On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Dreier, Havey and Brochin. The opinion of the court was delivered by Dreier, J.A.D.
Plaintiff, Mill Race, Ltd., appeals from the dismissal of its Law Division complaint on the basis that its claim was barred by the entire controversy doctrine.
For an understanding of this matter we must of necessity review the earlier suit urged here as a bar, N.J. Bldrs. Ass'n v. Bernards Tp., 211 N.J. Super. 290 (Law Div.1985), aff'd 219 N.J. Super. 539 (App.Div.1986), aff'd 108 N.J. 223 (1987). In the earlier action, New Jersey Builders Association attacked a Bernards Township zoning ordinance requiring developers to contribute to an off-site improvement fund. Judge D'Annunzio in the Law Division determined that the ordinance was ultra vires, since it exceeded the Legislative grant expressed in N.J.S.A. 40:55D-42. In our affirmance for the reasons stated in Judge D'Annunzio's opinion, we further declined to order the judgment to be of only prospective application. The Supreme Court affirmed in an opinion which also specifically noted that "the invalidation of the ordinance should not be limited to prospective application only." 108 N.J. at 238
In the earlier action, the plaintiffs were stated to be New Jersey Builders Association, and Builders Association of Somerset and Morris,
trade organizations consisting of builders and developers, some of whom allegedly own property in Bernards Township that they intend to develop. Plaintiff Mill Race Limited is a purchaser of land in the Township that has since been developed. [108 N.J. at 227].
Plaintiff Mill Race has asserted in arguments before us that the builders' associations, rather than individual builders, brought suit in the earlier action in order to avoid retaliation against
particular developers who might have sought later municipal approvals. Mill Race was added as a party plaintiff only so that the action could further be prosecuted as a taxpayer action, since plaintiff owned property in the community. Plaintiff is not a builder.
Prior to 1981, plaintiff contracted to purchase property in Bernards Township. On March 29, 1982 plaintiff sold its right to the land to Country Place Associates (through an affiliate of Country Place) by an agreement which provided for an offset for amounts paid by the purchaser for sewer connection fees, additional assessments and the disputed off-tract contributions, if the amount of such combined fees exceeded $2,400 per unit. Country Place then undertook development of the property and obtained preliminary and final site plan approvals to construct 150 multi-family condominium units in 19 buildings on this site. After payment of all fees, including the off-site improvement fees required by the disputed ordinance, the purchase price of the land from plaintiff was reduced by $139,950, the amount of plaintiff's claim in this action.
The Law Division opinion in the N.J. Bldrs. Ass'n case was rendered February 25, 1985. Less than two weeks later, on March 8, 1985, plaintiff, as the assignee of Country Place,*fn1 requested a refund from the Township. When the Township refused to refund the fees, plaintiff filed its complaint on April
1, 1985, demanding the return of the off-tract improvement ...