ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The problem with this— as also fatal in the trial court’s upholding the Board’s denial— is that each interest is its own analysis.  For example, citing “open space” as the interest, which the Board never did, presents conflict with narrow tailoring: there is already comparable signage in the RCD Zone.  The trial court, in fact, applied a standard more akin to “rational basis” for constitutional scrutiny than *E & J Equities, LLC*’s “intermediate scrutiny. ”  The “rational basis” standard is merely whether “the state rationally could have believed [the enactment] would promote its legitimate interest” and whether the enactment is “wholly irrelevant to [the] goal. ”  See e.g. *Phila. Police & Fire Ass'n for Handicapped Children, Inc. v. Philadelphia*, 874 F.2d 156, 164 (3d Cir. 1989).  *E & J Equities, LLC* has a higher standard and requires actual evidence and more narrow tailoring (as already set forth).  Accordingly, [...] was entitled to a plenary hearing to defend the Distance Regulation, but that entitlement works both ways.  The purpose of a plenary hearing is to allow a municipality to present proofs justifying a First Amendment restriction, but it is likewise to hold such proofs to adversarial challenge.  See *Twp. of Cinnaminson*, supra.  The trial court absolved [...] of its evidential failure, even though [...] clearly raised the evidential problem in opposition to [...]’s “motion to dismiss” and requested a plenary hearing if the Court were inclined to ignore [...] of its failure to submit any actual evidence.
[brief] The Trial Court was simply in error and the Public Trust Doctrine Issues must be addressed on their merits.  As detailed below, the failure to address and comply with the Public Trust Law is clear, and requires reversal of the Trial Court Order/Opinion.  F.  The Challenged Ordinance, the Redevelopment Plan it Adopts, and the Zoning Standard it Creates, all Violate the Public Trust Doctrine and All Should be Declared Invalid by this Appellate Court:  Once free to acknowledge and address the Public Trust Doctrine issues on the substantive merits, this is not a close case.  Even the Trial Court had to concede that – on the merits – the Appellant’s Public Trust Doctrine arguments were of substance, conceding:  [...] may, at the end of the day, be correct that any proposal to reduce available parking spaces from more than 300 to approximately 150 and to change such from publicly available to privately controlled may violate the Public Trust Doctrine (Pa1727).  The “end of the day” should have been the trial date of February 27, 2023, at which time the Public Trust Doctrine, the dispositive factual and legal issue in this case, was not even allowed to be mentioned.  POINT II: THE TRIAL COURT’S DISMISSAL OF COUNTS I, II & III OF THE COMPLAINT SHOULD BE REVERSED (Pa1718, 1729)
[brief] ”  Fairfield, 198 N.J. at 271-72.  Consistent with that clear Legislative purpose, the plain text of the statute unmistakably and unambiguously provides that it is the “person” who “appl[ies] in writing” to the Board who “shall have the burden of proof. ”  N.J.S.A. 40D:55-68.  The word “shall,” of course, is not a Legislative suggestion but a Legislative mandate.
[brief] Finally, Plaintiff alleged that it suffered economic loss, as a result of this reliance, since it was effectively cut out of the deal and kept in the dark about the closing and cut out of the deal.  Had [...] and [...] advised Plaintiff that [...] was continuing to pursue the transaction without Plaintiff, or that the closing was in fact rescheduled to occur, then Plaintiff could have taken additional steps to protect its legal interests and ensure that the closing did not proceed without Plaintiff.  (Pa11-12, Complaint ¶ 46).  In the court below, [...] argued that any reliance upon [...]’s statements was “unjustified” and should be deemed unreasonable as a matter of law.
