On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County.
Lora, Antell and Pressler. The opinion of the court was delivered by Lora, P.J.A.D.
[174 NJSuper Page 156] Defendant Addison G. Bradley is the president of defendant Land Design, Inc., a "landscape architectural land planning firm" which packages ground for builders. He appeared at the April 13, 1978 meeting of the Upper Freehold Township Planning Board, where he presented a proposal concerning the development of 126 acres of land within the township. Among those present to hear Bradley's presentation was Thomas W. Birdsall, the board's engineer and a licensed professional land surveyor and planner. According to Birdsall, Bradley presented
himself to the board as a practicing professional planner despite the fact he lacked the required license in that he advised the board that his firm was a land planning firm, discussed densities of land use and types of use by residents, commented on preserving the area's rural character and how to provide sewage service, and stated that his primary role was as land planner. At no time did Bradley indicate that he was not a licensed planner. It was Birdsall's opinion that Bradley was clearly implying that he was a planner.
Bradley, on the other hand, emphatically denied representing himself as a licensed planner to the board. He asserted that he never used that title, never did planning for government bodies and had never himself done development work on a municipal or county master plan. He denied stating or implying that he was a professional planner; instead, he represented himself as a land planner. He explained that land planning is also known as land packaging, -- coordinating the various professionals who aid in the development of land in order to make presentations to planning boards.
On the return of the order to show cause which plaintiffs had secured upon the filing of their verified complaint, a tape of Bradley's presentation to the township planning board was heard by the trial judge. After hearing the tape and the testimony of the two witnesses, the trial judge stated that he agreed with defendant that he was not acting as a professional planner within the statutory definition of that term in N.J.S.A. 45:14A-2(a). The trial judge found that Bradley was not trying to advise the board, but rather was trying to persuade and "to sell a bill of goods" to the planning board, using personal puffery to promote his plan. The trial judge stated that the statute applied to those who are advising planning boards in connection with the development of master plans or other professional planning services related thereto, intended primarily to guide governmental policy for the assurance of the orderly and coordinated development of municipal land areas, but did not
apply to persons who appeared before planning boards requesting the subdivision of particular parcels of land. Therefore, the statute did not apply to defendant, whose business was landscaping and landscape planning and putting subdivision packages together in a way that they will be accepted by planning boards so that approvals can be obtained.
The trial judge found that the State had failed to establish that the act was violated and dismissed the order to show cause and complaint. Thereupon, defendants requested a declaration on their counterclaim that the act did not apply to defendants nor preclude any of the activities presently engaged in by them. The trial judge denied the application stating only, "[y]ou will have to live within the law, as we all have to live within the law."
Defendants first contend on their appeal that they were improperly denied relief on their counterclaim since the nature of the complaint constitutes a threat to the continued business activities of defendants while engaged in the lawful providing of their services. They assert that they are entitled to a judicial declaration that the provisions of N.J.S.A. 45:14A 1 et seq. do not apply to them or their activities and an order enjoining plaintiffs from further interference with defendants' business is necessary; that the trial judge's denial of the counterclaim contravenes judicial policy to join all matters of controversy in a single proceeding so as to avoid prolonged and piecemeal litigation.
Aside from the question of the propriety of the filing of defendants' counterclaim in light of the interdiction of R. 4:67 4(a) precluding the assertion of a counterclaim or cross-claim in a summary action under R. 4:67 without leave of court, we are of the view that defendants' contentions in this respect are clearly without merit. R. 2:11 3(e)(1)(E). The issue sought to be raised by the counterclaim and the scope of the general relief requested was patently far too broad.
Plaintiffs contend that defendant Bradley conducted himself before the planning board in such manner as to mislead its members into assuming defendants' business was licensed professional planning and that the trial judge erred in construing N.J.S.A. 45:14A 1 and 45:14A 2 as proscribing only the use of the title "licensed professional planner" by nonlicensees. It is their position that the statute prohibits all misleading titles and should apply to defendants who ...