DUMONT BOARD OF EDUCATION VS. BOROUGH OF DUMONTÂ (L-2099-16, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4309-15T3
DUMONT BOARD OF EDUCATION,
Plaintiff-Appellant,
v.
BOROUGH OF DUMONT,
Defendant-Respondent.
________________________________
Submitted September 28, 2017 – Decided October 11, 2017
Before Judges Simonelli, Haas and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
2099-16.
Plosia Cohen, LLC, attorneys for appellant
(James L. Plosia, Jr. and Jonathan F. Cohen,
of counsel and on the brief; Gordon N. Litwin
and Andrew J. Provence, on the briefs).
Gregg F. Paster & Associates, attorneys for
respondent (Gregg F. Paster, of counsel and
on the brief; Alfred A. Egenhofer, on the
brief).
PER CURIAM
Plaintiff Dumont Board of Education appeals from a May 24,
2016 Law Division order dismissing its complaint against defendant
Borough of Dumont seeking, among other things, the reversion of a
parcel of land (the Property) to the Board. We dismiss the appeal
as moot.
In 1962, the Board conveyed the Property to the Borough.
Pursuant to the parties' contract of sale, the Borough agreed to
use the Property, which included a schoolhouse, for a borough hall
and other allied "municipal purposes[.]" The contract also
contained a reverter clause that stated:
[I]n the event the Mayor and Council of the
Borough of Dumont shall, at some future date,
adopt a resolution declaring that it is no
longer in the public interest of the Borough
. . . to continue to use the premises in
question, then before the Mayor and Council
. . . shall have the legal right either to
sell or to transfer and convey the premises
in question to any third party, the . . .
Mayor and Council . . . shall first offer to
convey, transfer and give the premises in
question, together with all improvements which
may then be situated on said premises, to the
Board of Education . . . and said transfer and
conveyance to be made without any
consideration to be paid for same.
The Borough used the Property as a borough hall and to house
its police department until 2014, when the county health department
determined that the building was uninhabitable due to problems
with mold. Although the former schoolhouse had to be closed, the
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Borough brought trailers to the Property for police department
use.
During the period between 2014 and 2016, the Borough engaged
in settlement discussions with a builder that had commenced
litigation seeking to construct affordable housing in the
municipality. As a result of these negotiations, the Borough and
the builder began to consider using the Property as a site for at
least some of this housing.
In February 2016, the Borough adopted a resolution
designating the Property as "an 'area in need of redevelopment
pursuant' to the criteria contained in N.J.S.A. 40A:12A-6[.]" The
next month, the Borough passed a resolution approving a settlement
it had reached with the builder. Under the terms of the
settlement, the builder had the option to construct affordable
housing units on one of two separate locations. Under one option,
the builder would construct units on the Property as well as on a
nearby former farm. Under this option, the builder would also
construct new office space on the Property for municipal use.
Under the second option, the builder would build all of the units
on the site of the former farm and the Property would not be a
part of the project.
Upon learning of the settlement, the Board filed its
complaint, arguing that the settlement triggered the right of
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first refusal provision of the parties' 1962 agreement and the
Property should now revert to the Board. Following oral argument,
the trial judge rendered a detailed written decision dismissing
the Board's complaint.
The judge found that because the Borough would continue to
use the Property for municipal offices, and the affordable housing
on the site would also serve a municipal purpose, the reverter
provision of the 1962 agreement had not been triggered. The judge
also rejected the Board's argument that the redevelopment
designation for the Property was flawed and that the settlement
"violate[d] local redevelopment and housing law."
On June 10, 2016, the Board filed its notice of appeal. On
November 1, 2016, however, the Borough and the builder decided
that all of the affordable housing units would be constructed on
the site of the former farm, rather than on the Property. Thus,
the Borough is continuing to use the Property for its police
department and it has no current plans to sell, transfer, or convey
the Property to any other party.
With this development, the issues presented in this appeal
are now clearly moot. "A case is moot if the disputed issue has
been resolved, at least with respect to the parties who instituted
the litigation." Caput Mortuum, L.L.C. v. S&S Crown Servs., Ltd.,
366 N.J. Super. 323, 330 (App. Div. 2004). "[C]ontroversies which
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have become moot or academic prior to judicial resolution
ordinarily will be dismissed." Cinque v. N.J. Dep’t of Corr., 261
N.J. Super. 242, 243 (App. Div. 1993). Dismissal for mootness is
appropriate where "a judgment cannot grant effective relief, or
there is no concrete adversity of interest between the parties."
Caput Mortuum, supra, 366 N.J. Super. at 330. A court may consider
events that occur subsequent to the filing of an appeal in
determining that an appeal is moot. Ibid. (holding that the appeal
was moot after the court was advised at oral argument that the
controversy had been resolved subsequent to the filing of the
appeal).
Here, the Board's concern about the possible conveyance of
the property to the builder for the construction of affordable
housing has been resolved by the Borough and the builder's
agreement that the housing project will be limited to the site of
the former farm. Therefore, this appeal is now moot.
The Board asserts that "the over-arching issue in this appeal
is to determine what actions by [the Borough] trigger [the Board's]
reversionary rights" and, therefore, it asks that we issue an
advisory opinion delineating the parties' future rights and
responsibilities under the 1962 agreement. However, "[t]he notion
that a court of appeals willy-nilly can decide issues unnecessary
to the outcome of the case results in the wholesale issuance of
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advisory opinions, a practice our judicial decision-making system
categorically rejects." State v. Rose, 206 N.J. 141, 189 (2011).
We are not persuaded that this is a matter of significant public
importance warranting our determination of abstract legal issues
where there is no longer a controversy between the parties. See
Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996) (noting
that "[o]rdinarily, our interest in preserving judicial resources
dictates that we not attempt to resolve legal issues in the
abstract").
Dismissed.
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