SUDLER ARGUES THAT LAKE TERRACE HAS NO RIGHT TO DEMAND THEIR LEGAL FEES FROM THEM

The legal war between Lake Terrace and their industrial park neighbors has gotten cranked up a notch - Lake Terrace filed a demand seeking their legal fees for fighting Sudler's last litigation, and Sudler responded by filing a Notice of Appeal to the Appellate Division.

Additionally, Sudler has now filed opposition to the motion for legal fees.

The litigation involved Zoning Board Chairman Abe Halberstam's opening statement at the Board's public hearing on Lake Terrace's Use Variance application.

As previously reported here on FAA News, back in June, 1650 Oak Street LLC, represented by Attorney Rob Shea Esq. filed a lawsuit alleging that all of the Zoning Board's meetings this year (including an initial hearing on Lake Terrace's Use Variance appeal) failed to comply with the New Jersey Open Public Meetings Act (OPMA) and therefore all actions taken at their meetings should be null and void.

The first two counts alleged that the Board's Annual Notices from 2022 and 2023 failed to comply with the "adequate notice" as required by OPMA, and the Board is not permitted to meet to conduct official business until adequate notice has been provided to the public.

Accordingly, all decisions, determinations, testimony, submitted exhibits, and all actions taken during the January 9, February 6, and May 1, 2023 hearings are null and void. 

Furthermore, the Board has no power to hear applications, and can hear no further testimony with respect to Lake Terrace's Use Variance appeal until such time as it complies with the Open Public Meetings Act.

The third count of the lawsuit alleges that the Board Chairman failed to recite the Statutory language required by the OPMA.

Chairman Abe Halberstam always stated the following opening statement:

Good evening Ladies and Gentlemen. I'd like to call tonight's meeting to order. Tonight's meeting has been advertised in accordance with the New Jersey Sunshine Law. Madam Secretary roll call please?"

---

The New Jersey Open Public Meetings Act (10:4-10) stipulates:

At the commencement of every meeting of a public body the person presiding shall announce publicly, and shall cause to be entered in the minutes of the meeting, an accurate statement to the effect:

a. that adequate notice of the meeting has been provided, specifying the time, place, and manner in which such notice was provided...

The lawsuit asserted that the Board's May 1, 2023 public hearing should be null and void due to Chairman Halberstam's failure to recite the Statutory language required by the OPMA.

Subsequently, as previously reported here on FAA News, Mr. Shea filed a motion to amend the complaint to include fourth and fifty counts that due to the Board's continued failure to reorganize properly, the Board's subsequent meetings were also held in violation of statutory requirements and all actions taken at the meeting must be voided.

As previously reported here on FAA News, at oral arguments held last month, Judge Hodgson dismissed without prejudice the first and second counts of the original complaint, finding that, a) the allegations are untimely as it is well past the 45 day time limit for such complaints, and; b) there is no allegation that there is any underlying fraud to benefit Lake Terrace.

Judge Hodgson also dismissed without prejudice the motion to amend the complaint, saying that the new complaints regarding the subsequent Zoning Board meetings are really just built on the old reorganization meeting, and the complaints as to those meetings are untimely. Additionally, "these things are minor, unintended, and not designed to stop anyone from coming to the meeting and objecting to the applications."

However, the third count of the complaint disturbed Judge Hodgson, and he said that this issue can be brought back in subsequent actions.

Lake Terrace is now fighting back with a motion demand for Sudler to pay their legal fees for fighting this litigation.

Mr. Fiorovanti wrote:

 

Over the past several years, Plaintiff has attempted to use this Court as a weapon in a campaign of predatory litigation against its neighbor, defendant KBS Mt. Prospect, LLC (“KBS”), in order to pressure KBS into the sale of its property. 

Plaintiff’s filing of this latest case, the frivolous joinder of KBS to a meritless suit against the municipality, was manifestly devoid of merit from the outset. Plaintiff’s filings, once again, had as their motive not the case’s legal success, but instead their costly impact on KBS. Plaintiff’s lawsuit is a stark example of litigation for an improper purpose. 

Plaintiff’s multiple lawsuits against KBS - four in as many years - are an affront to the entire controversy doctrine and are textbook, abusive litigation intended to raise costs, create barriers to KBS’ ongoing business and ultimately eliminate their target. Plaintiff’s principles own all the property surrounding KBS, and made clear their intention to raze the wedding hall and pressure KBS into a sale of its property. Plaintiff has consistently demonstrated a blatant disregard for litigation’s proper uses in reaching these selfish ends, and its multitude of costly filings, if not actionable for abuse of process, at this point clearly warrant the imposition of sanctions by this Court.

Precedent provides that the joinder of KBS in this case was frivolous and sanctionable in and of itself. Moreover, N.J.S.A. 2A:15–59.1 and R. 1:4–8 were both specifically drafted to have a deterrent impact on repetitious and harassing use of the courts for ulterior motives, such as Plaintiff’s bad faith pressure campaign here against KBS. 

KBS perfected its rights under the frivolous claims statute and R. 1:4–8 by correspondence to Plaintiff’s litigation counsel. Plaintiff did not withdraw any of the claims, despite their manifest lack of merit, but instead sought to amend its pleading to add additional frivolous claims. The imposition of sanctions against Plaintiff and its attorney here are warranted not only as a deterrent to this never-ending, predatory campaign against KBS, but also to compensate KBS for having to defend such frivolous litigation.

Plaintiff’s complaint was also specifically frivolous within the meaning of R. 1:4-8 as it was filed solely to unnecessarily delay the outcome of KBS’s pending use variance application and needlessly increase the costs of this global dispute. At its February 6th meeting, the Board adopted its annual meetings calendar, appointed its professionals, elected its chairman and vice chairman and reorganized. Plaintiff sought to challenge the Board’s actions in this regard but did not file its complaint until June 8, 2023 - well beyond the 45-day deadline to file any challenge to the Board’s actions. Plaintiff was placed on notice of the untimeliness of its complaint, but despite recognizing the applicability of the 45-day limitations period set forth in the Open Public Meetings Act (“OPMA”), N.J.S.A. 10:4-15, Plaintiff refused to withdraw its complaint. 

The reason why Plaintiff refused to withdraw its untimely complaint is clear and obvious: 

Plaintiff wishes to wage as many battles as possible in its never-ending war with KBS - regardless of whether those battles can legally succeed. Plaintiff’s strategy from the inception of its scorched-earth campaign has been to over-litigate every single issue, to make it is as long and difficult as possible for KBS to secure the necessary land use approvals to confirm the manner in which KBS has been using the Property for more than a decade. Plaintiff’s litigation strategy of throwing “everything but the kitchen sink” at the Court to stop KBS at all costs is inherently frivolous and sanctionable - particularly in this case, where Plaintiff acknowledged the applicability of the 45-day limitations period but refused to withdraw its untimely complaint. 

KBS complied with the notice requirements of R. 1:4-8 by writing to Plaintiff and explaining, in detail, why Plaintiff’s complaint was untimely and demanding that such frivolous complaint be withdrawn. Plaintiff was not deterred, and persisted in its scorched earth litigation tactics. Ultimately, the Court correctly found that Plaintiff’s claims were untimely and dismissed them accordingly. Now that Plaintiff’s baseless claims have been dismissed, the Court should sanction Plaintiff under the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1, and Plaintiff’s counsel under R. 1:4-8, for pursuing such patently frivolous claims. Unless sanctions are imposed, Plaintiff will be undeterred in engaging in the same type of scorched-earth litigation against KBS, as they have done on at multiple occasions since November 2020. KBS should not be forced to incur substantial expenses, year after year, in defending against such legally baseless claims, filed with the sole intention to hinder KBS’s lawful right to seek and obtain the requested land use approvals. 

In these circumstances, it should be self-evident that Plaintiff and litigation counsel filed suit for an improper purpose and that an order should be entered directing them to reimburse KBS for attorney fees and costs incurred in defending their frivolous claims.

Mr. Shea has now filed opposition to this motion, writing in part:

This motion is clearly filed in bad faith and contains no valid legal or factual support and is once again filled with misrepresentation as to a litany of facts, supported only by Mr. Fiorovanti's signature.

The motion reeks of yet another Strategic Litigation Against Public Participation ("SLAPP") by KBS.

Plaintiff is an interested party to KBS's application and has every right under the Municipal Land Use Law to bring the claims that it has brought against KBS, and to voice its objections to KBS's application. Clearly, KBS is attempting to silence plaintiff, in order to quell objections to its application, and to harm plaintiff in retaliation for bringing KBS's illegal activities to the attention of the Township and the Court. While Plaintiff has disproven KBS's fictitious retellings of history in virtually every filing in the parties' long and arduous relationship, plaintiff must once again respond to them here.

The action that plaintiff sought to challenge was the May 1, 2023 hearing of testimony on KBS's use variance application.

The meeting was not adequately noticed, and as such, was held in violation of OPMA. Plaintiffs also alleged that the Board failed to constitute itself as a zoning board, and as such, could not take any action at all.

KBS, in its characteristic disregard for the full facts, seeks to advance a fictional version of Plaintiff's complaint by merging the three issues raised therein into one single issue. KBS asserts that the action sought to be voided was the Board's February 6, 2023 "reorganization." This is objectively false.

As explained above, plaintiff sought to void the actions which took place on May 1, 2023 for three separate reasons.

The first reason was due to the Board's failure to reorganize and properly constitute itself as a municipal zoning board. As a result, the Board would not have the power to act in any capacity, including hearing testimony on KBS's application. Second, plaintiffs asserted that the hearing was not adequately noticed pursuant to the OPMA. Finally, plaintiff argued that the chairman's failure to open the meeting with a statement of how and where adequate notice was provided also violated the OPMA. 

It should be noted that the court did not find the final claim to be untimely. Rather, the court dismissed the claim without prejudice and indicated that it would allow plaintiff to bring the claim along with any eventual prerogative writ challenging a potential Zoning Board approval.

KBS strategically ignores the above facts and presses the narrative that Plaintiff's entire claim only sought to void the Board's reorganization. Not only is this revisionist history, as explained, but it is illogical.

Mr. Shea's continues to argue that Lake Terrace should not get their legal fees because; a) Sudler's complaint was not frivolous, b) the complaint was filed timely, and c) KBS has not shown that the complaint was filed for a frivolous purpose.

Judge Hodgson is set to hold oral arguments on the matter this Friday, January 5, 2024.

As previously reported here on FAA News, Lake Terrace's fight in court to remain operating a banquet hall without Township approval has already cost taxpayers over $200,000.

To join a FAA News WhatsApp Group, click here.

To join the FAA News WhatsApp Status, click here.