On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10236-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Messano.
Plaintiffs Nicholas and Cindy Panaccione appeal from the May 11, 2007 summary judgment dismissal of their Law Division complaint in favor of defendants Piotr Holowiak (defendant), Northeast Stucco Systems, Inc. (NSS), the Township of Old Bridge (Old Bridge) and the Planning Board of Old Bridge (Board). We affirm.
By way of background, defendant owned a 6.835-acre tract of residentially-zoned property on East Greystone Road in Old Bridge, and lived in a home situated in the middle of the property. The property was protected by the New Jersey Freshwater Wetlands Protection Act (FWPA), N.J.S.A. 13:9B-1 to -30. In 1997, the New Jersey Department of Environmental Protection (DEP) cited defendant for violations of the FWPA, which defendant claims were the result of tree removal and clearing activities on his undivided lot. Defendant submitted a restoration plan in response to the violations, and on December 19, 1997, the DEP approved a revised version of the plan. Six months later, on June 30, 1998, the DEP issued a letter advising defendant that it had "inspected the freshwater wetland restoration area and found it to be acceptable and reasonably in accordance with the approved restoration plan."
In November 1999, defendant submitted a land development application to Old Bridge seeking subdivision of the undivided property into three separate lots. The application specifically sought approval to create two additional building lots (Lots 60.11 and 60.13) on each side of defendant's current house (Lot 60.12). On August 6, 2002, the Board adopted a resolution specifically recognizing defendant's intent to develop the two new lots and approving his plan subject to several conditions. On October 3, 2002, the DEP approved defendant's application and issued a Statewide General Permit and Transition Area Waiver Averaging Plan Authorization.
After obtaining subdivision approval in 2002, defendant decided to sell his residence. Plaintiffs agreed to purchase Lot 60.12 from defendant for $935,000, and on August 3, 2005, the parties entered into a contract for sale. The contract contained an "as is" provision and an integration clause, specifically reciting that plaintiffs were not relying upon any representation of defendant or NSS outside those within the four corners of the contract. On August 11, 2005, plaintiffs' counsel confirmed that the contract was acceptable without modifications and the parties proceeded to closing.
Prior to closing, defendant, who was in Poland at the time, transferred the property in question (Lot 60.12) to NSS, of which he was the president and sole owner. At the October 28, 2005 closing, NSS conveyed the property to plaintiffs via a bargain and sale deed. The deed expressly refers to the subdivision plan, reciting: "[d]eed description refers to map entitled 'Proposed Minor Subdivision prepared for Piotr Holowiak of Lot 60 . . . ." Also at closing, the parties executed a release in which they waived "any and all claims" and rights against the other.
This much appears undisputed. The parties differ, however, over what if anything had been represented orally prior to the contract's closing. According to Nicholas Panaccione, defendant told him that the bookend lots were undevelopable and that he had no plans to develop them. Defendant denies making any such representation and in fact insists that he never met plaintiffs prior to signing the contract. Moreover, Grzegorz Kochan, vice president of NSS, certified that after closing, plaintiffs advised him that if defendant decided not to build on Lots 60.11 or 60.13, they would be interested in purchasing them.
In any event, based on their version, on December 22, 2006, plaintiffs filed a multi-count complaint against defendant, NSS, the Township and the Board, alleging common law and statutory consumer fraud, nuisance, and tortious interference with their enjoyment of the property.*fn1 In addition, or as an alternative to damages, plaintiffs' sought to void the Board's July 2, 2002 subdivision approval, which they contended was without knowledge of defendant's wetlands violations, and ultimately to enjoin defendant from developing the two parcels he still owned adjacent to their property. To that end, on January 29, 2007, plaintiffs moved for a preliminary injunction and leave to file a lis pendens. In response, on February 14, 2007, defendant filed a motion to dismiss plaintiffs' complaint with prejudice. In their opposition, plaintiffs, contending that defendant was still in violation of the FWPA, for the first time sought enforcement through the Environmental Rights Act (ERA), N.J.S.A. 2A:35A-1 to -14.
