Opinion
DOCKET NO. A-1539-12T3
08-07-2014
MAJESTIC CONTRACTING, LLC, Plaintiff-Appellant, v. WILLIAM H. NUNZIATO and THE TOWNSHIP OF HOWELL, Defendants-Respondents.
Mehr LaFrance & Williams, attorneys for appellant (Mark Williams, on the briefs). Marriott Callahan & Blair, attorneys for respondent (James J. Kinneally, III, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Nugent, and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2541-08. Mehr LaFrance & Williams, attorneys for appellant (Mark Williams, on the briefs). Marriott Callahan & Blair, attorneys for respondent (James J. Kinneally, III, on the brief). PER CURIAM
Plaintiff Majestic Contracting, LLC (Majestic), appeals the Law Division's September 21, 2012 order determining that its basin-maintenance agreement with defendant Township of Howell is enforceable, except that the escrow requirement is limited to no more than fifteen percent of the costs of the project for a period not to exceed two years. It also appeals the October 26, 2012 order denying its motion for reconsideration. We affirm.
I.
We discern the following facts and procedural history from the record on appeal.
Majestic is a developer of residential properties. In 2005, Majestic applied to the Howell Township Planning Board (Board) for preliminary and final approval for the Evergreen Estates subdivision. The subdivision comprised eight building lots and one open-space lot containing a drainage basin. On November 3, 2005, the Board adopted a resolution granting preliminary and final major subdivision approval. On August 17, 2006, the Board approved Majestic's amended subdivision plan, which substituted a septic system for connection to the public sewer system.
On May 17, 2007, defendant William Nunziato, Jr., the township engineer, notified Majestic that it was required to sign a developer's agreement and a basin-maintenance agreement. The basin-maintenance agreement required an "escrow payment" of $224,000.85 to cover maintenance. The letter also required Majestic to prepare and submit five deeds, including dedication of the drainage-basin property, to the Township and related easements for approval and recording with the subdivision plat. Nunziato informed Majestic that he would not sign the subdivision plat map until the basin-maintenance agreement, developer's agreement, and deeds had been approved. Majestic refused to comply.
In May 2008, Majestic filed an action in lieu of prerogative writs, in which it alleged that, because the Board lacked authority to delegate such matters to Township officials, the requirements imposed by Nunziato and other officials were ultra vires and unenforceable. Majestic also alleged that certain municipal ordinances were invalid as ultra vires, preempted by State statutes, or contrary to the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136, particularly, N.J.S.A. 40:55D-2. Finally, Majestic alleged that Nunziato's conditions were also invalid because they were imposed after the Board had given final approval of its application. Following a five-day trial, the judge delivered an oral decision on October 15, 2009, in which he rejected Majestic's arguments. He entered an order of dismissal on October 27.
Majestic appealed. Among the several other issues raised on appeal, Majestic argued that the ordinance related to the basin-maintenance agreement was invalid and that the amount of the escrow payment required by the Township was improper. We affirmed the trial judge's decision as to matters unrelated to this appeal, but remanded to determine if Majestic was estopped from raising, or had waived, its arguments pertaining to the basin-maintenance agreement. Majestic Contracting, LLC v. Nunziato, No. A-1659-09 (App. Div. Nov. 18, 2011).
We held that the Township ordinance authorizing the escrow contribution, as well as the related provisions of the agreement, conflicted with the MLUL. Although N.J.S.A. 40:55D-53(a)(2), the controlling provision within the MLUL, authorized a municipality to require such agreements and escrow payments, it provided that they could not last longer than two years and that the escrow could not exceed fifteen percent of the improvement's cost. We determined that the ordinance at issue, Howell, N.J., Code § 188-27(D)(5)(h)(3)(c), although employing "escrow" language, in fact imposed an impermissible nonrefundable "contribution" to the municipality. Because there was no statutory basis for requiring a non-refundable "contribution," we held that those aspects of the municipal ordinance and the agreement were invalid. We also held that Nunziato had calculated the escrow payment based on maintenance costs over ten years, which was "beyond the two year[] [cap] contained in N.J.S.A. 40:55D-53(a)(2)."
