Opinion
DOCKET NO. A-5199-14T2
11-29-2016
FRANK CRAIG, Plaintiff-Appellant, v. WOOLWICH TOWNSHIP and MS. JANE DIBELLA, Township Administrator, Defendants-Respondents.
Frank Craig, appellant, argued the cause pro se. Mark B. Shoemaker argued the cause for respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Lihotz and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1561-14. Frank Craig, appellant, argued the cause pro se. Mark B. Shoemaker argued the cause for respondents. PER CURIAM
Plaintiff Frank Craig posted a letter of credit as a performance guarantee for improvements designated in his three- lot division, as approved by the Planning Board of defendants, Woolwich Township and its Township Administrator (collectively the Township). After constructing one home, plaintiff lost title to the development to the foreclosing lender. He requested release of the performance bond, maintaining he completed all improvements. The Township refused, asserting the required length of a sidewalk fronting the development along Woodstown Road was incomplete.
Plaintiff filed his complaint in lieu of prerogative writs to challenge the Township's refusal to extinguish the remaining performance guarantee. He urges the sidewalk required by the Township engineer needed to travel between the three approved lots was fully installed and notes he no longer has legal authority to enter the property to install additional improvements. Further, the Township has not called the bond to undertake the improvements itself, and its change of position to now insist an additional length of walkway through a densely wooded area is arbitrary, unnecessary and amounts to a "sidewalk to nowhere." Alternatively, plaintiff suggested if the Township requires additional improvements on the site, a bond should be sought from the current owner, as a successor developer.
Following a hearing, the judge issued an oral opinion on May 13, 2015. After weighing the evidence, he concluded the subdivision plan required the sidewalk to extend along the entire frontage of Woodstown Road as marked in plaintiff's original survey, which was not completed. Noting the Municipal Land Use Law protects the Township's ability to complete a project when a developer fails to do so, the judge rejected plaintiff's arguments and dismissed his complaint with prejudice. He subsequently denied plaintiff's motion for reconsideration.
On appeal, plaintiff seeks reversal. He argues the judge erroneously made factual findings not supported by the evidence of record.
Following our review, we conclude plaintiff's proofs show the required sidewalk improvement, as identified by the Township in 2009, was completed. Moreover, the Township failed to substantiate its position that the 2009 report was in error, making reliance on a 2014 report from a different engineer, which significantly differs from the 2009 report, arbitrary and unreasonable. We reverse.
I.
The facts are taken from the hearing record, based on the parties' submissions and plaintiff's testimony. No testimony was presented by the Township, which also clarified it no longer retained all documents related to the development.
In June 2005, plaintiff submitted a proposed minor subdivision of a more than seven-acre parcel, to be developed into three residential single-family homes, each sitting on approximately two acres. On December 6, 2005, the Township Planner identified a sidewalk was required by the local zoning ordinance; however, plaintiff's plan as submitted failed to conform to this requirement, necessitating a waiver. Correspondence to the Township Planning Board from its engineers recommended revision of the proposed development plans, stating, among other provisions: "We recommend curb and sidewalk along Woodstown Road, conditioned on County approval. Associated details must be provided."
The Township selected small portions of the Planning Board hearing that discussed the need for a sidewalk. The Township Planner noted "we do recommend that a path system be put in to join the lots together. Even if it is a sidewalk to nowhere . . . there is a need to connect these three residential lots so that the property owners . . . don't have to go onto . . . the public street."
The Township Planning Board adopted Resolution No. 2006-13, as memorialized on January 19, 2006, granting plaintiff's application for minor subdivision approval. The resolution findings included a recital of plaintiff's testimony stating "he will provide a sidewalk along Woodstown Road and will grant access easements to the Township for use of the sidewalk." The resolution stated:
NOW, THEREFORE, BE IT RESOLVED by all members of the Planning Board voting for the action taken by the Board, after considering the Township development regulations, the application and plans, and considering all the testimony and evidence presented at the hearing and based upon the findings of fact and conclusions of law; that application of Frank J. Craig for minor subdivision approval . . . is hereby granted by a vote of seven in favor and one opposed . . . subject to the following conditions:
4. The Applicant will install sidewalks along the frontage of the property on Woodstown Road and submit the location of the sidewalks to the Planning Board Engineer and Planning Board Traffic and Environmental Consultant for their advanced review and approval.
. . . .
8. The Applicant will grant easements to the Township for use of the sidewalks by the public for pedestrian circulation and travel.