[brief] ###  TABLE OF AUTHORITIES | CASES | PAGE | |----------------------------------------------------------------------|------| | **Dunn v. United States**, 284 U.S. 390 (1932) | 20 | | **Frye v. United States**, 293 F. 1013 (D.C. Cir. 1923) | 11, 30, 38 | | **Pomerantz Paper Corp. v. New Cmty. Corp.**, 207 N.J. 344 (2011) | 40 | | **Rosenberg v. Tavorath**, 352 N.J. Super. 385 (App. Div. 2002) | 40 | | **State in Interest of A.B.**, 219 N.J. 542 (2014) | 32 | | **State v. Banko**, 182 N.J. 44 (2004) | 20 | | **State v. Bell**, 241 N.J. 552 (2020) | 63 | | **State v. Bielkiewicz**, 267 N.J. Super. 520 (App. Div. 1993) | 18 | | **State v. Blake**, 234 N.J. Super. 166 (App. Div. 1989) | 33 | | **State v. Brown**, 138 N.J. 481 (1994) | 53 | | **State v. Brown**, 80 N.J. 587 (1979) | 19 | | **State v. Burney**, 255 N.J. 1 (2023) | passim | | **State v. Burney**, 471 N.J. Super. 297 (App. Div. 2022) | 31, 32, 42 | | **State v. C.W.**, 449 N.J. Super. 231 (App. Div. 2017) | 59 | | **State v. Canfield**, 252 N.J. 497 (2023) | 26 | | **State v. Clarity**, 454 N.J. Super. 603 (App. Div. 2018) | 60 | | **State v. Curtis**, 195 N.J. Super. 354 (App. Div. 1984) | 16 | State v. Denofa, 187 N.J. 24 (2006) ................................................................. 26 State v. Dunbrack, 245 N.J. 531 (2021) ......................................................... 26 State v. Fair, 45 N.J. 77 (1965) ........................................................................
[brief] Here, there are no material issues of fact as to the issue of the Borough’s authority and grounds to remove [...] from his position as Sewerage Authority Commissioner.  [...] received a fair hearing before an impartial hearing officer.  [...] possessed a video tape of a naked man defecating in the mouth and on a naked female followed by the following words “Shit Happens, Thug Life, Dug Life, and Bitch”.  He was in a chat room and, according to his testimony, he intended and did, in fact, send it to another member.  In doing so, he made it accessible to all members.  He then joked about it.  After the investigation commenced, he failed to cooperate by being interviewed and did not admit to transmitting the offensive video until [...] testified.  It was only then that he apologized.  The undisputed proofs establish that Plaintiff’s behavior in disseminating vulgar, misogynistic pornography constitutes misconduct in office and neglect of his duty to the public to act with integrity and respect towards all individuals thereby warranting removal.  On these bases, the Borough respectfully submits that the Trial Court’s ruling denying the Borough’s motion for summary judgment is reversed.
[brief] Plaintiff does not focus any attention or argument to what ¶24 of the JOD specifically and legally binds the parties to.  The record below clearly establishes that the Plaintiff never meaningfully consulted with the Defendant as it pertained to either child’s private (and very expensive) college educations prior to (or after) enrollment.  In fact, Plaintiff bases her whole argument below not on what ¶25 of the JOD actually says… but rather her illusory and *ex post facto* fiat (or “understanding” as she calls it) that the Defendant is and always was obligated to pay 1/3rd of the children’s entirely debt financed college educations because that how she personally “understood” it even if ¶25 of the JOD mandates otherwise.
