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Sussex Commons Associates, LLC v. Township of Frankford Land Use Board

July 11, 2008

SUSSEX COMMONS ASSOCIATES, LLC, PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
TOWNSHIP OF FRANKFORD LAND USE BOARD, DEFENDANT-RESPONDENT.
CHELSEA PROPERTY GROUP, INC. AND CPG PARTNERS, L.P., INTERVENORS/CROSS-RESPONDENTS, AND ROBERT MCDOWELL, INTERVENOR-APPELLANT/CROSS-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-685-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2008

Before Judges Axelrad, Sapp-Peterson and Messano.

Plaintiff, Sussex Commons Associates, LLC, commenced this action in lieu of prerogative writs challenging defendant Township of Frankford Land Use Board's (the Board) decision to adopt the "Frankford Center Plan" as part of Frankford Township's (the Township) Master Plan. Plaintiff contended that in doing so, the Board violated various agreements plaintiff had previously reached with the Township that were intended to facilitate the development of a shopping center at an intersection known as Ross' Corner. In addition, plaintiff sought disqualification of a member of the Board, intervenor Robert McDowell, who was also Deputy Mayor and member of the Township Committee, "from all further involvement in [p]laintiff's application and the Frankford Center Plan process, in his capacities as a member of the Township Committee and [the Board]." Specifically, plaintiff alleged that McDowell, individually and as a member of amicus curiae Citizens For Responsible Development of Ross' Corner (CRDRC), had "entered into an agreement with another developer to prevent [p]laintiff from developing a shopping center at Ross' Corner." The other developer was alleged to be intervenors Chelsea Property Group, Inc. and CPG Partners, L.P. (collectively, Chelsea), competitors against whom plaintiff had filed a separate lawsuit in the Law Division.

McDowell, supported by CRDRC, appeals from two orders entered by the trial judge. The first, dated March 30, 2006, "preclud[ed] his further participation in plaintiff's . . . application and property in [the] Township in his capacities as a member of the Township Committee and [the Board]." The second order, dated June 6, 2006, entered in response to McDowell's motion to intervene and for reconsideration, continued McDowell's disqualification only during the Board's consideration of plaintiff's then-pending site plan and subdivision application.

Plaintiff cross-appeals from the judge's August 4, 2006, order that denied its motion to disqualify McDowell completely from any participation in matters related to its interests, and denied its request to depose McDowell and obtain discovery from him. However, plaintiff has completely failed to address any of the issues raised by its cross-appeal in its brief. Under such circumstances, we conclude plaintiff has abandoned its cross-appeal, and it is dismissed. Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001); Pressler, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2008).

We have considered the arguments raised by the parties in light of the record and applicable legal standards. We reverse.

I.

Plaintiff filed its complaint on December 7, 2005, naming only the Board as defendant. It contended that as contract purchaser for a number of parcels in the Ross' Corner area, it had negotiated "a series of contracts with [the] Township and public entities . . . in 2003, and again in 2004." Plaintiff further alleged that on November 12, 2004, and February 18, 2005, it filed "an extensive application" with the Board. The application was deemed complete on March 30, 2005, and plaintiff contended "public hearings [were] continuing with respect to this subdivision and site plan application." The complaint alleged that on October 26, 2005, the Board adopted the "Frankford Center Plan," which plaintiff claimed had several "detrimental effects" on its application and otherwise violated the previously-negotiated contracts.

In count two of the complaint, plaintiff alleged that McDowell as a member of the Board had spoken in favor of the Frankford Center Plan "which led to its adoption" in October. It also alleged that McDowell had agreed both individually and through his participation with CRDRC to thwart plaintiff's development in favor of a competitor, Chelsea. Plaintiff further contended that McDowell "ha[d] an illegal conflict of interest with respect to [p]laintiff's application." It sought his disqualification as both a member of the Board and the Township Committee from any further involvement with plaintiff's application of the Frankford Center Plan process. Despite the pendency of its application before the Board for some time, and McDowell's participation in those hearings, plaintiff never sought his disqualification before the Board itself.

On December 28, 2005, plaintiff moved for an order granting the permanent relief sought in the complaint regarding McDowell. A supporting certification of Kevin D. Kelly, counsel for plaintiff, detailed plaintiff's allegations regarding McDowell's conflict of interest. While the certification sometimes referenced specific documentary evidence, it often recounted facts not within counsel's personal knowledge or otherwise relied upon hearsay. For example, Kelly certified that, "[M]embers of the office of Smart Growth ("OSG") advised [his] client that [] McDowell had traveled to Trenton, met with OSG, and advised OSG . . . that [the] Township was officially opposed to [his] client's project."*fn1

Specifically, plaintiff asserted that McDowell openly expressed opposition to plaintiff's project while running for election to the Township Committee; that he was involved with Paul Sutphen, who later founded CRDRC, in securing a traffic expert from the engineering firm of Schoor DePalma to prepare a report in opposition to plaintiff's project; that he was represented in related litigation by David Mintz, an objector to plaintiff's proposed development at Ross' Corner; and that efforts of the objectors were financed at least in part by Chelsea. Plaintiff contended that, although no discovery had yet occurred in the matter, sufficient evidence already existed to determine that McDowell should be disqualified because of a conflict of interest.

On January 11, 2006, counsel for the Board filed his certification in opposition to plaintiff's motion. Specifically, he noted that plaintiff's exhibits in support of the motion all pre-dated its application to the Board and predated McDowell's membership on the Board. He further noted that none of the Board members, including McDowell, expressed a belief that they were in a conflict of interest regarding plaintiff's application, and that plaintiff commenced the application hearings in May 2005 and never objected to McDowell's or any other Board member's participation. He denied that Mintz represented McDowell, noting that Mintz was not admitted to the practice of law in New Jersey. Finally, the Board's counsel certified that the Township Committee agreed to provide independent counsel to McDowell, and that after discussions with his appointed attorney, McDowell had not recused himself.

On February 1, 2006, plaintiff filed the supplemental certification of its counsel in further support of its motion. In particular, exhibits attached to Kelly's certification included evidence obtained through discovery in plaintiff's lawsuit against Chelsea, e.g., excerpts of depositions taken from Sutphen and Chelsea's principal officers, all of which it claimed supported the conclusion that McDowell had personally supported CRDRC's efforts to thwart plaintiff's development and that Chelsea had funded the efforts.*fn2

The record reveals no written response by the Board. By letter of March 6, 2006, to the judge, personal counsel for McDowell indicated that he would not appear at oral argument, noting the Board was represented by ...


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