On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Monmouth County, Docket No. C-163-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 10, 2007
Before Judges Weissbard and Gilroy.
This appeal arises out of a breach of contract action where plaintiff, CPG Tinton Falls Urban Renewal, LLC, (CPG) individually and as assignee of the Borough of Tinton Falls (Borough), seeks enforcement of its rights under a five party property owners' agreement (POA) against defendants, the Township of Neptune (Township), and the Mayor and Township Committee of the Township of Neptune. Defendants appeal from the August 4, 2006, order of the Chancery Division, General Equity Part, that granted CPG summary judgment and injunctive relief. We affirm.
CPG is the owner of property designated as Block 135, Lots 1.01, 4, 6.01, and 7.01 on the tax map of the Borough and Block 1508, Lots 1 and 2 on the tax map of the Township. CPG possesses final site plan approval from the Borough to construct the Jersey Shore Premium Outlet Center (the Outlet Center). Although the Outlet Center is to be constructed within the Borough near State Route 66, it will not abut the roadway. Accordingly, vehicular access to and from the Outlet Center via State Route 66 requires the construction of a new bridge overpass over State Route 66, together with ramps to and from the bridge overpass (collectively, the Project).
State Route 66 is a major roadway that runs in an easterly/westerly direction in the area of the proposed Outlet Center with the Borough lying to the north of the roadway and the Township to the south. On August 8, 2001, the two municipalities entered into the POA with three major private property developers: Joven Centre, Inc., predecessor in title to CPG's property; Commercial Realty and Resources, Inc.; and Hovtowne, Inc., owners of properties lying to the south of Route 66. Under the POA, the parties contemplated future development along Route 66, requiring the construction of the Project, as approved by the New Jersey Department of Transportation (DOT) in a collateral agreement referenced in the POA, to provide ingress and egress to and from the property, then owned by Joven Centre, as well as other properties lying to the north of Route 66. All parties acknowledged in the POA that each would derive "substantial benefits from the construction of [the Project]."
The POA provided that the Project was to be designed in accordance with DOT approval, placed "for bid to DOT qualified contractors with the appropriate classification in accordance with applicable public bidding law requirements" and constructed by the Borough under the supervision of its engineer and the DOT. In consideration of constructing the Project and other improvements referenced in the POA, the Township consented to the construction of the Project and agreed "to accept dedication of those portions of the Project situate within the Township" and to be responsible for the cost of maintenance of the same. Attached to the POA was a copy of the agreement between the Borough and the DOT, pertaining to the Project, to which was attached a conceptual plan depicting the proposed location of the Project. The POA did not prohibit any party from assigning its contractual rights and obligations under the agreement.
Between March 2002 and June 2005, the Borough through its engineer, commenced preparing preliminary design engineering documents and obtaining DOT design approval for the Project. On August 24, 2004, Joven Centre assigned its contractual rights under the POA to CPG. On June 29, 2005, the Borough assigned certain of its contractual rights and obligations under the POA to CPG to facilitate construction of the Project. However, oversight of the construction of the Project remained under the supervision of the Borough's engineer and the DOT. On November 30, 2005, the DOT gave final approval to the construction plans. Upon receipt of final approval, the same engineering firm that had prepared the design engineering documents on behalf of the Borough, drafted the proposed construction contract and bid specifications for the Project. On December 15, 2005, CPG solicited bids for the Project in accordance with the standards for bidding a public construction contract, and sealed bids were received on March 21, 2006. Under the bid documents, CPG was scheduled to award the Project construction contract on or before June 19, 2006. The DOT permits for the project would expire in January 2007, unless work commenced on the Project prior thereto.
Although having supported the Project from 2001 to 2005, defendant Mayor and Township Committee commenced voicing opposition to the Project in mid-2005. On January 9, 2006, the defendant Township Committee adopted Resolution No. 06-67 entitled "Declare the Five Party Agreement for the Construction of the State Highway Route 66 Overpass and Victoria Boulevard Extension Null and Void." On the same date the Township Committee adopted Resolution No. 06-72 entitled "Request the New Jersey Department of Transportation to Revoke Highway Access Permit S-66-C-0036-2002 and S-66-C-0037-2002." Both permits are necessary for construction of the Project. In or about May 2006, CPG offered the deeds of dedication corresponding to those portions of the Project lying within the Township, requesting that the Township confirm its intention to accept the deeds of conveyance. After the Township failed to respond, CPT instituted the present action by complaint and order to show cause (OTSC), seeking injunctive relief, prohibiting defendants from interfering with the project, and for specific performance, compelling defendants to comply with all terms and provisions of the POA.
On the initial return date of the OTSC, the trial court heard argument of the parties, but did not rule on CPG's application for a temporary restraining order. On June 30, 2006, determining that no material issues of fact existed, the trial court converted the matter into a summary judgment proceeding and granted CPG summary judgment: 1) permanently restraining and enjoining defendants from interfering in any manner with the construction of the Project as set forth in the POA; and 2) directing defendants specifically perform in good faith their contractual obligations under the POA, including but not limited to, executing all documents and accepting all deeds and dedication and easements as may be necessary to construct and operate the bridge overpass from Route 66 and associated ramps and roadways. A confirming order was entered on August 4, 2006.
On appeal, appellants argues:
AS A MATTER OF LAW, ONE MUNICIPLITY MAY NOT DECLARE ANOTHER'S LAND IN NEED OF "REDEVELOPMENT"; IF THE LOWER COURT WISHED TO DISPOSE OF THIS MATTER SUMMARILY, IT SHOULD HAVE UPHELD ...