[brief] TABLE OF CONTENTS | Section | Page | |------------------------------------------------------------------------|------| | TABLE OF JUDGMENTS, ORDERS, AND RULINGS | ii | | TABLE OF AUTHORITIES | iii | | PRELIMINARY STATEMENT | 1 | | PROCEDURAL HISTORY | 2 | | STATEMENT OF THE FACTS | 3 | | LEGAL ARGUMENT | 9 | | I.  THE STANDARD OF REVIEW REQUIRES THE APPELLATE COURT TO GRANT DEFERENCE TO THE DECISION OF THE TRIAL COURT | 9 | | II.  THE TRIAL COURT WAS NOT REQUIRED TO HOLD A HEARING BEFORE ENFORCING THE ARBITRATION CLAUSE IN THE AGREEMENT | 11 | | III.  THE AGREEMENT PROVIDED SUFFICIENT NOTICE OF THE WAIVER OF RIGHTS TO APPELLANTS | 13 | | IV.  THE TRIAL COURT DID NOT ERR IN FINDING THAT PLAINTIFF, JULIEN COPPI, WAS A “PARTICIPANT” BY THE TERMS OF THE AGREEMENT | 15 | | V. THE TRIAL COURT DID NOT ERR IN FINDING THAT RESPONDENTS DID NOT WAIVE THE RIGHT TO COMPEL THE MATTER TO ARBITRATION | 18 | | CONCLUSION | 22 | TABLE OF JUDGMENTS, ORDERS, AND RULINGS Order Granting Defendant’s, [...]’s, Motion to Stay and Compel Arbitration (May 2, 2024)……………Pa0001-Pa0002 Order Granting Defendant’s, [...]’s, Motion to Stay and Compel Arbitration (May 2, 2024)…………………………Pa0003-Pa0004 ### TABLE OF AUTHORITIES | Cases | Page(s) | |--------------------------------------------|---------| | Curtis v. Cellco Partnership, | 13-14 | | 413 N.J. Super. 26 (App. Div. 2010) | | | Flanzman v. Jenny Craig, Inc., | 10 | | 244 N.J. 119 (2020) | | | Green v. Monmouth Univ., | 10 | | 237 N.J. 516 (2019) | | | Griepenburg v. Twp. of Ocean, | 10 | | 220 N.J. 239 (2015) | | | Griffin v. Burlington Volkswagen, Inc., | 13 | | 411 N.J. Super. 515 (App. Div. 2010) | | | In re Ridgefield Park Bd. of Educ., | 10 | | 244 N.J. 1 (2020) | | | Kleine v. Emeritus at Emerson, | 11, 12 | | 445 N.J. Super. 545 (App. Div. 2016) | | | Kocanowski v. Twp. of Bridgewater, | 10 | | 237 N.J. 3 (2019) | | | Martindale v. Sandvik, Inc., | 13 | | 173 N.J. 76 (2002) | | | Rova Farms Resort, Inc. v. Invs. Ins. Co. of Am., | 11 | | 65 N.J. 474 (1974) | | | Skuse v. Pfizer, Inc., | 10 | | 244 N.J. 30 (2020) | | | State v. Dickerson, | 10 | | 232 N.J. 2 (2018) | | | State v. Fuqua, | 10 | | 234 N.J. 583 (2018)
[brief] 2005) | | | **State v. Steele,** | 9 | | 430 N.J. Super. 24 (App. Div. 2013) | | | **In re Vitamin Antitrust Litigation,** | 19 | | 2001 WL 35814436 (D.D.C. Sept. 11, 2001) | | | Statutes | | | Conscientious Employee Protection Act (CEPA) | 6, 7 | | Other Authorities | | | Federal Rule of Civil Procedure 30(b)(1) | 15, 18 | | Pressler & Verniero, *Rules Governing the Courts of the State of New Jersey*, cmt. 1 to R. 4:14-2 | 14 | | Rule | Page | |------|------| | Rule 4:14-1 | 10 | | Rule 4:14-2(a) | 10, 11 | | Rule 4:14-2(c) | 11, 14 | | Rule 4:23-1 | 4 | | Rule 4:23-4 | 4, 12 | | Rule 4:42-2(b) | 4 | PRELIMINARY STATEMENT The present dispute before this Court involves Plaintiff [...]’s (“Plaintiff”) desire to compel the deposition of a non-party witness located in Germany, [...] (“[...]”), through deposition notices issued to counsel for the named Defendants in this action.
