must be

exercised reasonably, and . . . with reasonable diligence"). "Good cause may be

established by showing that reopening proceedings would 'serve the ends of

essential justice and the policy of the law.'" In re Van Orden, 383 N.J. Super.

410, 421 (App. Div. 2006) (quoting Handlon, 4 N.J. at 107).

In discussing limitations on administrative reconsideration, the Court in

Ruvoldt v. Nolan, 63 N.J. 171, 183-85 (1973), held that one of the factors to be

considered was the timing of the review, as this impacts the extent of reliance

by affected individuals and the equities of the case. "The limitation of

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reasonable diligence in reopening prior administrative determinations has been

recognized in cases decided since Handlon." Skulski v. Nolan, 68 N.J. 179, 195

(1975). The Court explained that "equitable considerations are relevant in

evaluating the propriety of conduct taken after substantial reliance by those

whose interests are affected by subsequent actions." Id. at 198.

Here, Victoria requested reconsideration on September 13, 2018,

seventeen days after the original vote and well within the forty-five-day time

period for the Board to memorialize its final decision in a resolution. In its letter

to the Board, Victoria emphasized that the Borough had already adopted a

redevelopment plan modifying the standards currently set forth in the Property's

applicable zoning ordinance and that the site plan it set forth during the August

27, 2018 hearing was in conformance with that redevelopment plan. Indeed, the

comments by Board members Allen and Muha during the August 27, 2018

hearing indicated that they believed, at least in part, that the application satisfied

the requirements of the redevelopment plan but still voted to deny Victoria's

application.

We agree with the trial court's factual and legal conclusions and similarly

conclude there was substantial evidence in the record that the Borough's already

adopted redevelopment plan "made discrete adjustments to the land use and

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building requirements in this area [and] superseded other land use requirements

and bulk provisions as applicable throughout the Borough" and Victoria's

proposed site plan was consistent with the redevelopment ordinance. Thus, the

Board had good cause to reopen proceedings in order to "serve the ends of

essential justice and the policy of the law" by determining the basis for those

who denied Victoria's application. See Van Orden, 383 N.J. Super. at 421

(quoting Handlon, 4 N.J. at 107).

IV.

Plaintiffs next contends in point I.B that the procedural reconsideration

vote was improper as the motion allowing the vote was introduced by Kakstis

and, pursuant to Robert's Rules, "only the four . . . members who voted against

site plan approval in the [o]riginal [d]ecision could introduce a procedural

motion for reconsideration." Plaintiffs further contend that Kakstis's actions

were contrary to the statutory voting scheme of the MLUL as that statute "does

not authorize a third category of 'tie vote-no winner' outcome to liberally permit

a revote on reconsideration," and like Robert's Rules, it "contemplates that the

minority members' involvement on a development application ends after a

substantive vote is taken." Again, we disagree.

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 In support of its argument, plaintiffs rely on a provision of the Borough

of Beach Haven, Code § 2-2(F)(2) which states that "[t]he Borough Council

shall provide by resolution rules of procedure not inconsistent with law or this

Code" and that "[p]roceedings at all meetings shall be conducted in accordance

with Robert[']s Rules of Order, Revised, except where the Borough Council

provides otherwise by resolution." Although the Borough Council elected to

follow those procedural guidelines, the Board was authorized to adopt its own

rules and regulations to govern its procedures. See Borough of Beach Haven,

Code § 19-5(A) (The Board "is authorized to adopt bylaws, rules and regulations

governing its procedural operations which shall be consistent with [the MLUL],

ordinances of the Borough, and other applicable law.") The Board was therefore

not obligated to follow the reconsideration procedures set forth in Robert's

Rules. Snyder confirmed, and plaintiffs do not dispute, that the Board never

formally adopted a specific set of procedural rules and regulations for

conducting its hearings.

