On appeal from Superior Court, Law Division, Monmouth County.
Michels, Gruccio and D'Annunzio. The opinion of the court was delivered by Gruccio, J.A.D. D'Annunzio, J.A.D. (concurring).
[247 NJSuper Page 3] Plaintiff Squires Gate, Inc., (Squires Gate), appeals from the grant of summary judgment in favor of defendant County of Monmouth (County). The County cross-appeals from the grant of summary declaratory judgment in favor of Squires Gate and plaintiff New Jersey Shore Builders Association (Shore Builders) and from the denial of its motion to dismiss.
Plaintiffs filed a complaint in lieu of prerogative writs against the County and defendant Township of Freehold (Freehold) on August 18, 1988. It alleged that the Monmouth County Planning Board (Planning Board) acted ultra vires in requiring Squires Gate to make a contribution for bridge improvements as part of the approval process for its proposed subdivision and sought the return of $93,456 which had been paid by Squires Gate. On December 20, 1988, the County filed an answer denying the complaint's allegations and asserting several affirmative defenses. Freehold filed its answer on October 19, 1988.
The briefs filed in this case indicate that on April 26, 1989, plaintiffs moved for summary judgment against the County. On June 12, 1989, the County evidently cross-moved for summary judgment and for dismissal of the complaint.*fn1 Plaintiffs and Freehold resolved their controversy and, on June 26, 1989, entered into a consent order dismissing all claims against Freehold.
On July 24, 1989, the motion judge, in an oral opinion, held that the County had no authority under the County Planning Act, N.J.S.A. 40:27-1 to -6.13, to require Squires Gate to make contributions for bridge improvements necessary only for road safety purposes. However, he found that Squires Gate was not entitled to a refund of its contribution because it had paid the monies without objection or notice of objection, i.e., the volunteer rule. The judge also determined that the procedural objections raised by the County were without merit.
On October 20, 1989, Squires Gate appealed the grant of summary judgment in favor of the County and the denial of its cross-motion for summary judgment. On November 2, 1989, the County filed a cross-notice of appeal challenging the motion judge's denial of its motion for dismissal and the grant of
Squires Gate's request for summary declaratory judgment. Shore Builders has not appealed.
There is little or no dispute between the parties regarding the facts underlying this action. It appears that Squires Gate is the owner of a subdivision known as Barker's Ridge, located on Three Brooks Road in Freehold. Squires Gate is a member of Shore Builders, an association of builders, developers, real estate agents, bankers and other entities connected with the construction industry in Monmouth and Ocean Counties. The application for subdivision approval of Squires Gate's predecessor-in-title, Bradgate Associates of New Jersey, Inc. (Bradgate), was received by the County Planning Board on May 12, 1986. On October 7, 1986, the County Planning Board's Subdivision and Site Plan Committee disapproved the project because the plan showed a widening of Three Brooks Road without the widening of its bridges. Apparently, Freehold required Bradgate to provide for the widening of the road to accommodate the additional traffic caused by the development. Freehold, of course, did not require that the bridges, which were part of the County drainage system, be widened. The Site Plan Committee concluded that the new road design would be hazardous to traffic, a fact that appears to be amply supported by a review of the plans submitted to us at oral argument. Bradgate did not appeal the disapproval.
Bradgate's counsel sought a meeting with the Monmouth County Planner to discuss the possibility of eliminating the bridge-widening requirement. The County Planner suggested that Bradgate's traffic engineer devise a design to lessen the hazards caused by the narrow bridges on the widened road. He also noted that the County might be more agreeable to Bradgate's project if it agreed to indemnify the County for any liability arising from the roadway's design.
On January 27, 1987, Bradgate's president, Roy K. DeBoer, voluntarily proposed that Bradgate post a cash escrow with the County for its proportionate ...