[brief] In its Decision, the Trial Court points to one-sided negotiations ([...]’s attempt to get [...] to shoulder some of the debranding penalties) that have no impact on the revised offer submitted on May 4th, 2023 and do not appear in same, as a basis for concluding that the Defendant, [...] had to also acknowledge the revised offer in order to make it a valid offer.  Da395 (see footnote).  The Trial Court, in other words, got behind/underneath the bona fide offers (the one submitted to [...] on January 17th and the one submitted on May 4th, 2023), to see that ongoing negotiations might change more than just the acknowledgement of the Plaintiff’s ROFR, thereby requiring a presentation to the Plaintiff by [...], not [...].  No other change was made to the offer and therefore, there was no reason to require [...] to be the one to present the amendment to Plaintiff [...] in May of 2023.  The one-sided negotiating (or, attempt to renegotiate terms) by [...]’s attorney could not alter the terms of the already established contract without some expression by Defendant [...] to these issues.  The Trial Court went too deeply behind the transaction because of discovery having revealed communications post contract that had no legal impact on the original PSA, and, due to the ROFR term being non-essential, no need to resubmit the offer to the Plaintiff except that the Plaintiff insisted upon it.
[brief] Da11; Da13.  Prior to the commencement of this condemnation action, Appellant was specifically advised that the purpose of the Project was to repair the existing damaged seawall located on his Property.  The proposed easement language (Da11); the map attached to the Verified Complaint and Declaration of Taking (Da13); and the project description contained in the Borough’s appraisal report (Pa21-24) all contained the correct information that the easement was located 177.65 feet from the intersection of the northerly R.O.W. line of [...] with the easterly R.O.W. line of [...].  Most importantly, photos and testimony presented by the Borough’s appraisal expert during the commissioners’ hearing reflected the correct distance of 177.65 feet.  Appellant had actual knowledge of the location of the easement; he knew where the damaged seawall was located on his Property and observed the repairs being undertaken in 2019 to the seawall; he had actual knowledge the repair work was limited to the damaged seawall and no work have been performed sixty (60) feet to the west.
[brief] Plaintiff is further appealing the Orders entered by the Trial Court denying his Motion for Reconsideration and Motion to Recuse.  In or about February 2019, Plaintiff’s mother, [...] (hereinafter “[...]”), with the assistance of Plaintiff, submitted an application to Defendants, [...] and Mayor [...] (hereinafter collectively “[...]” or “[...]”), seeking a designated handicap parking space in front of [...] residence located at 393 Park Avenue in [...], New Jersey.  [...]’s application was denied, with incontrovertible evidence that notification was provided to Plaintiff, on or before August 5, 2019.  The denial of [...]’s application would spark years of threats of litigation, forum shopping complaints filed with various entities such as the United States Department of Housing and Urban Development, and (frivolous) litigation before the Superior Court of New Jersey.  Ultimately, Plaintiff’s Verified Complaint and Order to Show Cause filed with the Superior Court would be dismissed in their entirety with prejudice by the Court Below.  The Trial Court factually determined that Plaintiff’s causes of action were time barred by the applicable Statutes of Limitations.  The date of accrual regarding legal action on the handicap parking application was determined to be on August 5, 2019, i.e., the date of denial of [...]’s handicap application.  The date of accrual regarding legal action on Plaintiff’s Open Public Records Act requests was determined to be in or about April and May 2021, i.e., the respective dates of [...]’s responses to Plaintiff’s requests.  Accordingly, Plaintiff’s Verified Complaint and Order to Show Cause, filed on August 25, 2023, were excessively beyond the applicable Statutes of Limitations as determined by the Court Below and thus properly dismissed with prejudice as time barred.  Since Plaintiff was fully cognizant of his ability to file his own application for a handicap parking space designation the dismissal should have been the end of this matter.  Instead, Plaintiff filed this utterly frivolous appeal seeking relief to which Plaintiff has already been provided by way of his approved handicap parking space application.  Plaintiff is hellbent and willfully continuing litigation to which he knows the relief has already been provided.  Plaintiff is not seeking justice, but rather seeking to inflict harm upon [...] for the illusory wrongs Plaintiff has concocted.  In the matter at bar, as set forth at length below, the Trial Court properly, appropriately, and based upon the respective applicable legal standards (1) dismissed this matter with prejudice; (2) denied Plaintiff’s Motion for Reconsideration; and (3) denied Plaintiff’s Motion to Recuse.