Treating the dismissal motion as one for summary judgment because materials beyond the complaint were presented,*fn2 the judge granted defendants the relief requested and denied plaintiffs' motions for a preliminary injunction and lis pendens. In so ruling, the judge specifically found that: plaintiffs failed to properly plead the ERA claim; both the contract and the general release barred plaintiffs' fraud-related claims; evidence supporting their fraud claims was barred by the parol evidence rule; the Consumer Fraud Act*fn3 was inapplicable; their nuisance claim was meritless; their challenge to the subdivision plan was time-barred; and they were not entitled to injunctive relief under the circumstances.
On appeal, plaintiffs raise the following issues for our consideration:
I. THE TRIAL COURT ABUSED ITS DISCRETION IN NOT PERMITTING AMENDMENT OF PLAINTIFFS' PLEADINGS TO INCLUDE THE ENVIRONMENTAL RIGHTS ACT ("ERA") AND IN NOT FINDING THAT PLAINTIFFS' PLEADINGS HAD ALLEGED THE ERA.
II. THE ENVIRONMENTAL RIGHTS ACT VESTS IN YOUR PLAINTIFFS AND THE TRIAL COURT THE RIGHT TO PROSECUTE TO CONCLUSION THE AVERRED VIOLATION OF N.J.A.C. §7:7A-14.5 AND ITS DEFERENCE TO THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION WAS NOT STATUTORILY REQUIRED UNDER THE WITHIN CICRUMSTANCES.
III. PLAINTIFFS HAVE THE INDEPENDENT RIGHT TO PURSUE THEIR CLAIMS REGARDLESS OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL'S INACTION, REMEDIES FOR ENVIRONMENTAL DESECRATION UNDER THE ERA UNDER THE WITHIN CIRCUMSTANCES.
IV. UNDER THE WITHIN CIRCUMSTANCES, THE PAROL EVIDENCE RULE DID NOT BAR EVIDENCE OF FRAUDULENT CONDUCT BY DEFENDANTS, NOR DID THE RELEASE EXECUTED BY PLAINTIFFS ANCILLARY TO CLOSING PRECLUDE THE RELIEF SOUGHT.
V. PLAINTIFFS' EXECUTION OF A RELEASE AT TIME OF CLOSING BY VIRTURE OF DEFENDANTS' FRAUDULENT CONDUCT DOES NOT BAR PLAINTIFF'S CLAIMS DIRECTLY OR COLLATERALLY AS IT RELATES TO THE CONTIGUOUS PARCELS NOT ENCOMPASSED THEREIN.
VI. THE CORPORATE DEFENDANT NORTHEAST STUCCO SYSTEMS, INC. IS SUBJECT TO THE NEW JERSEY CONSUMER FRAUD ACT AS A COMMERCIAL SELLER OF REAL ESTATE.
VII. THE TRIAL JUDGE ERRED IN GRANTING SUMMARY JUDGMENT PREMATURELY BY MAKING FACTUAL AND LEGAL CONCLUSIONS WITHOUT GIVING APPROPRIATE DEFERENCE TO THE REQUISITE INFERENCES AT THE TIME OF HEARING.
VIII. THE CONDUCT AVERRED BY THE PLAINTIFFS IN THE DESTRUCTION OF WETLANDS CONSTITUTES A PUBLIC AND PRIVATE NUISANCE.
IX. PLAINTIFFS, IN THEIR CHALLENGE TO THE WITHIN SUBDIVISION GRANT, ARE NOT BARRED BY THE FORTY-FIVE (45) DAY RULE.
X. THE COURT ERRED IN FINDING THAT THE AWARD OF MONETARY DAMAGES WOULD SUFFICE SHOULD PLAINTIFFS HAVE PREVAILED; A LIS PENDENS AND PRELIMINARY INJUNCTION SHOULD HAVE BEEN ISSUED.
We address these issues in the order raised.
During oral argument, plaintiffs raised an ERA claim not specifically or expressly pled in their complaint. The trial court noted at the time:
I don't see in your pleadings an assertion of the [ERA]. I see that that was first raised in your papers filed on April 19th . . . . but you didn't assert the [ERA]. It's not asserted anywhere in the pleading . . . [and] you are supposed to assert that in the complaint so the D.E.P. is on notice and the State . . . is made a party. That's one of the statutory requirements for invocation. . . . So while I note you raise it, it's really not before the Court . ...