Instead, the Board was entitled to adopt more general principles

permitting reconsideration to reopen and rehear prior decisions in the absence

of contrary legislative restrictions. See Handlon, 4 N.J. at 106-07. And, these

general principles, unlike those enumerated in Robert's Rules, do not limit the

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introduction of motions to reconsider to Board members who were on the

"winning side" of the original vote. Thus, it was not improper for Kakstis to

make such a motion as the Board was not bound by Robert's Rules and, in light

of the admissions by Allen and Muha that the application met the criteria for

redevelopment, there was a justifiable reason to warrant reconsideration as at

least two voting members of the Board clearly considered issues outside the

scope of what was permitted when they voted against Victoria's application.

V.

Plaintiffs argue in point I.C that the Board allowed nine members to vote

on whether to allow reconsideration, but improperly limited the substantive

reconsideration vote to the five members who either originally abstained or

denied the application. They further contend in point I.D that because Pisano,

who originally voted to approve Victoria's application, was not present at the

October 22, 2018 reconsideration hearing, only eight Board members were

eligible to participate in the substantive reconsideration vote and the best

possible result would have been a 4-4 tie denying Victoria's application. We

agree that it was improper for the Board to approve the application without

having all members of the Board explicitly state their votes at the

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reconsideration hearing, and it should not have considered a prior vote from a

member who was absent during the substantive reconsideration.

Even though the Board was permitted to adopt its own rules regarding

reconsideration procedures, those rules must not be "inconsistent with [the

MLUL]." See N.J.S.A. 40:55D-8(a). The MLUL requires that all actions of the

Board must be taken by "a majority vote of the members of the municipal agency

present at the meeting," except under certain circumstances. N.J.S.A. 40:55D-

9(a); see also Cox and Koenig, N.J. Zoning & Land Use Administration, § 20-3

(2020). Consequently, the Board erred when it failed to obtain sufficient votes

in favor of Victoria's application at the reconsideration hearing, as only the

mayor voted "yes", and four members voted "no." The Board similarly erred

when it presumed that Board member Pisano would again vote to approve

Victoria's application despite his absence at the reconsideration hearing. For the

procedure to be consistent with the MLUL, all Board members present should

have voted, and the Board should not have considered the prior vote by an absent

Board member.

We conclude, however, that the Board's actions do not warrant the remedy

requested by plaintiffs. We addressed a somewhat similar circumstance in

Schmidhausler v. Planning Bd. of Borough of Lake Como, 408 N.J. Super. 1,

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12-13 (App. Div. 2009). In that case, a board member was ineligible to vote

because he failed to comply with the MLUL provision that members who are

absent from a meeting at which a hearing was held must certify that they read

the transcript or listened to the recording of the meeting he or she missed before

they are eligible to vote. See N.J.S.A. 40:55D-10.2. The Schmidhausler court

concluded:

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.

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

While we acknowledge the situation here is different in that most of the

Board members were present at the previous meetings but failed to vote during

the substantive reconsideration vote, whether due to absence or the belief that

they were not permitted to vote or did not have to reassert their prior votes, the

failure to explicitly obtain a majority vote of those present at the meeting was

nevertheless a similar procedural flaw. We see no principled reason to not apply

the same remedy discussed in Schmidhausler here, as there was no indication at

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the reconsideration hearing, before the trial court, or now on appeal, that any

original "yes" votes, including Pisano's, sought to, or did, change their position.

Their affirmative votes, however, should have been memorialized at a meeting

in which they attended.

VI.

Plaintiffs argue in point I.E that Davis should have been precluded from

changing her abstention to an affirmative vote at the October 22, 2018

substantive reconsideration. In support of their argument, plaintiffs again rely

on Robert's Rules for the proposition that "[a]bstentions . . . are not counted and

have no effect on the result" of a vote, and that since Davis was not a part of the

votes to deny the application at the August 27, 2018 vote, the Board should not

have permitted her to vote on substantive reconsideration.

As we have concluded, Robert's Rules did not apply by default to Board

hearings. In any event, the Board members that were given the opportunity to

be heard on reconsideration were limited to those who originally voted against

the application and Mayor Davis. The motion to reconsider was primarily to

determine whether any of those members denied the application or abstained

from voting altogether based on issues outside of the scope of the proceeding.