We also noted that the $42,550 minimum required by the municipal ordinance could potentially exceed the fifteen percent statutory cap in some instances.
However, we could not determine from the record before us whether Majestic had waived its right to recover the excess escrow payment in light of its failure to exhaust the municipal appeals process and the fact that it had signed the basin-maintenance agreement during the pendency of litigation. The remand was to determine those issues, and also to consider whether Majestic's actions would warrant a finding of estoppel because it may have "foreclosed the Board from making a different decision on the issue of whether to accept dedication of the drainage basin."
In an August 30, 2012 written opinion, the trial judge concluded that Majestic did not waive its right to challenge the basin-maintenance agreement or the amount of contribution it required. He also determined that Majestic was not estopped from pursuing those challenges. The judge concluded the basin-maintenance agreement could be enforced to the extent that it did "not run afoul of N.J.S.A. 40:55D-53(a)(2)." Consequently, he held that Majestic could still be compelled to fund an escrow up to the fifteen percent cap permitted by the statute, as long as the amount was not calculated on maintenance beyond the two- year statutory limit. The judge subsequently entered an order embodying his decision on September 21, 2012.
Majestic moved for reconsideration as to the determination that the basin-maintenance agreement was not wholly invalid and that it could still be obligated to fund the escrow. On October 26, the judge denied reconsideration in an oral opinion. He entered an appropriate order the same day. This appeal followed.
II.
On appeal, Majestic argues that the trial judge exceeded the scope of our remand order by addressing the enforceability of the basin-maintenance agreement, which it contends we had invalidated in its entirety. Majestic maintains that our remand order limited the judge to deciding whether waiver or estoppel barred it from challenging the basin-maintenance agreement on the first appeal.
An "appellate judgment becomes the law of the case" and a court on remand "is under a preemptory duty not to depart from it." Lowenstein v. Newark Bd. of Educ., 35 N.J. 94, 116-17 (1961). The trial judge, however, must have the ability to implement the spirit of an appellate court's overall decision. See Bubis v. Kassin, 353 N.J. Super. 415, 428 (App. Div. 2002), rev'd on other grounds, 184 N.J. 612 (2005); see also Casey v. Planned Parenthood of Se. Pa., 14 F.3d 848, 857 (3d Cir. 1994).
In our first decision, we found that the Township's ordinance conflicted with N.J.S.A. 40:55D-53(a)(2) by requiring a non-refundable maintenance payment in excess of the two-year statutory period or the ceiling of fifteen percent, but we did not invalidate the entire ordinance. Instead, we were "satisfied that the ordinance [was] not ultra vires per se." Specifically, "we h[e]ld that a municipality cannot require by ordinance, and a planning board cannot impose as a condition of subdivision approval, a maintenance escrow in excess of the parameters set by N.J.S.A. 40:55D-53(a)(2) and embodied in N.J.A.C. 5:36-4.2." We did not hold that it was impermissible for the Township to require a maintenance escrow within those parameters. Consequently, the judge appropriately concluded that, as long as enforcement of the basin-maintenance agreement's escrow requirement is within the parameters of N.J.S.A. 40:55D-53(a)(2), it is otherwise valid. We find no error in the trial judge's decision.
Majestic raises for the first time the issue of whether it has already satisfied the escrow requirement by posting a separate performance guarantee with respect to certain improvements, arguing that the basin-maintenance escrow would be duplicative of that guarantee. It relies, in part, on facts contained in a certification by counsel, dated February 15, 2013, which was approximately one month after the filing of Majestic's notice of appeal. That certification was not before the judge during the remand, and the judge did not address the issue in his decision. We decline to consider the issue for the first time now.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION