ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] "[T]he applicant for a (d)(6) variance on grounds of hardship must show that the height restriction in effect prohibits utilization of the property for a conforming structure."  Grasso v. Borough of Spring Lake Heights, 375 N.J. Super. 41, 51 (App. Div. 2004).  The record is bereft of hardship evidence.  "[S]pecial reasons necessary to establish a height variance must be tailored to the purpose for imposing height restrictions in the zoning ordinance."  Id. at 52.  Very early on, courts recognized the relationship between height restrictions and the public welfare because the height of a building could impact traffic congestion, fire hazards, public health, adequate light and air, and population density.  E.g., Pritz v. Messer, 149 N.E. 30, 31 (Ohio 1925), overruled on other grounds, Village of Hudson v. Albrecht, Inc., 458 N.E.2d 852, 855-56 (Ohio), appeal dismissed, 467 U.S. 1237 (1984).  Height restrictions like restrictions on density, bulk or building size, can also be a technique for limiting the intensity of the property's use.  Id. at 52-53.  As previously demonstrated, [...] presented no opinion evidence regarding the alleviation of traffic congestion.  The premise underlying the proposed (d)(6) -- Applicant's buildings should be taller because the easterly Boardwalk across the street is built up -- cheats the westerly property owners of their light and air.  The witness said as much:  So, in order to promote and maximize those water views, we have had to go up an additional height with the units.  1T44-5 to 1T44-7.  The Applicant's private, selfish interest in having superior views, far from benefiting the public, will merely necessitate elevating the neighboring buildings.  Finally, it bears repeating that the height restriction is required for the very purpose of adding units in spite of the density restriction.  By facilitating the use intensity, (d)(6) relief is contrary to the admonition in Grasso.  The trial court applauds [...]'s testimony "that the design would advance the goals of the MLUL" (Pa67).  The design could advance those goals without the variance.
[directive] The Rules and regulations shall provide for uniform classification of the resolution of complaints as follows:  (a)  Sustained.  A preponderance of the evidence shows an officer violated any law; regulation; directive, guideline, policy, or procedure issued by the Attorney General or County Prosecutor; agency protocol; standing operating procedure; rule; or training.  (b)  Unfounded.  A preponderance of the evidence shows that the alleged conduct did not occur.  (c)  Exonerated.  A preponderance of the evidence shows the alleged conduct did occur, but did not violate any law; regulation; directive, guideline, policy, or procedure issued by the Attorney General or County Prosecutor; agency protocol; standing operating procedure; rule; or training.  (For example, at the conclusion of an investigation into an excessive force allegation, the agency finds that the officer used force (alleged conduct) but that the force was not excessive (alleged violation). )  (d)  Not Sustained.  The investigation failed to disclose sufficient evidence to clearly prove or disprove the allegation.  2.2.4
[brief] **A Waiver of Arbitration, Express or Implied, Should be Assessed Under the Cole Factors.**  Waiver under New Jersey law “involves the intentional relinquishment of a known right and, thus, it must be shown that the party charged with the waiver knew of his or her legal rights and deliberately intended to relinquish them. ”  *Shebar v. Sanyo Bus. Sys. Corp.*, 111 N.J. 276, 291 (1988).  “In other words, for there to be a waiver of arbitration rights, a party must know of the right and affirmatively reveal the intent to waive the right. ”  *Spaeth v. Srinivasan*, 403 N.J. Super. 508, 514 (App. Div. 2008).  “Determining whether a party waived a right is a fact-sensitive analysis. ”  *Cole*, 215 N.J. at 277.  A party can expressly waive its right to arbitration, *Wein v. Morris*, 194 N.J. 364, 376 (2008), and it may also waive that right by implication.  *Knorr v. Smeal*, 178 N.J. 169, 177 (2003).  “The intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or by indifference. ”  Ibid.  Above all, “[t]he party waiving a known right must do so clearly, unequivocally, and decisively. ”  Ibid.  Our Supreme Court has recognized that while parties may waive their right to arbitrate in certain circumstances, such waiver is “never presumed. ”  *Cole*, 215 N.J. at 276.  “Any assessment of whether a party to an arbitration agreement has waived that remedy must focus on the totality of the circumstances,” and “no one factor is dispositive.
