On May 30, 2018 a
Order
was filed
involving a dispute between
Pennrose Llc,
and
Andre Oliveriera,
Annette L Smith,
Aparecida S Coutinho,
Apc Associates Llc,
Carl Muller,
Carol L Radomski,
Carol Muller,
Chakrya K Molinoff,
Charles Furlong,
Christine E Herb,
Christine Greatrex,
Daniel Hanks,
Daryl F Tonia,
David Hercock,
Diane Speer,
Diego Castellanos,
Doris G Blyler,
Edward Mulka,
Elizabeth Falco,
Erika Gore,
Eugene M Flacche,
Eva Hanks,
George C Greatrex Jr,
George Freudenberg,
Giovanna Ferriera,
Hoover Quintero Garcia,
Hui Y Shih,
James E Weist,
Jeffrey B Canfield,
Jeffrey D Herb,
Jeffrey L Molinoff,
Joanne K Welch,
John M Pfrommer,
John S Radomski,
Jose A Coutinho,
Joseph Cavalieri,
Karen Woznica,
Katherine O Schimmel,
Keenan Builders Llc,
Lee H Schimmel,
Margo Furlong,
Marie E Kern,
Ming T Shih,
Muir A Mcmath,
Paulette Smith,
Rebecca Castellanos,
Recon Investment Group Llc,
Richard J Smith,
Robert Gore,
Robert Woznica,
Ronnie M Tarchichi,
Roseanne M Canfield,
Russell Smith,
Scott G Kern,
Sigmund Tonia,
Susan M Stevens,
Syeda F Ahmed,
Syed M Ahmed,
Theodore J Speer Jr,
Thomas B Mitchell,
Umur Selek,
Vito Brasile,
Warren G Blyler,
Wongsduan Mulka,
for Mt. Laurel
in the District Court of Burlington County.
Preview
BUR L 001147-18 08/30/2019 Pglof5 Trans ID: LCV20191561592
Filed with the Court
AUG 8.0 2019
PREPARED BY THE COURT.
Paula T. Dow, P.J.Ch,
PENNROSE, LLC, SUPERIOR COURT OF NEW JERSEY
BURLINGTON COUNTY
Plaintiff, LAW DIVISION
vs.
DOCKET No: BUR-L-001147-18
APC ASSOCIATES, et al.,
CIVIL ACTION
Defendants
ORDER
THIS MATTER, having been presented to the court by Russell Smith, appearing pro se; and
by Kevin E. Aberant, Esq. for Moorestown Township; and the court having considered the papers;
and having entertained oral argument; for good cause shown:
IT IS, this IO day of August, 2019, ORDERED THAT:
1 The motion of Russell Smith to strike testimony of Moorestown Township in the hearing
on August 2, 2019 on Russell Smith’s motion to join-Moorestown as a necessary party is
———
DENIED.
a om
etoP
ai LL
ae ae
ee
Paula T. Dow, P.J.Ch.
BUR L 001147-18 08/30/2019 Pg2of5 Trans ID: LCV20191561592
Filed with the Court
AUG 3.0 2019
PREPARED BY THE COURT ParlaT_+ Dow
tIOW, -P.
# J.C.
rena
PENNROSE, LLC, SUPERIOR COURT OF NEW JERSEY
BURLINGTON COUNTY
Plaintiff, LAW DIVISION
YS.
DOCKET No: BUR-L-001147-18
APC ASSOCIATES, et al.,
CIVIL ACTION
Defendants.
STATEMENT OF REASONS
COUNSEL:
Russell Smith, appearing pro se
Kevin E, Aberant, Esq. of Taenzer, Ettenson & Aberant, P.C.
Attorneys for Respondent Moorestown Township
REQUESTED RELIEF:
Pending before the court, by way of motion, is the request of Russell Smith to strike the
testimony of Moorestown Township. For the reasons stated below, the court will DENY the
request to strike testimony.
FACTS:
This motion is connected to a hearing in a previous motion, also filed by Russell Smith
(Mr, Smith”) that was heard by the court on August 2, 2019. In that motion, Mr. Smith asked
that the court join Moorestown Township (“Moorestown”) to this action as a necessary party
pursuant to R, 4:28-1 and convert this matter to a condemnation proceeding. The court heard oral
arguments on that motion, at which Kevin Aberant, Esq. (“Mr. Aberant”) appeared on behalf of
Moorestown, Mr. Smith patticipated by phone. On August 2, 2019, the court denied Mr. Smith’s
motion in an oral ruling delivered by the Hon. Paula T. Dow. Subsequently, the court confirmed
its ruling in a Statement of Reasons and accompanying Order dated August 23, 2019.
