Aaron Hirsch v. Lakewood Township Zoning Board of Adjustment

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2466-24 AARON HIRSCH, Plaintiff-Appellant, v. LAKEWOOD TOWNSHIP ZONING BOARD OF ADJUSTMENT, Defendant-Respondent, and CHESTNUT EQUITY, LLC, Defendant. ____________________________ Submitted September 17, 2026 – Decided September 25, 2026 Before Judges DeAlmeida and Augostini. On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2081-24. Aaron Hirsch, self-represented appellant. Dasti McGuckin McNichols Connors Anthony & Buckley, attorneys for respondent (Joseph F. Mackolin, Jr., of counsel and on the brief). PER CURIAM Plaintiff Aaron Hirsch appeals from two Law Division orders in this action in lieu of prerogative writs: (1) a January 17, 2025 order dismissing his complaint without prejudice; and (2) a February 28, 2025 order denying his motion for reconsideration of the January 17, 2025 order. We affirm. I. On April 1, 2024, defendant Chestnut Equity, LLC (Chestnut) presented its application to defendant Lakewood Zoning Board of Adjustment (Board) for a use variance to develop a seventy-four-unit, multifamily residential building in the township's B-5 business zone. Plaintiff opposed the application. The Board adopted a resolution approving the variance on June 17, 2024. On August 8, 2024, plaintiff filed a complaint in lieu of prerogative writs in the Law Division challenging the Board's decision. The complaint was not "accompanied by a certification that all necessary transcripts of local agency proceedings in the cause have been ordered." See R. 4:69-4. A-2466-24 2 On August 26, 2024, the Board's attorney wrote plaintiff stating, "[p]lease confirm that you have ordered the transcript of the hearing," and noting, "[t]hat will be required of you." Plaintiff did not cure the deficiency. On October 9, 2024, the Board's attorney again wrote to plaintiff to remind him of his obligation to order the transcript and file a certification in compliance with Rule 4:69-4. Plaintiff did not cure the deficiency. On December 5, 2024, the Board moved to dismiss the complaint for plaintiff's failure to comply with Rule 4:69-4. In opposition to the motion, plaintiff stated he ordered the necessary transcript. He did not, however, provide the certification required by Rule 4:69-4.1 On January 17, 2025, during oral argument on the Board's motion, plaintiff again stated he ordered the transcript. When asked where in the record the necessary certification appeared, plaintiff could not identify one. The court immediately thereafter issued an oral decision granting the Board's motion. It found: [Plaintiff] has . . . refused to provide a certification or provide some evidence that he has ordered the transcripts, and unfairly . . . required . . . defendant to file a motion and this caused further delay. 1 The Board's motion was also based on plaintiff's failure to effectuate service of the complaint on Chestnut. Plaintiff cured that deficiency prior to the return date of the motion. A-2466-24 3 I will just indicate that under New Jersey law, an appeal of the Zoning Board decision must be accompanied by a transcript of the relevant proceedings in order to allow a meaningful review, as established by . . . Rule 4:69, and in order to facilitate that, the [R]ule requires that a certification that the transcript has been ordered accompany the complaint. . . . That wasn't done here. Moreover, [the Board's attorney] didn't immediately make a motion. He, initially, wrote two letters and said, [he] need[ed] proof that [plaintiff] ordered this transcript, essentially wanting to move this matter along. Because the transcripts were not produced and no certification was produced, in accordance with Rule 4:69-4, I'm satisfied that this is a willful avoidance or failure to comply with the rule. . . . [T]hese types of delays prejudice the parties and prejudice the developer and the town. The court concluded, I'm going to dismiss your complaint without prejudice. That means you can refile it, but what I'm going to require is that any refiling include a certification that the transcript is ordered and, also, include the payment of [the Board]'s reasonable attorney's fees for having to make this motion in order to have you comply with the [R]ule. .... . . . So upon the application, I will order [the Board's attorney] to provide . . . a certification of his reasonable attorney's fees and I will include that as part of my order. A January 17, 2025 order memorialized the court's decision. A-2466-24 4 Plaintiff thereafter moved for reconsideration of the January 17, 2025 order. Although plaintiff stated in his moving papers he ordered the transcript of the Board's hearing, he still had not filed a certification complying with Rule 4:69-4. Plaintiff argued the award of attorney's fees as a condition of reinstatement of the complaint was not warranted because the record did not support the motion court's finding he delayed consideration of his complaint by failing to file the certification. 2 On February 28, 2025, the court issued an oral decision denying plaintiff's motion. The court stated: [A]s I sit here now, I'm still [not] aware of a confirmation certification that [plaintiff] ordered the transcript, as required by the [R]ule . . . . So in this case[,] the approval was granted on June 17th. Here we are, some almost nine months later, and the matter is still dragging on and you can see that when you don't move along quickly in these things . . . 2 Although plaintiff claims he attached a certification complying with Rule 4:69-4 to his motion for reconsideration, the record reflects that neither the court nor the Board's attorney received a certification with plaintiff's moving papers. The appendix plaintiff filed with this court contains a document entitled "Certification Pursuant to R. 4:69-4." That document, dated February 3, 2025, does not contain plaintiff's original signature or a copy of his original signature. R. 1:4-4(c). In addition, the document does not contain the following statement "immediately preced[ing] [plaintiff's] signature: 'I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.'" R. 1:4- 4(b). The document bears no indicia of having been filed in the motion court. A-2466-24 5 they delay. The court . . . took reasonable action. I . . . didn't bar your challenge to this. I just said that just because you're a pro se plaintiff does not authorize me to give you dispensation from having to follow the rules. The [R]ule requires that you certify that a transcript was ordered. You did not do that. [A]fter two letters you still didn't do it. I adjourned the motion and you still didn't do it, and so when we returned for the motion I dismissed it without prejudice and made it as a condition of reinstatement of the complaint . . . that you'd have to pay [the Board]'s attorney's fees for having . . . had to file the motion . . . to try to encourage [you] to comply with the rules and certify that a transcript was ordered. .... So, I'm declining to reconsider my opinion. The court thereafter stated: I'm going to complete the order that [the Board's attorney] provided so that you know what attorney's fees you have to pay before you reinstate this matter. I will review those things based on your objections, your written objections. I will review the request for attorney's fees, they should be reasonable attorney's fees, but I will complete an order that will identify specifically what attorney's fees you have to pay if you intend to reinstate this matter. The court directed the Board's attorney to "[s]ubmit a new order" and stated "[it would] review [the] application for attorney's fees and provide a review, as requested by" plaintiff. A-2466-24 6 On February 28, 2025, the court entered an order denying plaintiff's motion. We have not been provided a copy of an application by the Board for attorney's fees, plaintiff's written response to such an application, or an order awarding attorney's fees to the Board. It appears no such order was entered. On appeal, plaintiff argues the motion court: (1) abused its discretion when it dismissed the complaint for his failure to comply with Rule 4:69-4; (2) violated his right to due process when it awarded attorney's fees not requested in the Board's motion to dismiss the complaint; (3) lacked a legal basis for the award of attorney's fees; and (4) erred when it failed to enter an order awarding the Board a specific amount of attorney's fees, thereby precluding plaintiff from challenging the reasonableness of the fee award. II. An action in lieu of prerogative writs must be filed within forty-five days of the accrual of the right to review the action challenged. R. 4:69-6(a). Rule 4:69-4, which applies to actions in lieu of prerogative writs, provides: "The filing of the complaint shall be accompanied by a certification that all necessary transcripts of local agency proceedings in the cause have been ordered." The Rule also provides all actions in lieu of prerogative writs will be assigned to A-2466-24 7 Track IV, and "to expedite the disposition of the action" the managing judge shall hold a conference within thirty days after joinder. R. 4:69-4. This [R]ule provides for special case management for actions in lieu of prerogative writs for the purpose of expediting final disposition. First, the complaint must be accompanied by a certification asserting that all agency transcripts have been ordered . . . . Second, all actions in lieu of prerogative writs are assigned to Track IV to assure single-judge management throughout, but with the discovery schedule, if any, to be determined by the judge on a case by case basis. . . . . . . Because the 450-day discovery period afforded by R[ule] 4:24-1(a) to Track IV cases is normally inappropriate in in lieu of prerogative writs actions, this provision of the [R]ule leaves the issue to the court for determination on a case by case basis. [Pressler & Verniero, Current N.J. Court Rules, cmt. 5.1 on R. 4:69-4 (2027).] The motion court did not misapply its discretion when it dismissed the complaint for plaintiff's failure to comply with Rule 4:69-4. The rule's purpose is to facilitate prompt resolution of an action in lieu of prerogative writs. Plaintiff frustrated that purpose by failing to file the necessary certification. He did not file the certification when he filed the complaint, in response to two letters from the Board's attorney reminding him of his obligation to do so, or in response to the Board's motion to dismiss, the return date of which was A-2466-24 8 adjourned to give him time to comply with the Rule. On January 17, 2025, when the court heard oral argument on the Board's motion, more than five months had passed since the complaint was filed and plaintiff still had not filed the certification. Plaintiff offered no excuse for having not filed the certification other than his claim to have been unaware of the Rule. As the motion court noted, plaintiff's status as a self-represented party does not excuse his obligation to comply with the court rules. See Mims v. City of Gloucester, 479 N.J. Super. 