On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4859-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parker, R. B. Coleman and Lyons.
Plaintiff Bergen Ridge Homeowners Association, Inc. (Bergen Ridge), a non-profit corporation, sued defendant Township of North Bergen (North Bergen) and defendant Riverview Development, LLC (Riverview) to set aside an unorthodox private sale of municipal property to Riverview. The trial judge, Hector R. Velazquez, determined that the municipality's sale of its undivided fifty-percent interest in a 5.5 acre tract held as a tenant-in-common with a private citizen was not in accordance with N.J.S.A. 40A:12-13(b)(5), but that Riverview relied upon North Bergen's determination that the sale was proper; that Riverview expended considerable funds in reliance thereon; that the sale was in good faith; that there was no evidence of fraud; that the sale price was supported by an appraisal; and that Bergen Ridge had not filed its suit for ten months following the adoption by North Bergen of an ordinance to authorize the sale. Accordingly, the trial court dismissed Bergen Ridge's complaint on the grounds of equitable estoppel. Because we agree with Judge Velazquez's thorough and well-reasoned oral decision, we affirm for substantially the reasons set forth in his opinion.
The pertinent facts are as follows. The property at issue is an undeveloped tract of land located in North Bergen, consisting of approximately 5.5 acres along the Hudson River. For more than thirty years, North Bergen owned an undivided fifty-percent interest in the property as a tenant-in-common with a private individual, Joseph Parisi (Parisi). All parties agree that a municipality holding an undivided fifty-percent interest as a tenant-in-common with a private citizen is unique, and not specifically addressed by any statute or case law. Prior efforts to develop the property had failed.
On May 28, 2004, Parisi contracted to sell his one-half interest in the property to A.K. Ventures, a predecessor of Riverview, for $2.5 million, contingent upon North Bergen agreeing to sell its one-half interest in the property to A.K. Ventures, as well. By agreement dated October 27, 2004, North Bergen agreed to sell its one-half interest in the property to A.K. Ventures for $2.5 million. The agreement of sale was subject to the passage of an appropriate ordinance authorizing the sale and the closing of the purchase of Parisi's other one-half interest. Although the current zoning ordinance permitted buildings with heights of up to 120 feet, the purchaser agreed in the agreement of sale, that the property would be restricted to an eighty-five foot height limitation. Before North Bergen executed the sale agreement, it obtained an appraisal which concluded that the $2.5 million sale price was a fair market price.
The ordinance authorizing the sale was finally adopted by North Bergen on November 10, 2004, and published on November 17, 2004. In May 2005, approximately five months after the end of the appeal period applicable to appeals from the ordinance, a closing occurred which vested Riverview with title to the entire parcel.
Following the closing, Riverview and North Bergen exchanged correspondence concerning an amendment to the agreement of sale to change the height restriction of eighty-five feet. North Bergen agreed to amend the agreement of sale to remove the height restriction in consideration: (1) of receiving an additional $1 million; (2) an acceleration of payments; (3) a recreational easement on the property; (4) a commitment from Riverview to enlarge the view corridors; and (5) a commitment from Riverview to provide additional parking spaces to be rented to North Bergen residents. On August 4, 2005, North Bergen approved an ordinance to authorize the amendment to the agreement. That amended ordinance was published on August 10, 2005.
Counsel for Bergen Ridge, a non-profit corporation comprised of thirty-four members who own two- and three-family homes across the street from the site, appeared at the August 4, 2005 meeting and spoke in opposition to the amended ordinance. On September 1, 2005, Bergen Ridge's counsel wrote a letter to Riverview advising it not to continue to expend more money on the project since Bergen Ridge intended to take action to set the sale aside.
On September 23, 2005, Bergen Ridge filed its first complaint in this matter. Its purpose in attempting to set aside the sale is to preserve its views of the Hudson and beyond. It filed an amended complaint on October 12, 2005, and a notice of lis pendens on December 9, 2005. It filed a second amended complaint on February 27, 2006. On May 30, 2006, the trial court granted defendant's motion to discharge plaintiff's notice of lis pendens. On July 21, 2006, the trial was held in this matter and the court placed its decision on the record on August 2, 2006. On September 5, 2006, the court entered an order dismissing plaintiff's complaint in lieu of prerogative writs, and on November 27, 2006, the court executed an order dismissing without prejudice defendant's slander of title claim and determining its order to be final in all respects. This appeal ensued.
On appeal, Bergen Ridge presents the following arguments for our consideration:
THE PRIVATE SALE IS VOID BECAUSE THE TOWNSHIP FAILED TO FOLLOW THE ...