[brief] [...]  Site Plans, dated January 13, 2022 ............Pa45  Complaint in Lieu of Prerogative Writs, dated June 21, 2022 ..............................................................................Pa49  Answer to Complaint in Lieu of Prerogative Writs, dated July 21, 2022 ..........................................................Pa61  Pretrial Order, dated September 15, 2022 ..................................................Pa69  Written Decision, dated April 5, 2023 ...........................................Pa72  Final Order, dated April 10, 2023 .....................................................Pa102  Order After Status Conference, dated July 31, 2022 ......................Pa103 Order  Dismissing Plaintiff’s Complaint with Prejudice, dated October 27, 2023 ..............................................Pa104  Zoning Board Hearing Transcript, September 9, 2021 ...............Pa105  Zoning Board Hearing Transcript, December 9, 2021 .................Pa227  Zoning Board Hearing Transcript, January 27, 2022 ......................Pa321  Zoning Board Hearing Transcript, March 24, 2022 ......................Pa468  Notice of Appeal, dated November 29, 2023 ......................................Pa495  Certification of Transcript Completion and Delivery ......................Pa499  PROCEDURAL HISTORY Plaintiff, [...] (hereinafter “Plaintiff” or “[...]”), filed an application for development (the “Application”) with Defendant, [...] (hereinafter “Defendant” or the “Board”), seeking approval of a d(5) density variance, lot consolidation, preliminary major site plan approval, along with variance and design exception relief for property designated as Block 610, Lots 1, 2, 3, 5, 11, 30, 31 and 33 on the official Tax Map of the Township of Toms River.
[brief] ”  *Id.* at 518.  In its holding, the court directly relied upon the RESTATEMENT (SECOND) OF CONTRACTS § 23 (1981):  “[W]here an offer is contained in a writing [a party] may, without reading the writing, manifest assent to it and bind himself without knowing its terms…  [A]n offeror or offeree who should be aware of [the terms of a writing] may be bound in accordance with them if he manifests assent. ”  Crucially, the Third Circuit took notice of “common sense” and recognized that commercial relationships do not arise of whole cloth without a corresponding written agreement to which all parties are bound:
[brief] 29 N.J.R. 3920(a) (Sept. 15, 1997); 30 N.J.R. 645(a) (Feb. 17, 1998).  Since its initial adoption, the [...] Rule has been recodified and amended, however, the provisions relevant to this case have remained essentially the same. \(^9\)  In the 1997 rule proposal, the Department explained that it was “proposing a special CAFRA permit applicable only to the [City] as a pilot project for streamlined CAFRA reviews. ”  29 N.J.R. at 3920.  “The Department determined that the proposed special [...] Redevelopment Zone Permit [was] appropriate and feasible in the City” based on, *inter alia*, the City’s designation of the Redevelopment Area.  *Ibid.*  The Department further stated:  [T]he City has adopted an ordinance defining a Redevelopment Zone which is an area the City has determined is critical to the economic well-being of the City and would benefit the most from a comprehensive plan for revitalization and redevelopment, as well as a Design Guidelines Ordinance which contains the --- \(^9\)  The [...] Rule was originally proposed and adopted as *N.J.A.C.* 7:7-7.5.  See 29 N.J.R. at 3920, 3923; 30 N.J.R. at 646.  It was recodified as *N.J.A.C.* 7:7-7.4 in 2000.  32 N.J.R. 864(a) (March 20, 2000); 32 N.J.R. 3784(b) (Oct. 16, 2000).  In 2015, it was recodified again in its current form as multiple subsections of *N.J.A.C.* 7:7-7.
[brief] Plaintiffs' primary argument is that the ordinance will undermine the "efficacy" of the District and that permissible scale, size, mass and arrangement of future construction in the District will be affected.  While certainly the ordinance is of interest to this limited public, this is not the public interest envisioned by the Court in permitting limited expansion of the rule.  The cited cases, Concerned Citizens, Willoughby, DeRose and Horsnall, must represent the exception rather than the rule.  Rocky Hill, supra, 406 N.J. Super. at 401.  If mere traffic and intensity of development were sufficient to create “public interest,” then every land use dispute would justify enlargement of the 45-day appeal period and the policy of repose would be meaningless.
