Three Published Appellate Division Decisions Last Week

All was quiet on the Supreme Court front last week. But the Appellate Division issued three published opinions. Here are summaries.

Sackman Enterprises, Inc. v. Mayor & Council of Borough of Belmar, ___ N.J. Super. ___ (App. Div. 2024). This opinion by Judge Chase addressed three questions under a new section of the Municipal Land Use Law that had never been construed before. As Judge Chase summarized, those questions were “first, whether a governmental body, serving as a Redevelopment Agency, is obligated to apply electric vehicle (“EV”) parking credits, as required under N.J.S.A. 40:55D-66.20 (“the EV statute”), when determining a concept plan’s consistency with a redevelopment plan adopted pursuant to the Local Redevelopment and Housing Law (“LRHL”) (N.J.S.A. 40A:12A-1 to -89); second, under section (f) of the EV statute, when applying EV credits, how the credits are to be rounded up; and last, whether a rounded-up EV credit may reduce the total required parking by more than the ten percent limit set forth under section (e) of the EV statute.”

The case came to the Appellate Division after the Law Division, facing cross-motions for summary judgment, denied plaintiff’s motion and granted the Borough’s cross-motion. The Appellate Division affirmed that disposition, employing de novo review.

In addressing the first question, Judge Chase noted that “[t]he operative language in N.J.S.A. 40:55D-66.20(a) states, ‘[a]s a condition of preliminary site plan approval, for each application involving . . . a mixed use development,’ a developer or owner shall prepare at least fifteen percent of a development plan’s parking spaces as ‘Make-Ready,’ with at least one-third of those spaces including electric vehicle supply equipment” (emphasis by Judge Chase). The Borough contended that the language about preliminary site plan approval meant that a redeveloper like plaintiff could not apply the EV statute to its concept plan, which preceded preliminary site plan approval proceedings. The panel did not agree. “We interpret N.J.S.A. 40:55D-66.20(a)(1)’s ‘[a]s a condition of preliminary site plan approval . . . .’ to permit prospective redevelopers to apply the statute in order to reach the preliminary site plan approval stage. Otherwise, a plan that was consistent with a town’s redevelopment plan would then be changed at the preliminary site plan approval, and the original compliance would no longer stand. This would lead to an absurd result because the final
development would not match the redevelopment plan.”

On the issue of rounding up credits, Judge Chase observed that “N.J.S.A. 40:55D-66.20(f) states, ‘[a]ll parking space calculations for electric vehicle supply equipment and Make-Ready equipment pursuant to this section shall be rounded up to the next full parking space.'” Relying on that plain language, which does not provide for rounding down in any circumstances, the panel ruled that any calculation that results in a figure to the right of the decimal point must be rounded up, whether that figure is above or below .5. “While the Borough is relying on the mathematical practice of rounding a number down to the nearest whole number when a resulting decimal is anything less than 0.5, that is not what the plain meaning of the language in the EV statute provides.”

The Borough won the final issue, however. The rounding up of the EV credit parking calculation here would have resulted in a reduction of total parking spaces of more than 10% of the total. That would have contravened N.J.S.A. 40:55D-66.20(e), which limits reductions to 10%. Plaintiff argued that since the rounding up was required by the statute, as discussed above, a reduction of more than 10% was permissible. But the panel ruled that the more specific section (e), which contained the 10% limit, prevailed.

State v. Smith, ___ N.J. Super. ___ (App. Div. 2024). In this appeal, 36 defendants in a case involving charges of racketeering conspiracy, attempted murder, and other counts sought to disqualify the entire Monmouth County Prosecutor’s Office because the Monmouth County Prosecutor, Raymond Santiago, had represented one of them, defendant Smith, for seven months. During that time, Santiago had appeared at a detention hearing, filed two applications related to Smith’s detention, and received pretrial discovery. Santiago sought and was granted leave to withdraw from representing defendant due to disagreements between them.

Over a year later, Santiago became the County Prosecutor and was screened from this matter. Still, Smith sought to disqualify Santiago and his entire office. The Law Division denied that motion. On appeal, the Appellate Division applied de novo review and affirmed. Judge Gilson wrote a detailed opinion that described how the interplay of Rules of Professional Conduct 1.9, 1.10, and 1.11 called for that result.

Since this was a question of first impression in New Jersey, Judge Gilson canvassed cases from other jurisdictions. Some of those jurisdictions applied a per se rule of disqualification, but the majority “adopted a rule calling for disqualification of the entire office only when the prosecutor who formerly represented a defendant divulged confidential information to other prosecutors or participated in the prosecution of the defendant.” In the majority jurisdictions, if the prosecutor is “effectively screened from participation in the prosecution and does not divulge any confidential information,” disqualification is not required. The panel found the majority rule persuasive and, in the circumstances here, where Santiago had been screened and had not shared confidential information, declined to disqualify his entire office.

State v. Courtney, ___ N.J. Super. ___ (App. Div. 2024). This case involved the automobile exception to the warrant requirement for a search. As Judge Susswein said in his opinion for the Appellate Division, State v. Witt, 223 N.J. 409 (2015), prevents police from using the automobile exception once a vehicle has been towed away and impounded.

The “novel question” here was whether, in a case involving John’s Law, N.J.S.A. 39:4-50.22 and -50.23, which generally requires impoundment for at least twelve hours of a vehicle whose driver has been arrested for driving while intoxicated or refusing a breath test, police can search the vehicle before it is removed for impoundment. The Law Division found illegal the search conducted before the vehicle was removed and suppressed evidence found during that search.

The Appellate Division reversed. “So long as police satisfy the foundational requirements of probable cause, spontaneity, and unforeseeability, the authority to conduct an automobile-exception search lapses only after the vehicle has been removed to a secure location, not in anticipation of such removal. We decline defendants’ request to create a new bright-line rule making vehicles subject to John’s Law categorically ineligible for an on-scene search under the automobile exception.”

The panel ended its opinion by noting that “it is not our role as an intermediate appellate court to engraft upon Witt an exception that was not expressed in the Court’s detailed majority opinion.” That might be seen as an invitation to the Supreme Court to grant review if the defense seeks it, as the John’s Law issue appears to be a new one.