BUR L 001147-18 08/30/2019 Pg3of5 Trans ID: LCV20191561592
On August 13, 2019, Mr. Smith filed the present motion. Mr. Smith argues that
Moorestown did not have authority or standing to testify on behalf of the Planning Board of the
Township of Moorestown (“Planning Board”) at the August 2, 2019 hearing. Smith Br. in Supp.
of Mot. at 1. Mr. Smith states that during the course of the hearing, Mr. Aberant “testified that
Moorestown plans to update the Master Plan and remove Pennrose Project.” Id. at 2. Mr. Smith
alleges that “[o}n August 8, 2019, Penrose filed an appeal of the Court’s approval of the amended
settlement agreement between Moorestown and FSHC to have the Pennrose project put back into
the settlement agreement and which would maintain the status of the Pennrose project being part
of Moorestown’s affordable housing plan.” Id.
Mr, Smith argues that N.J,S.A, 40:55D-28 requires that any changes to the Moorestown
Master Plan can only be approved by the Planning Board after a public hearing. Id. Mr. Smith
further argues that as municipal attorney, Mr. Aberant “does not have authority to represent the
Planning Board, approve changes to the Master Plan, or speak on behalf of the Planning Board.”
Id. Mr, Smith states that a different attorney, Peter Thorndike, represents the Planning Board. Id,
Mr, Smith states that “[aJny claims about what the Planning Board may do in the future is
speculation and hearsay.” Id.
On August 21, 2019, Moorestown submitted its opposition to Mr. Smith’s motion.
Moorestown argues that “[a]s was made clear from the exhibits submitted in opposition to the
joinder motion, the property at issue in this litigation is no longer included in the Township’s
settlement agreement.” Moorestown Br. in Opp’n to Mot, at 1, Moorestown argues that “[t]he
inquiry as to the Township’s interest in this property, and the need for the Township to be joined
as a necessary party to this litigation, should end there.” Id. Moorestown claims that any argument
as to whether Mr. Aberant
Dg 6 testimony”
8 should be stricken is irrelevant to the issue presented in
BUR L 001147-18 08/30/2019 Pg4of5 Trans ID: LCV20191561592
Mr, Smith’s earlier motion. Id. Moorestown denies that Mr. Aberant was testifying on behalf of
the Planning Board, and states that he “was explaining, on behalf of the Township, the expected
future action that [he] anticipates] will be taken.” Id, Moorestown argues that even if the court
were to strike Mr. Aberant’s statements from the record, it would in no way alter the underlying
factual basis for denial of Mr. Smith’s previous motion.
On August 27, 2019, Mr. Smith filed his Reply to Moorestown’s Township’s Opposition
for Motion to Strike Testimony.' Mr. Smith argues that “[ajt oral arguments, Moorestown
admitted the Pennrose Project was not actually removed from the Master Plan but that Moorestown
plans to remove the Pennrose project from the Master Plan in the future.” Smith Reply Br. at 2.
Mr. Smith argues that “[t]his was a new issue introduced by Moorestown at oral arguments and
not found in the written pleadings which caused this motion to be filed.” Id. Mr. Smith reiterates
that “the testimony of Moorestown that the Pennrose project would be removed from the Master
Plan should be stricken and not considered part of the defense to the Smith motion.
LEGAL ANALYSIS:
R, 1:7-2 provides the procedural requirements for preserving a claim of error:
For the purpose of reserving questions for review or appeal relating to rulings or
orders of the court or instructions to the jury, a party, at the time the ruling or order
is made or sought, shall make known to the court specifically the action which the
party desires the court to take or the party’s objection to the action taken and the
grounds therefor. Except as otherwise provided by R. 1:7-5 and R. 2:10-2 (plain
error), no party may urge as error any portion of the charge to the jury or omissions
therefrom unless objections are made thereto before the jury retires to consider its
verdict, but opportunity shall be given to make the objection in open court, in the
absence of the jury. A party shall only be prejudiced by the absence of an objection
if there was an opportunity to object to a ruling, order or charge.
' Attached to Mr, Smith’s reply is a separate “Correspondence” containing requests for reconsideration of the court’s
Mr.
August 2, 2019 oral ruling on his motion to join Moorestown and related reliefs. These reliefs were not part of
Smith’s motion to strike and are not properly before the court. They are not discussed in this Statement of Reasons.
BUR L 001147-18 08/30/2019 Pg5of5 Trans ID: LCV20191561592
Mr, Smith did not raise his objection to what he argues was Mr. Aberant’s testimony at the
August 2, 2019 hearing, and therefore the court considers any objection to the admissibility of
such testimony to have been waived. Furthermore, the court does not find that Mr. Aberant’s
statements regarding the intentions of Moorestown Township with respect to its affordable housing
obligations were in violation of any law or were intproper.
In addition, the court is not persuaded that the arguments of counsel at oral argument on a
procedural motion can be considered testimony at all. Mr, Aberant’s statements at the August 2,
2019 hearing were based on, and independently supported by, documentation submitted to the
court in connection with the motion.
Accordingly, the court will DENY Defendant Russell Smith’s motion to strike portions of
the record of the August 2, 2019 hearing on Defendant Russell Smith’s motion to join Moorestown
as a necessary patty.
owen teen,
sewn coe
cS anennrenn Tyler
a
seen
Paula T. Dow, P.J.Ch.
Dated: August 30, 2019
Preview
BUR L 001147-18 08/30/2019 Pglof5 Trans ID: LCV20191561592 Filed with the Court AUG 8.0 2019 PREPARED BY THE COURT. Paula T. Dow, P.J.Ch, PENNROSE, LLC, SUPERIOR COURT OF NEW JERSEY BURLINGTON COUNTY Plaintiff, LAW DIVISION vs. DOCKET No: BUR-L-001147-18 APC ASSOCIATES, et al., CIVIL ACTION Defendants ORDER THIS MATTER, having been presented to the court by Russell Smith, appearing pro se; and by Kevin E. Aberant, Esq. for Moorestown Township; and the court having considered the papers; and having entertained oral argument; for good cause shown: IT IS, this IO day of August, 2019, ORDERED THAT: 1 The motion of Russell Smith to strike testimony of Moorestown Township in the hearing on August 2, 2019 on Russell Smith’s motion to join-Moorestown as a necessary party is ——— DENIED. a om etoP ai LL ae ae ee Paula T. Dow, P.J.Ch. BUR L 001147-18 08/30/2019 Pg2of5 Trans ID: LCV20191561592 Filed with the Court AUG 3.0 2019 PREPARED BY THE COURT ParlaT_+ Dow tIOW, -P. # J.C. rena PENNROSE, LLC, SUPERIOR COURT OF NEW JERSEY BURLINGTON COUNTY Plaintiff, LAW DIVISION YS. DOCKET No: BUR-L-001147-18 APC ASSOCIATES, et al., CIVIL ACTION Defendants. STATEMENT OF REASONS COUNSEL: Russell Smith, appearing pro se Kevin E, Aberant, Esq. of Taenzer, Ettenson & Aberant, P.C. Attorneys for Respondent Moorestown Township REQUESTED RELIEF: Pending before the court, by way of motion, is the request of Russell Smith to strike the testimony of Moorestown Township. For the reasons stated below, the court will DENY the request to strike testimony. FACTS: This motion is connected to a hearing in a previous motion, also filed by Russell Smith (Mr, Smith”) that was heard by the court on August 2, 2019. In that motion, Mr. Smith asked that the court join Moorestown Township (“Moorestown”) to this action as a necessary party pursuant to R, 4:28-1 and convert this matter to a condemnation proceeding. The court heard oral arguments on that motion, at which Kevin Aberant, Esq. (“Mr. Aberant”) appeared on behalf of Moorestown, Mr. Smith patticipated by phone. On August 2, 2019, the court denied Mr. Smith’s motion in an oral ruling delivered by the Hon. Paula T. Dow. Subsequently, the court confirmed its ruling in a Statement of Reasons and accompanying Order dated August 23, 2019. BUR L 001147-18 08/30/2019 Pg3of5 Trans ID: LCV20191561592 On August 13, 2019, Mr. Smith filed the present motion. Mr. Smith argues that Moorestown did not have authority or standing to testify on behalf of the Planning Board of the Township of Moorestown (“Planning Board”) at the August 2, 2019 hearing. Smith Br. in Supp. of Mot. at 1. Mr. Smith states that during the course of the hearing, Mr. Aberant “testified that Moorestown plans to update the Master Plan and remove Pennrose Project.” Id. at 2. Mr. Smith alleges that “[o}n August 8, 2019, Penrose filed an appeal of the Court’s approval of the amended settlement agreement between Moorestown and FSHC to have the Pennrose project put back into the settlement agreement and which would maintain the status of the Pennrose project being part of Moorestown’s affordable housing plan.” Id. Mr, Smith argues that N.J,S.A, 40:55D-28 requires that any changes to the Moorestown Master Plan can only be approved by the Planning Board after a public hearing. Id. Mr. Smith further argues that as municipal attorney, Mr. Aberant “does not have authority to represent the Planning Board, approve changes to the Master Plan, or speak on behalf of the Planning Board.” Id. Mr, Smith states that a different attorney, Peter Thorndike, represents the Planning Board. Id, Mr, Smith states that “[aJny claims about what the Planning Board may do in the future is speculation and hearsay.” Id. On August 21, 2019, Moorestown submitted its opposition to Mr. Smith’s motion. Moorestown argues that “[a]s was made clear from the exhibits submitted in opposition to the joinder motion, the property at issue in this litigation is no longer included in the Township’s settlement agreement.” Moorestown Br. in Opp’n to Mot, at 1, Moorestown argues that “[t]he inquiry as to the Township’s interest in this property, and the need for the Township to be joined as a necessary party to this litigation, should end there.” Id. Moorestown claims that any argument as to whether Mr. Aberant Dg 6 testimony” 8 should be stricken is irrelevant to the issue presented in BUR L 001147-18 08/30/2019 Pg4of5 Trans ID: LCV20191561592 Mr, Smith’s earlier motion. Id. Moorestown denies that Mr. Aberant was testifying on behalf of the Planning Board, and states that he “was explaining, on behalf of the Township, the expected future action that [he] anticipates] will be taken.” Id, Moorestown argues that even if the court were to strike Mr. Aberant’s statements from the record, it would in no way alter the underlying factual basis for denial of Mr. Smith’s previous motion. On August 27, 2019, Mr. Smith filed his Reply to Moorestown’s Township’s Opposition for Motion to Strike Testimony.' Mr. Smith argues that “[ajt oral arguments, Moorestown admitted the Pennrose Project was not actually removed from the Master Plan but that Moorestown plans to remove the Pennrose project from the Master Plan in the future.” Smith Reply Br. at 2. Mr. Smith argues that “[t]his was a new issue introduced by Moorestown at oral arguments and not found in the written pleadings which caused this motion to be filed.” Id. Mr. Smith reiterates that “the testimony of Moorestown that the Pennrose project would be removed from the Master Plan should be stricken and not considered part of the defense to the Smith motion. LEGAL ANALYSIS: R, 1:7-2 provides the procedural requirements for preserving a claim of error: For the purpose of reserving questions for review or appeal relating to rulings or orders of the court or instructions to the jury, a party, at the time the ruling or order is made or sought, shall make known to the court specifically the action which the party desires the court to take or the party’s objection to the action taken and the grounds therefor. Except as otherwise provided by R. 1:7-5 and R. 2:10-2 (plain error), no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict, but opportunity shall be given to make the objection in open court, in the absence of the jury. A party shall only be prejudiced by the absence of an objection if there was an opportunity to object to a ruling, order or charge. ' Attached to Mr, Smith’s reply is a separate “Correspondence” containing requests for reconsideration of the court’s Mr. August 2, 2019 oral ruling on his motion to join Moorestown and related reliefs. These reliefs were not part of Smith’s motion to strike and are not properly before the court. They are not discussed in this Statement of Reasons. BUR L 001147-18 08/30/2019 Pg5of5 Trans ID: LCV20191561592 Mr, Smith did not raise his objection to what he argues was Mr. Aberant’s testimony at the August 2, 2019 hearing, and therefore the court considers any objection to the admissibility of such testimony to have been waived. Furthermore, the court does not find that Mr. Aberant’s statements regarding the intentions of Moorestown Township with respect to its affordable housing obligations were in violation of any law or were intproper. In addition, the court is not persuaded that the arguments of counsel at oral argument on a procedural motion can be considered testimony at all. Mr, Aberant’s statements at the August 2, 2019 hearing were based on, and independently supported by, documentation submitted to the court in connection with the motion. Accordingly, the court will DENY Defendant Russell Smith’s motion to strike portions of the record of the August 2, 2019 hearing on Defendant Russell Smith’s motion to join Moorestown as a necessary patty. owen teen, sewn coe cS anennrenn Tyler a seen Paula T. Dow, P.J.Ch. Dated: August 30, 2019