1 , 4 (App. Div. 2024). In addition, although plaintiff claims he was unaware of Rule 4:69-4 when he filed his complaint, the Board's attorney wrote to him on August 26, 2024, and October 9, 2024, informing him he needed to certify having ordered the transcript. Despite those notices, plaintiff failed to comply with the Rule. On December 5, 2024, the Board filed its motion to dismiss the complaint. At that point, plaintiff was unequivocally apprised his failure to comply with Rule 4:69-4 could result in dismissal of his complaint. Yet, in response to the motion, plaintiff did not file a certification affirming under oath he had ordered the transcript. Plaintiff's claim he believed his obligation to order the transcript would be addressed at a case management conference is unconvincing in light A-2466-24 9 of the Board's motion to dismiss, the return date of which was adjourned to allow plaintiff to file the certification to avoid dismissal of the complaint. Nor do we find a mistaken exercise of discretion by the court when it permitted plaintiff to apply to reinstate the complaint on two conditions. Compliance with the Rule is a reasonable requirement for reinstatement of the complaint. So too is the court's intention to award attorney's fees and costs to the Board as a condition of reinstatement. Plaintiff offered no convincing justification for his failure to comply with Rule 4:69-4, which requires only the filing of a certification. It was reasonable for the court to draw from plaintiff's refusal to comply the inference he either intentionally did not file the certification to delay resolution of his claims or because he had not ordered the transcript. No other explanation for plaintiff's long non-compliance is evident in the record. There was, therefore, a sufficient basis for the court to conclude the Board was, in effect, compelled to expend attorney's fees and costs seeking dismissal of the complaint based on plaintiff's willful non-compliance. The award of attorney's fees and costs as a condition of reinstatement is, therefore, well supported by the record. Nor do we find error in the motion court's denial of plaintiff's motion for reconsideration. Rule 4:49-2 provides: A-2466-24 10 Except as otherwise provided by R[ule] 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or final order shall . . . state with specificity the basis on which it is made, including a statement of the matters or controlling decisions that counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or final order sought to be reconsidered and a copy of the court’s corresponding written opinion, if any. "A motion for reconsideration . . . is a matter left to the trial court's sound discretion." Lee v. Brown, 232 N.J. 114, 126 (2018) (quoting Guido v. Duane Morris, LLP, 202 N.J. 79, 87 (2010)); see also Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). A party may move for reconsideration of a court's decision pursuant to Rule 4:49-2, on the grounds that (1) the court based its decision on "a palpably incorrect or irrational basis," (2) the court either failed to consider or "appreciate the significance of probative, competent evidence," or (3) the moving party is presenting "new or additional information . . . which it could not have provided on the first application." Cummings, 295 N.J. Super. at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401-02 (Ch. Div. 1990)).3 3 The January 17, 2025 order is final, even though it dismissed the complaint without prejudice, because in the absence of an application by plaintiff to reinstate the complaint the order terminated the action. A-2466-24 11 The moving party must "initially demonstrate that the [c]ourt acted in an arbitrary, capricious, or unreasonable manner, before the [c]ourt should engage in the actual reconsideration process." D'Atria, 242 N.J. Super. at 401 . A motion for reconsideration is not an opportunity to "expand the record and reargue a motion. [It] is designed to seek review of an order based on the evidence before the court on the initial motion, . . . not to serve as a veh icle to introduce new evidence in order to cure an inadequacy in the motion record." Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008). When plaintiff filed his motion for reconsideration, he still had not filed a certification complying with Rule 4:69-4. He therefore did not establish the substantive basis of the January 17, 2025 order was palpably incorrect or irrational. Nor did plaintiff establish the court overlooked probative, competent evidence in reaching its decision to dismiss the complaint. We also are not persuaded the court erred by conditioning reinstatement of the complaint, if sought by plaintiff, on an award of reasonable attorney's fees and costs. Plaintiff is correct the Board did not ask for attorney's fees and costs in its motion to dismiss the complaint. He erroneously argues, however, the court granted attorney's fees and costs to the Board in its January 17, 2025 order. A-2466-24 12 It did not do so. To the contrary, the court ordered that in the event plaintiff sought reinstatement of the complaint, it would require as a condition for reinstatement plaintiff pay the reasonable attorney's fees and costs incurred by the Board when it filed its motion to dismiss the complaint. Plaintiff did not seek reinstatement of the complaint, and a condition for him to pay attorney's fees and costs has not been imposed. He instead appealed the January 17, 2025 and February 28, 2025 orders. There is, therefore, no order awarding attorney's fees and costs for us to review. Should plaintiff seek reinstatement of the complaint, the motion court will determine whether, and in what amount, an award of reasonable attorney's fees and costs is warranted as a condition of reinstatement. We decline to issue an advisory opinion on the matter. Likewise, we offer no opinion with respect to whether reinstatement of the complaint more than two years after the Board issued the variance would be barred by laches or other equitable considerations. To the extent we have not specifically addressed any of plaintiff's remaining contentions, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-2466-24 13