[brief] [...], whose name appears on the Affidavits of Service filed in this case (14a) testified that he has absolutely no independent recollection of the service made in this case.  T4:p.21:8-11.  The Court expressly recognized that he had no independent recollection of this particular service of process.  T4:p.29:3-6.  [...] testified that he had no contact with the notary in this case.  T4, p. 23:3-13  Id.  The Affidavits were not properly notarized and the notary was never called as a witness to explain the discrepancies or circumstances as to how she could have notarized a document signed by [...] when she, according to his testimony, had absolutely no contact with him.  This violates notary rules (even the relaxed rules in place during COVID) which allowed for telephone or video contact which did not occur in this case.
[brief] DEFENDANTS CANNOT DISPUTE THE LOWER COURT’S FAILURE TO CONDUCT A NUANCED ANALYSIS OF THE FACTS TO DETERMINE WHETHER THE RETALIATORY ACTIONS WERE MATERIALLY ADVERSE (5a, 8a, 9a, 17a).  Defendants each tout the lower court’s sole mention of the Injunction – in the Statement of Facts, no less – as proof that the lower court considered it when determining whether Plaintiff properly pled a pattern of retaliatory actions that were materially adverse.  Def. [...] and [...] Br., pg. 19; Def. [...] and [...] Br., pg. 31; 5a.  Defendants also erroneously contend that Plaintiff believes that the Injunction renders her immune from disciplinary actions.  See, e.g, Def. [...] and [...] Br., pg. 15.  These arguments lack any credibility and should be disregarded.
[brief] (Pa922 to Pa933).  **E.  Even if the LRHL Authorized A Payment Not Permitted by the MLUL, Such Payments are Unlawful in the Absence of an Ordinance and Standards Governing Those Payments**  Even where there is uncertainty as to whether *N.J.S.A.* 40:12A-8 separately authorizes exactions in a land use context, the failure to adopt an --- 2  Appellant certifies that the only decision of which Appellant is aware that is inconsistent with these cases is *[...], and [...] v. [...], et al*, Docket No. [...], 2015 WL 10986475 (N.J. Super. Ct. Law Div., May 18, 2015).  ordinance with standards and procedures renders such exactions unlawful because they are virtually unreviewable and vulnerable to abuse.  *West Park Ave., Inc. v. Ocean*, 48 N.J. 132 (1966) (payment for school costs are illegal without ordinance); *Longridge Builders, Inc. v. Planning Bd. of Princeton*, 52 N.J. 348, 350 (1968) (exaction in the absence of ordinance standards is prone to abuse); *Pond Run Watershed Ass’n v. Township of Hamilton Zoning Bd. of Adjustment*, supra, 397 N.J. Super. at 358-59 (financial contribution for off-tract improvements must be authorized “by statute and implemented by municipal ordinance”); and *Nunziato v. Planning Bd. of Borough of Edgewater*, supra., 225 N.J. Super. 124.  In *Nunziato*, the Edgewater Planning Board and the developer of a high-rise apartment building had agreed that the latter would make a payment of $203,000 to the town’s Affordable Housing Fund.  The Planning Board then granted site plan approval for the construction of a high-rise condominium project.  On appeal, this Court held that the actions of the Planning Board were arbitrary, capricious and unreasonable.  The Court explained that “[t]he intolerable spectacle of a Planning Board haggling with an applicant over money too strongly suggests that variances are up for sale. ”  *Id.* at 134.  That is, the possibility of abuse makes the payment unlawful.  Appellant recognizes the *Longridge*, *Nunziato* and other cases involve payments agreed to at the planning board level in connection with the MLUL.  However, the concerns expressed by this Court and the Supreme Court about paying for approvals under an unreviewable assessment regime apply with equal force in the redevelopment context.  For all of the reasons discussed above, the $2,000,000 exaction in return of a density bonus is unauthorized and unlawful.
