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Toll Bros., Inc. v. Board of Chosen Freeholders of the County of Burlington

September 18, 2006


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket Nos. L-187-03, L-2376-02 and L-899-03.

The opinion of the court was delivered by: Lefelt, J.A.D.



Argued April 4, 2006

Before Judges Lefelt, Hoens and Seltzer.

All three of these appeals,*fn1 which we have consolidated for purposes of decision, deal with whether plaintiff developer, Toll Brothers, Inc., should be bound by two agreements that it entered into with defendants Burlington County and Moorestown Township for the completion, at plaintiff's sole cost, of certain road improvements, which are now estimated at over $5,000,000. Also at issue is whether plaintiff has any contractual rights against defendant Whitesell, another developer, for more than Whitesell's pro-rata share of the road improvements, and whether the County and defendant Mount Laurel Planning Board violated any of plaintiff's rights by treating Whitesell more favorably with regard to the required road improvements.

The trial court resolved all of these issues by summary judgment against Toll Brothers and in favor of defendants Burlington County, Burlington County Planning Board, Moorestown Township, Moorestown Planning Board, Mount Laurel Planning Board, Thomas R. Whitesell, and various companies controlled by Whitesell.

To review a trial court's grant of summary judgment, we apply the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). In this case, therefore, we consider the record in a light most favorable to plaintiff to determine whether there were any genuine issues of material fact; and if there were none, whether the defendants were entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). After completing our review in this fashion, we have concluded that plaintiff is bound by its agreement with the County, as the trial court correctly found, but that plaintiff's contract with Moorestown does not require the road improvements, specified therein, to be completed at this time. We decide all other issues against plaintiff and in favor of defendants.

Consequently, we affirm in A-4814-03T5 and A-4816-03T5 and reverse and remand in A-6884-03T5.


Because this dispute developed over a number of years, the facts are lengthy and somewhat complex even though we summarize only those facts necessary to resolve the dispute. In the mid-1980's, defendant Whitesell established with three others the Moorestown Foursome. Foursome, with each of its members owning 25% of the newly formed entity, assembled approximately 540 contiguous acres in Moorestown and Mount Laurel Townships for a planned development to be known as Laurel Creek. The development was to include a golf course and country club, single family and townhouse residential units, retail property, and office space.

Separate from the land assembled by the Foursome upon which Laurel Creek was to be developed, Whitesell, through TRW Land, one of Whitesell's companies,*fn2 also owned an additional forty-seven acre tract adjacent to the proposed Laurel Creek development. On this separate tract, Whitesell intended to build approximately 500,000 square feet of office space.

The proposed site for the Laurel Creek development was roughly bordered by Creek Road on the north, Borton Landing Road on the west, Hartford Road on the south, and Centerton Road and Interstate Route 295 on the east. At that time, the site was rural with scattered homes and farms, with the exception of a service station at the northwest corner of Creek Road and Centerton Road.

Centerton Road, which runs north-south,*fn3 roughly parallel to I-295, is a two-lane municipal roadway without shoulders, curbs or sidewalks, except where it connects with I-295 at interchange 43 and widens to four lanes. Sections of the road run through Moorestown and Mount Laurel Townships, with Parker's Creek, which intersects the road, as the boundary line between the two townships. The southern section of the road in Moorestown, south of Laurel Creek, has been improved with a curbed grass median and two lanes in both the northbound and southbound directions. However, the northern section of the road, near the Laurel Creek development and the Winner Farm, which is east of Centerton Road and west of I-295, has not been improved and is currently only twenty-four feet wide with a single lane in each direction without shoulders.

In the Moorestown section of Laurel Creek, Foursome intended to build 470 dwelling units, the 18-hole golf course, and 1.2 million square feet of office space. The office space was to be built in phases 1A, 1B, 1C, and 2. Approximately 350,000 square feet of office space was planned for Phases 1A, 1B, and 1C, on the east side of Centerton Road, adjacent to Parker's Creek and the Whitesell tract on the north, and the Winner Farm on the south. Phase 2, containing 870,000 square feet of office space, was to be located on the west side of Centerton Road across from the Winner Farm and the Phase 1 property.

The Mount Laurel section of the development was to include a 25,000 to 30,000 square-foot clubhouse servicing the golf course and 47,000 square feet of retail space, which was described as "service oriented to take care of the residents in the area." Whitesell's forty-seven acre tract, which was to be developed as the Whitesell Office Park with 500,000 square feet of office space, was in Mount Laurel adjacent to and north of Laurel Creek's Phases 1A-C, and east of the Laurel Creek Country Club and the proposed 47,000 square feet of retail space in Mount Laurel.

It quickly became obvious that the ambitious development would have a significant impact upon traffic in this rural area. A general consensus developed that Centerton Road should be realigned to come in at right angles to Creek Road, farther west of the I-295 interchange, and that the new realigned Centerton Road and Creek Road intersection should be signalized. In addition, various traffic improvement reports recommended several other road widening and traffic improvement projects in the vicinity of Laurel Creek.

Each of the land use approvals for the Laurel Creek development, obtained by Foursome from the Mount Laurel and Moorestown planning boards, required that Foursome also secure approval from the County Planning Board. Land use approvals granted to both Whitesell and Foursome by the Mount Laurel Planning Board, the Moorestown Planning Board, and the Burlington County Planning Board imposed conditions that the respective developers undertake the recommended roadway improvements at their cost.

In 1988, for example, the Mount Laurel Planning board specifically conditioned Foursome's preliminary subdivision plan on the County's approval of the relocation of the Centerton Road/Creek Road intersection, along with all necessary off-site improvements and that "until the intersection of Centerton Road and Creek Road is relocated, no building permit shall be issued which will permit more than 18% build out of the project." The Moorestown Planning Board and the County Planning Board both granted preliminary subdivision approvals conditioned on Foursome and Whitesell being responsible for roadway improvements, which at that time were estimated at approximately $2,000,000.

In 1990, Centerton Road became a proposed county road under the new master plan. Acceptance of the road by the County was dependent on the developers assuming responsibility for the realignment of the road and signalization at its intersection with Creek Road. Indeed, at no time during the course of this development has the County indicated any interest in having its taxpayers pay for any portion of the roadway improvements made necessary by the development.

In the early 1990's, a severe depression in the real estate industry derailed Whitesell's proposed office complex, and Foursome ran into financial difficulties precluding further development. At this time, Foursome had completed only the clubhouse, reduced to 24,000 square feet from an originally proposed 25,000-30,000 square feet, and the golf course, located in Mount Laurel and Moorestown. Neither Whitesell nor Foursome had executed any developer's agreement with the County, as required by the preliminary county approvals that had been previously issued.

Midlantic National Bank, which held the mortgage on Laurel Creek, instituted foreclosure proceedings against the defaulting Foursome. Plaintiff Toll Brothers, Inc. purchased Midlantic's mortgage on September 30, 1994 and on December 22, 1994 settled with Foursome. Pursuant to the settlement, sometime in early January 1995, Foursome transferred to plaintiff title to the Laurel Creek development and a substantial amount of cash. Included in the transfer were all contract rights and approvals that Foursome had obtained.

Upon acquiring title, plaintiff began working toward completion of the approval process for all phases of the development. On July 12, 1995, plaintiff entered into a developer's agreement with the Burlington County Board of Chosen Freeholders. The agreement more clearly defined plaintiff's obligations under the prior approvals that had been given to Foursome. The agreement incorporated Foursome's obligation to complete, at its sole cost and expense, the Centerton Road/Creek Road improvements before any permit was issued for a building that would generate more than 18% of the projected traffic for the entire proposed development.

Following execution of the developer's agreement in June 1995, the County reiterated plaintiff's obligation to complete the Centerton Road realignment and intersection in a series of meetings, letters, and approvals related to plaintiff's plan for Phase 1 of its proposed office complex along Centerton Road in Moorestown. In fact, when plaintiff obtained conditional site plan approval from the County on April 27, 1999, for Phase 1A, a 75,000 square-foot office building, the County reiterated its understanding that plaintiff would be "100% responsible to realign Centerton Road."

At the time plaintiff obtained the County's approval for Phase 1A, plaintiff intended to construct in Phase 1B, a 110,000 square-foot office building, and in Phase 1C, a 155,000 square-foot office building. The Moorestown Planning Board, on October 28, 1999, granted plaintiff preliminary and final site plan approval for Phase 1A, and preliminary approval for Phases 1B and 1C. The resolution recited that, as part of the project, plaintiff "will be constructing road improvements to Centerton Road as detailed on the plans submitted."

The resolution further indicated, as condition sixteen, that the Centerton Road improvements "shall be the subject of a developer's agreement which shall spell out in detail the necessary construction methods . . . to the satisfaction of the township's Engineer."*fn4

Plaintiff eventually constructed the office building designated for Phase 1A and leased the structure to Comcast Cable. Plaintiff did not make the improvements required by the County to Centerton Road.

In November 2000, about the same time plaintiff applied to Moorestown for final site plan approval for Phases 1B and 1C, plaintiff contracted to purchase the Winner Farm. In conjunction with its application for final site plan approval for Phases 1B and 1C, plaintiff submitted "Concept Plan Section II" and "Concept Plan Section III" dated February 24, 2000, along with a narrative explaining the phasing of the Centerton Road improvements.

The Section II concept plan provided for the widening of Centerton Road from east of the Phase 1A site to a point approximately halfway between Phase 1A and its intersection with Hartford Road. The Section III concept plan provided for the widening of Centerton Road to four lanes through its intersection with Hartford Road. ...

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