The Township engineers reviewed plaintiff's revised submission, filed on September 27, 2006, and noted "the plan indicates a proposed four (4) foot wide concrete sidewalk." Subsequent revisions of the proposed development plans contained a reference to the sidewalk along Woodstown Road. The record contains plaintiff's December 21, 2006 Development Plan, which also identifies a "proposed four (4') foot wide concrete sidewalk" along the development's Woodstown Road frontage. The frontage of the lots along Woodstown Road total 693.68 linear feet. Subsequently, the Township Planner informed the Township Board on April 20, 2007: "in accordance with the resolution (2006-13), the applicant must provide a sidewalk easement for public use[,]" requiring the plans be revised.
Two lots have a 185-foot frontage and the third has a frontage of 323.68 feet.
The Planner's report also includes what is entitled a "Tree Protection Management Plan," which identifies a Township ordinance prohibiting removal of trees and suggests trees may not be removed from the western portion of the property site unless certain conditions are met.
On July 19, 2007, the Planning Board memorialized corrective Resolution No. 2007-25, to "reflect that this subdivision [wa]s a major subdivision, not a minor subdivision." Conditions four and eight matched verbatim those contained in Resolution 2006-13.
The final survey, as approved, was signed and sealed by the Planning Board Chair and Secretary, the Township Engineer and, finally, the Municipal Clerk on December 7, 2007. The plan, showing the subdivision plan of lots, contained a sidewalk related notation, which differed from the December 21, 2006 Development Plan. This plan identified only a "10' pedestrian/sidewalk easement along the entire length of the property," spanning the same linear footage along Woodstown Road as the initial plan.
On December 28, 2009, in response to plaintiff's request to reduce the amount of the $25,380 performance bond, the Township's engineers, Federici & Akin, P.A., inspected the development and reported on items needing completion. The report recommended the bond be reduced to $6,768, in conformance with the incomplete items, as delineated in the engineer's accompanying report. Relevant to this appeal is this notation regarding the walkway: "290 SF 4" Thick Concrete Sidewalk" found "51%" completed, and noting completion required an additional expenditure of $574 based on a unit cost at $4 per square foot. The Township adopted Resolution No. 2009-284 on December 28, 2009, reducing plaintiff's performance bond to $6,768 as recommended.
The Township asserted the bond was reduced by seventy percent; however, $6,768 is not thirty percent of the original bond of $25,380.
Plaintiff was the only testifying witness at the hearing. He explained the required approximately seventy linear feet of sidewalk identified in the December 28, 2009 Federici & Akin, P.A. engineering inspection report was completed. Further, plaintiff noted the end-point for completion was determined because of the heavily wooded area along Woodstown Road on the northwestern-most lot. He explained the sidewalk ended at this point to preserve the trees as required by Resolution 2007-25, which mandated retention of vegetation on Woodstown Road and to not "unnecessarily cut down any of the trees." He also identified other obstructions, such as a small creek, made it impractical to continue the walkway.
Plaintiff's interest in the realty was foreclosed by Parke Bank during the downturn in the economy and constriction of housing sales. He had built only one home, located on the middle of the three lots. Plaintiff understood the bank subsequently sold the realty to an owner, who was not building on the other lots.
In a series of emails between Parke Bank and the Township Clerk, the bank inquired about replacing plaintiff's performance bond and sought information on any outstanding performance that was necessary. The Township sought an inspection report from its then engineers.
Following inspection, a new Township engineering firm reported to the Township Administrator the "sidewalk was not completed . . . in accordance with the approved subdivision plans." Its report varied significantly from Federici & Akin, P.A.'s 2009 report, as it stated approximately 1,520 square feet of concrete sidewalk was uncompleted, with an estimated cost of completion of $14,592. Based on this report, the Township declined plaintiff's request to release the performance bond, insisting required improvements were incomplete.
The report stated the unit price was eight dollars per square foot.
Following a hearing, the trial judge acknowledged the inability to reconcile the Federici & Akin, P.A. report with the Township's current engineering report. He also found, based on the survey, he could not compute the completed square footage of the walkway. Nevertheless, he concluded both reports informed plaintiff the sidewalk improvements were incomplete, allowing the Township to retain the performance bond. Plaintiff appealed.
II.
A.