[directive] In accordance with Part III, monetary bail may be set for a defendant arrested on a disorderly persons offense on an initial Complaint-Warrant (CDR-2) only when it is determined that no other conditions of release will reasonably assure the eligible defendant’s appearance in court when required.  For these defendants the court shall make a pretrial release determination no later than 48 hours after a defendant’s commitment to the county jail; the court shall consider the Pretrial Services Program’s risk assessment and recommendations on conditions of release before making a release decision.  (b) All Other Defendants.  All defendants other than those set forth in paragraph (a) shall have a right to bail before conviction on such terms as, in the judgment Rule 7:4-1 of court, will insure the defendant’s presence when required, having regard for the defendant’s background, residence, employment and family status and, Right to Pretrial Release particularly, the general policy against unnecessary sureties and detention; in its discretion, the court may order defendant’s release on defendant’s own (Includes Option of R.O.R. Bail for recognizance and may impose terms or conditions appropriate to such release.  All other defendants include: (i) those charged on an initial Complaint-Warrant certain defendants) (CDR-2) with a petty disorderly persons offense or other non-disorderly persons offense within the jurisdiction of the municipal court, and (ii) all defendants brought before the court on a bench warrant for failure to appear or other violation, including defendants initially charged on a Complaint-Warrant (CDR-2) and those initially charged on a summons.  Defendants issued a bench warrant who were charged with a disorderly persons offense on an initial Complaint-Warrant (CDR-2) may also be subject to reconsideration of conditions of release pursuant to Rule 7:4-9.  Note:  Defendants arrested on or after January 1, 2017 on a complaint-warrant for a disorderly persons offense are eligible defendants under the Criminal Justice Reform Law.
[brief] Appellant, [...] (“[...]”), was founded in 1949 with the mission to keep water clean, safe, and healthy.  It works to protect and restore the water and natural environment in central New Jersey through a combination of conservation, advocacy, science, and education.  [...] focuses much of its work in the Stony Brook-Millstone and the adjacent part of the Central Delaware River Watersheds, while also leading several statewide initiatives.  In particular, [...] works with municipalities on behalf of its 1,800 members to enact stronger stormwater management ordinances and more sustainable land use practices.  This instant appeal furthers Appellant’s core mission because the permit issued to Respondent [...] (“[...]”) is arbitrary and capricious, and against the legislative intent of both the Flood Hazard Area Control Act, Water Pollution Control Act, and the Water Quality Planning Act.
[brief] The Trial Court’s Unsubstantiated Belief That Plaintiff’s FAR Was Driven Solely By The Remediation Cost Was Not Valid (Pa37-39)  The trial court incredulously found that Plaintiff’s proposed FAR was calculated and driven solely by the remediation cost and not by the size or area of the lot.  In dismissing Plaintiff’s prerogative writ, the trial court concluded that “it appears to the court that the FAR is driven by the remediation cost, not that the FAR is restricting a conforming development. ”  Pa30.  Further, the trial court held that “the applicant is in essence financing its environmental obligations on the backs of neighbors whose properties the owner has contaminated. ”  Id.  In reality, nothing could be further from the truth.  In making these findings, the trial court seemingly ignored the fact on July 18, 2022, counsel for [...] specifically clarified for the Zoning Board (based upon questions raised by the Zoning Board) that the environmental considerations pertaining to remediation and the costs associated therewith would not be taken into account as a basis for the granting of variance relief, but the environmental cleanup may be considered a benefit to the proposal as well as that the neighbors whose properties were contaminated testified in favor of the development.
[brief] No law and no court rule stand as a bar to any foreclosure plaintiff from selling a property one day, one week, one month, or one year from taking title.  The timing of the sale is completely irrelevant to whether [...] was a bonafide purchaser\(^5\).  Again, if there was a reason within the foreclosure proceeding itself that might give a buyer notice of a defect, then that buyer might not be a bonafide purchaser or --- \(^5\)  This is not a case where Plaintiff flipped the title for a pittance to a related entity immediately after foreclosure.  The sale was a bonafide, arms-length transaction with no suggestion of impropriety. without notice.  But that is not what happened here; there was no defect in the foreclosure action and [...] had notice at every step.  It was not denied anything legally, procedurally, or constitutionally.  [...] had no reason for concern and it justifiably relied on the public record.  It was entitled to be protected.  Remembering that tax sale is intended so “it will not be worth the taxpayer's while to make the municipality his involuntary banker,” East Orange v. Palmer, 52 N.J. at 334, [...]’ used [...] as its involuntary banker to finance other projects and the result was foreclosure – fully predictable, expected, and justified.  That outcome should not have been disturbed.
