The legal war between Lake Terrace and their industrial park neighbors continues to escalate.
Lake Terrace has filed a demand seeking their legal fees for fighting Sudler's last litigation. Sudler responded by filing a Notice of Appeal to the Appellate Division. This removed the Superior Court's jurisdiction from hearing the motion for legal fees.
In response to this mess, Lake Terrace is now asking the Appellate Division to remand jurisdiction back to the Superior Court so they can hear the motion for legal fees.
The entire matter is now on hold pending the outcome of the Appellate Division's ruling on this motion.
The original 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.
As previously reported here on FAA News, at oral arguments held in October 2023, 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. 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.
As previously reported here on FAA News, Lake Terrace is now fighting back with a motion demand for Sudler to pay their legal fees for fighting this litigation, which they allege is a campaign in order to pressure KBS into the sale of its property.
Mr. Fiorovanti wrote:
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....
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.
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.
As previously reported here on FAA News, Sudler has filed opposition to the motion for legal fees. Judge Hodgson was set to hold oral arguments on the matter this Friday, January 5, 2024.
However, after KBS filed their motion in Superior Court, Sudler filed a Notice of Appeal to the Appellate Division. This serves as a first notice that they intend to file a complete appeal in the coming months.
By filing this initial notice to the higher court, pursuant to court rules, Sudler removed the case out of the jurisdiction of the Superior Court (as typically, you complete your case in Superior Court before moving on to the Appellate Division, hence you can't be in both venues at the same time). This move jeopardized KBS's pending motion for legal fees which now can't be heard by the Superior Court.
Seeing this conundrum, KBS filed a motion asking the Appellate Division to either temporarily remand the matter back to the Superior Court so they can adjudicate the motion for legal fees, or in the alternative, dismiss the pending appeal on the basis that until the Superior Court resolves the motion for legal fees, the appeal is interlocutory and non-final.
Accordingly, Judge Hodgson has adjourned the motion for legal fees at least until Friday, February 16, 2024, pending the Appellate Division's ruling on the motion for remand.
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