Thus, Mayor Davis, like any of the Board members who voted to deny t he

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application, could then understand the scope of the August 27, 2018 hearing and

change her vote accordingly. This procedure was appropriate as the Board had

"good cause" to reconsider its decision, and it was not unreasonable or unfair to

allow Board members to reevaluate their votes. See Jersey Shore Med. Ctr., 209

N.J. Super. at 92.

VII.

Finally, because we find that the Board's procedural reconsideration vote

was appropriate, we need not address the merits of plaintiffs' argument in points

II and III that they be provided the opportunity to acquire independent counsel

in order to prepare a resolution of denial, and that they are entitled to attorney 's

fees pursuant to N.J.S.A. 40:55D-10(g)(2). We, however, make the following

brief remarks.

Even if, on remand, the Board denies Victoria's site plan application,

allowing the option to assign independent counsel to the Board members who

originally voted to deny Victoria's site plan application is not warranted for two

reasons. First, plaintiffs present no legal authority and we can find no support

in the Rules or the MLUL to warrant the option of appointing independent

counsel under these circumstances. Second, it is mere speculation that Snyder

intentionally "advanced the policy agenda" of the members who originally voted

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to grant the application and there is insufficient evidence in the record to

conclude that he acted in bad faith. As discussed, other than failing to solicit

votes from all Board members present during the substantive reconsideration

vote, Snyder's legal guidance with respect to the procedural reconsideration vote

was not inconsistent with general principles regarding agency reconsideration,

the MLUL, or local ordinances.

With respect to plaintiffs' argument that they are entitled to attorney's fees,

N.J.S.A. 40:55D-10(g)(2) states, in pertinent part:

If the municipal agency fails to adopt a resolution as
hereinabove specified, any interested party may apply
to the Superior Court in a summary manner for an order
compelling the municipal agency to reduce its findings
and conclusions to writing within a stated time, and the
cost of the application, including attorney's fees, shall
be assessed against the municipality.

As the trial court correctly stated in its written decision, a Board action

"is not concluded until it adopts a written [r]esolution that memorialize[s] its

final decision." While the forty-five-day window for the Board to memorialize

its original August 27, 2018 decision denying Victoria's application remained

open, the Board was permitted to reconsider whether to grant that application.

The Board then memorialized its revote in a written resolution. Accordingly,

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the Board did not "fail[] to adopt a resolution" in violation of N.J.S.A. 40:55D-

10(g)(2) and plaintiffs are not entitled to attorney's fees.

VIII.

In sum, while irregular, we are satisfied that the reconsideration

procedures employed by the Board were on notice and the decision was

principled and consistent with the applicable local ordinances. Although it may

be better practice for land use boards to adopt formal rules of procedure for such

applications, we conclude it would be inequitable to invalidate the Board's

decision to permit reconsideration of the initial vote here absent a showing of

harm. See Cox and Koenig, N.J. Zoning & Land Use Administration, § 3-7.1

(2020) (citing Yahnel v. Bd. of Adjust. of Jamesburg, 76 N.J. Super. 546, 550

(Law Div. 1962) aff'd 79 N.J. Super. 509 (App. Div.), certif. den. 41 N.J. 116

(1963)). No such harm is demonstrated here. Thus, we affirm that portion of

the trial court's September 18, 2019 order with respect to the procedural vote

allowing the Board to reconsider its original denial of Victoria's application.

We, however, reverse the trial court's September 18, 2019 order to the

extent it approved the procedure surrounding the substantive reconsideration

vote and remand the matter to the Board for further proceedings. On remand,

current Board members should "deliberate and revote, with those who have not

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done so, reading the transcript or listening to the tape of any meeting or meetings

they may have missed, providing their certification, and then deliberating and

voting on the application as well." Schmidhausler, 408 N.J. Super. at 14. Our

decision does not bind any Board members to repeat the vote they cast before,

nor do we intimate any views on the substantive propriety of the outcome.

To the extent we have not addressed any of the parties' arguments it is

because we have concluded they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-(e)(1)(E).

Affirmed in part, reversed in part, and remanded. We do not retain

jurisdiction.

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