"The scope of appellate review of a trial court's fact-finding function is limited" because "factual findings of a trial judge sitting without a jury are 'considered binding on appeal when supported by adequate, substantial and credible evidence.'" Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). 539 Absecon Blvd., L.L.C. v. Shan Enters. Ltd. P'ship, 406 N.J. Super. 242, 272 (App. Div. 2009), certif. denied, 199 N.J. 541 (2009) (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974)).
On the other hand, challenges to legal conclusions as well as a trial judge's interpretation of the law are subject to our de novo review. Estate of Hanges v. Metro Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010); Finderne Mgmt. Co., Inc. v. Barrett, 402 N.J. Super. 546, 573 (App. Div. 2008), certif. denied, 199 N.J. 542 (2009).
B.
Challenges to municipal actions are governed by Rules 4:69-1 to -7, which allow an aggrieved party to file an action in lieu of prerogative writs. R. 4:69-1. A "decision of the planning board or the zoning board is tested against an indulgent standard, which permits the court to overturn the decision being reviewed only if it is arbitrary, capricious or unreasonable." Kane Props., LLC v. City of Hoboken, 214 N.J. 199, 225 (2013). "Moreover, in that forum, the decision of the board is entitled to deference; its factual determinations are presumed to be valid." Ibid. (citing Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)).
This matter originated with the Township's Planning Board, which exercises powers described in the Municipal Land Use Law (MLUL), pursuant to N.J.S.A. 40:55D-25. The Board chose to retain a portion of the performance guarantee, to ensure complete performance of the conditions to which plaintiff's development application was granted, to which plaintiff posted using an irrevocable letter of credit. N.J.S.A. 40:55D-53.5. See also K. Woodmere Assoc., L.P. & Kaplan at Toms River, Inc. v. Menk Corp., 316 N.J. Super 306, 318 (App. Div. 1998). The MLUL permits planning boards to require a performance guarantee from development applicants
in favor of the municipality in an amount not to exceed 120% of the cost of installation, which cost shall be determined by the municipal engineer according to the method of calculation set forth in . . . ([N.J.S.A.] 40:55D-53.4), for improvements which the approving authority may deem necessary or appropriate including: streets, grading, pavement, gutters, curbs, sidewalks, street lighting, shade trees, surveyor's monuments, as shown on the final map and required by 'the map filing law,' . . . ([N. J.S.A.] 46:23-9.9 et seq.), water mains, culverts, storm sewers, sanitary sewers or other means of sewage disposal, drainage structures, erosion control and sedimentation control devices, public improvements of open space and, in the case of site plans only, other on-site improvements and landscaping.
The municipal engineer shall prepare an itemized cost estimate of the improvements covered by the performance guarantee, which itemized cost estimate shall be appended to each performance guarantee posted by the obligor.
[ N. J.S.A. 40:55D-53(a)(1).]
When required improvements are completed or substantially completed, a developer may request release of the surety. N.J.S.A. 40:55D-53(d). At that time, the municipal engineer inspects the development and reviews all uncompleted or unsatisfactory completed improvements providing an itemized cost estimate to the governing body with a recommendation. N.J.S.A. 40:55D-53(d)(1).
The list prepared by the municipal engineer shall state, in detail, with respect to each improvement determined to be incomplete or unsatisfactory, the nature and extent of the incompleteness of each incomplete improvement or the nature and extent of, and remedy for, the unsatisfactory state of each completed improvement determined to be unsatisfactory. The report prepared by the municipal engineer shall identify each improvement determined to be complete and satisfactory together with a recommendation as to the amount of reduction to be made in the performance guarantee relating to the completed and satisfactory improvement, in accordance with the itemized cost estimate prepared by the municipal engineer and appended to the performance guarantee pursuant . . . this section.
[N. J.S.A. 40:55D-53(d)(2).]
The Planning Board determines completed and needed improvements "in accordance with the itemized cost estimate prepared by the municipal engineer." N.J.S.A. 40:55D-53(d). Subparagraph (e) provides for the release of the performance bond, providing in pertinent part:
Upon adoption of the resolution by the governing body, the obligor shall be released from all liability pursuant to its performance guarantee, with respect to those approved improvements, except for that portion adequately sufficient to secure completion or correction of the improvements not yet approved; provided that 30% of the amount of the total performance guarantee posted may be retained to ensure completion and acceptability of all improvements.