[brief] This was compelling evidence of lying under oath that should have been admitted at trial.  In response to [...]’s motion for reconsideration, [...] filed an opposition that included an excerpt of an email exchange between counsel for [...] and counsel for [...].  The text of the email was copied into a letter submitted to the court and simply stated that counsel for [...] did not serve any evidence in discovery concerning [...]’s convictions.  2T:7-6 to 15.  The court was also provided a copy of [...]’s answers to interrogatories, which were answered on information and belief by a claims adjuster.  Da111; 2T:25-4 to 26-5.  Because the answers to interrogatories were not answered by [...] himself, they do not disclose any criminal convictions and are ultimately irrelevant.  On October 3, 2023, the trial court heard additional oral argument on the admissibility of [...]’s conviction after being provided a copy of the 2018 judgment of conviction.
[brief] (Db11-13)  Rule 1:36-3 clearly mandates that “No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all contrary unpublished opinions known to counsel. ”  (Emphasis added.)  Neither of these cases has been provided by appellate counsel for [...], nor has a certification been submitted stating that there are no known contrary unpublished opinions.  Because [...] failed to comply with Rule 1:36, these unpublished opinions must be wholly disregarded.
[brief] With regard to affirmative misrepresentations, the alleged misrepresentation must be an actual false representation of fact.  See Gennari v. Weichert Co. Realtors, 148 N.J. 582, 607 (1997) (holding that a material misrepresentation must actually be false); Trustees of Columbia University v. Jacobsen, 53 N.J. Super. 574, 577 (App. Div. 1959) (refusing to recognize fraud action predicated upon alleged failure of university to provide courses as represented in college catalog).
[brief] Under our judicial system, a party is entitled to only “one appeal as of right to a court of general appellate jurisdiction."  (emphasis added)  *Midler v. Heinowitz*, 10 N.J. 123, 129 (1952); *State v. Fletcher*, 174 N.J. Super. 609, 614 (App. Div. 1980).  In that one appeal as of right, the appellant "must present all arguments in support of his stand" and, if the party "fails to present all of the points on which he rests his case[,] [the party] is deemed to have waived them and . . . cannot at some later stage in the same proceeding . . . argue points which [the party] has in effect abandoned."  *State v. Lefante*, 14 N.J. 584, 591 (1954).  Accordingly, "the filing of separate appeals by the same party from the same judgment is an obvious, untenable, and intolerable violation of the overriding policy of judicial administration that litigation be conducted expeditiously, economically, and efficiently."  *Shimm v. Toys From The Attic, Inc.*, 375 N.J. Super. 300, 304 (App. Div. 2005) quoting *In re Unanue*, 311 N.J. Super. 589, 598-99 (App. Div. 1998); see, e.g., M.C. v. Div. of Med. Assistance & Health Servs., 2019 N.J. Super. Unpub. LEXIS 14 (App. Div. 2019).
[brief] *Grzanka*, Supra, at 573; *Carroll*, supra, at 388.  In this case, as detailed in the Statement of Facts, all the Appellant knows is that she slipped and fell on a liquid.  The Appellant is unable to say how long the condition was present before her fall.  The Appellant does not know what the liquid was.  She does not know the source of the liquid.  She does not know how the liquid got to the floor.  Store employee [...] came to the Appellant after she fell.  She observed a clear liquid on the floor that had a diameter of about a baseball.
[brief] (Ca200-201); (Ca137 at RQA 14, Ca145 at Response to RQA 14).  At this meeting she was asked to wear a mask, and replied “I’m not wearing a mask. ”  (Ca200-201).  12.  In response to Respondent’s January 10, 2022 Facebook posts which implored teachers to drop out of their unions – with which the Board negotiates labor contracts – the Board issued a Resolution on March 7, 2022, stating that Respondent must “refrain from encouraging or discouraging an employee from joining, forming, or assisting an employee organization” in accordance with the “Workplace Democracy Enhancement Act.
[brief] Pa025.  [...]’s SPA proposed the construction of a 473-unit inclusionary multifamily residential community, including 71 affordable units, along with a clubhouse, associated amenities, and related sited improvements.  Pa110.  The Board held public meetings on [...]’s SPA on April 25, 2022; May 9, 2022; May 23, 2022; and June 13, 2022.  Pa106.  The Board voted and approved [...]’s SPA on June 13, 2022.  Pa025; Pa106.