[brief] In construing language in a contract or legal instrument, the ordinary rules of contract interpretation apply.  As our courts have often recognized, “[I]t is not the function of the court to make a better contract for the parties, or to supply terms that have not been agreed upon. ”  Graziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999); see also Temple v. Clinton Trust Co., 1 N.J. 219, 225 (1948) (“It is beyond the province of equity to substitute terms for those made by the parties to a contract, or to supply terms that have not been agreed upon”); Bar on the Pier, Inc. v. Bassbinder, 358 N.J. Super. 473, 483 (App. Div. 2003) (party to contract “did not bear the risk of anything except as specifically bargained for by the parties and as set forth in the agreement.
[brief] (12T:209-1 to 210-2).  [...] testified that “[...] … seemed to think that a statement about the defendant, the defendant’s knowledge of the nature and quality of his acts encompassed the issues of his knowledge or wrongfulness. ” (14T:101-17 to 22).  “I think these are two completely separate issues that need to be treated separately and I think the law requires that we treat them separately as the Judge will instruct. ”  (14T:101-23 to 102-1).  Here, there was no limiting instruction or interjection from the court.
[brief] He was not a roofer assigned to interact with customers; he was a customer sales associate experienced in providing customer service due to his prior training and employment as a cashier.  Specifically, jurors heard testimony that [...] had completed training to be a [...] cashier twice prior to the incident with [...].  When he was hired a third time to work in the Flooring Department, he was once again trained on how to interact with customers.  [8T 109:10-22, 110:2-5, 111:3-25].
[brief] Plaintiff requests a reversal of Defendant’s judgment and an entry of judgment in favor of his client in the amount of $53,725.00.  Plaintiff requests this although [...] specifically found that there were improper tax increases and late fees imposed by the Plaintiff.  (T3 13:23 – 15:10)  Further, Plaintiff has already admitted that the tax increases were improper.  (Da20)  Following a May 9, 2024 phone conference with [...]\(^2\), the Judge requested additional information regarding late fees and tax increases under the lease which were claimed as part of Plaintiff’s damages.  (T2 4:13 – 5:21)  Defendant provided a supplemental submission to the Court outlining the errors made by Plaintiff in calculating his damages.  (Da13)  After being --- \(^2\)  This May 9, 2024 transcript was omitted by Plaintiff and ultimately filed by Defendant after unsuccessfully asking Plaintiff three times to do so.  confronted with the improper assessment of tax increases as part of his damages, Plaintiff admitted same to be incorrect.  (Da20)  For those reasons, in the event that the appeal is granted, this matter should be remanded for further factfinding as the sum submitted by Plaintiff as his damages is patently incorrect.
[brief] Submitted: July 8, 2024  On the Brief: [...]  [...] (N.J. Bar No. 14581986)  [...] (N.J. Bar No. 015412011)  [...]  [...]  Tel: [...]  Fax: [...]  Attorneys for Defendant/Respondent  [...]  TABLE OF CONTENTS  PRELIMINARY STATEMENT ........................................................................................................1  PROCEDURAL HISTORY..................................................................................................................3  STATEMENT OF FACTS  ..................................................................................................................5  STANDARD OF REVIEW ................................................................................................................8  LEGAL ARGUMENT .......................................................................................................................9  I.  The Trial Court Did Not Err In Finding That [...]’s Rushed Takeover and Lockout of the Premises Precluded The Grant of The Motion To Enforce (Pa3).  9  II.  [...]’S Motion To Enforce is a Disguised Pre-Judgment Writ of Attachment as The Settlement Agreement Does Not Provide For Relief For Environmental Contamination Claims (Pa161).  .................................................................13  CONCLUSION ...............................................................................................................................16  #  TABLE OF AUTHORITIES | Case Name | Page(s) | |------------------------------------------------|---------| | **Amatuzzo v. Kozmiuk,** | 8 | | 305 N.J. Super. 469 (App. Div. 1997) | | | **Borough of Haledon v. Borough of North Haledon,** | 9 | | 358 N.J. Super. 289 (App.Div.2003) | | | **Brill v. Guardian Life Ins. Co.,** | 9 | | 142 N.J. 520 (1995) | | | **Del. River & Bay Auth. v. Hunter Constr. Inc.,** | 15 | | 344 N.J. Super. 361 (Ch. Div. 2001) | | | **Kampf v. Franklin Life Ins. Co.,** | 14 | | 33 N.J. 36 (1960) | | | **Long v. Mertz,** | 14 | | 21 N.J. Super. 401 (App.Div.1952) | | | **Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,** | 8 | | 140 N.J. 366 (1995) | | | **Nolan v. Lee Ho,** | 9 | | 120 N.J. 465 (1990) | | | **Pascarella v. Bruck,** | 9 | | 190 N.J. Super. 118 (App.Div. 1983) | | | **Rowe v. Bell & Gossett Co.,** | 8 | | 239 N.J. 531 (2019)  | | | **Temple v. Clinton Trust Co.,** | 14 | | 1 N.J. 219 (1948)  | | Wolfson v. Bonello, 270 N.J. Super. 274 (App. Div. 1994) .........................................................15  Defendant-Respondent [...] ([...]) submits the following brief in opposition to Plaintiff [...] 530 Duncan LLC’s ([...]) appeal of the Trial Court’s denial of [...]’s motion to enforce a June 30, 2023 Settlement Agreement (Settlement Agreement).