For the purpose of releasing the obligor from liability pursuant to its performance guarantee, the amount of the performance
guarantee attributable to each approved improvement shall be reduced by the total amount for each such improvement, in accordance with the itemized cost estimate prepared by the municipal engineer and appended to the performance guarantee pursuant to subsection a. of this section, including any contingency factor applied to the cost of installation. If the sum of the approved improvements would exceed 70 percent of the total amount of the performance guarantee, then the municipality may retain 30 percent of the amount of the total performance guarantee to ensure completion and acceptability of all improvements, as provided above.Finally, nothing in the statute "shall be construed to limit the right of the obligor to contest by legal proceedings any determination of the governing body or the municipal engineer." N.J.S.A. 40:55D-53(g).
[N. J.S.A. 40:55D-53(e)(1).]
III.
In challenging the trial judge's order dismissing his complaint, plaintiff suggests the judge substituted his judgment for that of the Township Planning Board, by finding the sidewalk must be installed across the entire frontage of Woodstown Road. Plaintiff suggests the final approved development plan contained only an easement, not a sidewalk across the entire 693.68 feet of Woodstown Road frontage. He insists his view is supported by the 2009 Federici & Akin, P.A. report itemizing a required 291 square footage of sidewalk.
None of the professional reports or the adopted resolutions state the required length of the sidewalk. Contrary to the judge's finding, there is no support showing the walkway must extend the entire length of the Woodstown Road frontage. Rather, each resolution repeats a need to install sidewalks "along Woodstown Road" and allows the applicant to "identify the location of the sidewalks to the Planning Board Engineer and Planning Board Traffic and Environmental Consultant for their advanced review and approval." (Emphasis added). Plaintiff maintains the final plans, as approved, contained an easement across the Woodstown Road frontage but the sidewalk permissibly ended at the wooded area to preserve the trees, as supported by the 2009 engineering report requiring merely 291 square feet of sidewalk.
We agree with the trial judge that 291 square feet, which is not quite seventy-three linear feet, appears to be an error; however, in light of other testimony and evidence, we cannot agree the record supported the judge's finding the sidewalk was required to span the entirety of Woodstown Road. First, the approved plans and final resolution do not contain such a requirement and appear to leave the final determination to the Township Planner and Engineer. Second, plaintiff pointed out the requirements of the resolution to preserve the trees, suggesting the sidewalk stopped at the woods line, were not weighed by the trial judge. Third, the comments by the Township Planner at the initial Planning Board meeting suggest the purpose of the sidewalk was to assure a walkway between the three lots to avoid the alternative of walking in the street. The sidewalk shown on the plan at the hearing appears to accomplish that purpose, which may support plaintiff's testimony the end-point at the woods line was accepted.
The Township's reliance on the current engineer is not persuasive. The new engineers' letter did not mention consideration or even review of engineering determinations made in 2006 or 2009. There is no explanation offered for what, standing alone, is an arbitrary change in a previously recited position. The presumption of validity afforded a Planning Board determination is not unbridled.
As we noted, the trial judge spends a significant portion of his opinion explaining how the math on the 2009 report simply does not add up given the length of the Woodstown Road frontage of the three lots. However, no evidence adequately explains the difference between figures contained in the 2009 report or those in the 2014 report. For example, 693 linear feet would require 2,772 square feet of sidewalk. It was undisputed the walkway was installed the length of the two lots having a 185-linear-foot frontage (1,480 square feet), as well as a portion of the third lot containing the woods. Plaintiff's brief asserts he installed more than 400 linear feet of walkway, which is 1,600 square feet. Using this figure, it is impossible to reach the newly claimed need to pave 1,520 square feet. Thus, the 2014 report appears equally inaccurate. --------
In other contexts we have noted that "government has an overriding obligation to deal forthrightly and fairly with property owners," F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 426 (1985), and
have insisted that "government must 'turn square corners' rather than exploit litigational or bargaining advantages. . . ." W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 561 (1989) (quoting F.M.C. Stores Co., supra, 100 N.J. at 426).
[Univ. Cottage Club of Princeton N.J. Corp. v. N.J. Dept. of Envir. Prot., 191 N.J. 38, 57 (2007).]
From this record, we cannot discern support for the trial judge's findings the sidewalk was required to span the frontage of Woodstown Road or a required 1,520 square feet remained unpaved. Because plaintiff's testimony remains unrefuted, the use and reliance upon the 2014 Township engineering report and the concomitant municipal action in denying release was arbitrary and unreasonable. Kane Props., supra, 214 N.J. at 225.
Accordingly, we vacate the order dismissing plaintiff's complaint. We remand for entry of judgment for plaintiff, releasing his performance bond. N.J.S.A. 40:55D-53(d).
Reversed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION