Johnson v. Downe Tp. Combined Planning/Zoning Bd., 2012 WL 33897 (App. Div. Jan. 9, 2012). How many times has the Appellate Division warned that a purported appeal as of right from a decision that does not dispose of all issues as to all parties will be dismissed as interlocutory? In this case, the Appellate Division (Judges Baxter and Nugent) dismissed just such an improper appeal.
Plaintiff had filed suit seeking to block defendant Kathryn Weisenburg from appealing to the defendant Board a zoning permit that plaintiff had obtained that would have allowed him to place a modular home on his property. The Law Division determined that Weisenburg had standing to file an appeal to the Board and that she had filed that appeal timely. The Board had not made any decision on Weisenburg’s appeal. Nonetheless, plaintiff appealed the Law Division’s ruling to the Appellate Division.
The panel dismissed the appeal as interlocutory. After recapitulating some of the many cases that inveigh against piecemeal interlocutory appeals, the panel noted that, given the procedural posture of the case, “there will be several proceedings before both the Board and the Law Division between these parties” before any ultimate resolution could be reached. “Were we to decide the merits of the present interlocutory appeal, our decision would in no sense resolve the controversy between the parties, as both the Board and the Law Division will in the future be considering whether the granting of Weisenburg’s permit appeal was proper and whether a variance will be required.”
Apparently, there was no request for the panel to consider the appeal as a motion for leave to appeal. From the tenor of the opinion, it seems unlikely that the panel would have entertained such a request. Interlocutory decisions simply cannot be appealed as of right, and the Appellate Division has shown itself willing to dismiss such improper appeals out of hand.