[brief] On February 21, 2024, Appellant’s counsel sent a letter to the Court requesting an adjournment of the trial to permit a Motion for Summary Judgment to be filed.  The adjournment request was made without the consent of Respondent’s counsel who objected to the request.  At this point, it was imperative for the Appellant to be brought before the Court and state its reasons for refusing to comply with the settlement agreement or otherwise explain his assertion that “new claims” could be brought against Respondent.  (See RA-43 through RA-46).  Appellant filed its Motion for Summary Judgment seeking the payment of the $1,096.00 settlement which had already been paid.  Respondent filed a Cross-Motion for Declaratory Relief barring the filing of any future claims pursuant to the Entire Controversy Doctrine and Res Judicata along with a request for counsel fees and costs.
[brief] This appeal emanates from the denial of defendant’s motion to suppress a firearm found in defendant’s waistband and CDS on his person.  On July 25, 2023, a motion to suppress hearing was held before the Hon. [...], J.S.C. where Detective [...] of the [...] was the sole witness.  The court denied the motion.  The following is a summary of the pertinent evidence and the court’s decision.  [...] is a six-year veteran of the [...] assigned to the Narcotics Gang Unit responsible for conducting surveillance operations in known open air drug markets in Camden City.  (1T5-1 to 12).  Before that assignment, he was a patrol officer with duties such as traffic stops and calls for service.  (1T5-16 to 25).  He has received numerous specialized trainings including patrol concepts and drug recognition.  (1T6-7 to 18).  _____________________  1The State relies on defendant’s Table of Citations (Dbii), with the following addition:  “Db” refers to defendant’s appellate brief.  “Da” refers to defendant’s appendix.  On the evening November 1, 2022, around 8:18 p.m., [...] was assigned to the Narcotics Gang Unit conducting surveillance around Leonard Street between Federal and Westfield.
[brief] [...] testified that, when he came out of the bedroom, defendant said: "He's good.  We got time to hit the ATM" (16T102-20 to 22).  [...] took [...]'s cell phone when they left the house (16T107-19 to 21).  They left the house and took the Jeep to Clayton (16T103-25 to 16T105-21).  They parked the Jeep and [...] "got out and went and hit the ATM machine" to get the cash (16T105-22 to 25).  [...] took a handkerchief and defendant's mechanic gloves from the Jeep (16T106-10 to 16T107-2).  [...] identified himself as the person in the bank surveillance video at the ATM machine (16T115-22 to 16T116-4).  He withdrew $500, which was the maximum he could get, and then he returned to where defendant remained parked with the Jeep (16T107-5 to 25).  [...] said he "probably threw" the black and yellow mechanic's gloves "in the center console" or "on the dashboard" when he left the ATM (16T116-14 to 25).  Defendant threw the phone out of the car window as they left Clayton (16T115-3 to 6).  [...] said they did not have any plan to hurt or injure [...] (16T142-21 to 16T143-1).  He believed that [...] would free himself (16T146-6 to 12).  They went to a Wawa in Glassboro, and then to Philadelphia to get drugs, when the drug dealer in Camden did not pick up the phone (16T109-3 to 16T110-6).  Defendant dropped [...] off at approximately 3:00 a.m. in Lake Garrison (16T112-10 to 16T113-22).