On appeal from the Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. C-51-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Parrillo.
Plaintiffs Oak Forest Mobile Home Forest, LLC, Ocean Heights Rental Home, LLC and Ralph Clayton appeal from an order of the Chancery Division denying enforcement of a consent order purportedly requiring defendants Crossing M.H.C. Corp. and Brangan Group, LLC to present a complete site plan application to the Egg Harbor Township Zoning Board of Adjustment (the Board), including in that plan property identified as the Red Rose property, a parcel controlled by plaintiff. The judge concluded that the Red Rose property was not included in the transaction and denied the requested relief. We affirm.
We briefly set forth the relevant facts. Plaintiffs and defendants individually and collectively owned various lots of real property in Egg Harbor Township. Plaintiffs agreed to sell certain adjacent lots to defendants and enter into a joint development venture. To effectuate this transaction, the parties agreed to submit a joint application to the State of New Jersey Department of Environmental Protection (DEP), Land Use Regulation for a permit under the Coastal Area Facility Review Act (CAFRA permit). See N.J.S.A 13:19-1 to -21. Defendants intended to construct a retail/office complex, and plaintiffs intended to construct a ninety two unit age restricted manufactured housing community. Plaintiffs' obligation was contingent upon obtaining a mobile home park zoning variance. Additionally, defendant Crossing M.H.C. Corp. owned the Ocean Heights Trailer Park and agreed to retire its mobile home park license when plaintiffs received the variance. The original agreement between the parties did not include Block 5210, Lot 9, the Red Rose property, which was owned individually by plaintiff Ralph Clayton.
The parties appeared before the Board for a use variance hearing to allow the construction of the housing complex. The proposed location of the age restricted development was in a Neighborhood Business Zoning District (NBZ), which allows commercial use only. At the time of the application, Ocean Heights Trailer Park existed at the site of the proposed housing development. This run-down and blighted complex was owned and operated by defendants, who sought to surrender and legally abandon it if the use variance was granted.
Ultimately, the use variance was approved in part because the joint venture included the development of a shopping center. The Board's resolution granting the variance required the parties to submit a site plan, and the resolution included the Red Rose property, which defendants had not acquired.
On August 14, 2007, the DEP granted the parties a CAFRA permit for the development. At the time the permit was obtained, the property was designated as a "Town Center" under the State Plan administered by the DEP, which meant that a site plan with 70% total impervious coverage was appropriate. However, the "Town Center" designation has expired, and the property is presently located in a "Coastal Rural Planning Area," in which the maximum total impervious coverage would be 30%. The CAFRA permit included the Red Rose property as part of the development. The parties also applied to the Egg Harbor Township Municipal Utilities Authority (MUA) for sewer approval, and the application included the Red Rose property. Critically important, plaintiff Clayton and defendant Crossings MHC Corp. negotiated for the sale of the Red Rose property but could not reach an agreement.
Plaintiffs filed a verified complaint alleging that defendants violated the agreement by not submitting a site plan. Plaintiffs requested a court order "directing the [d]efendants to take all steps necessary to prepare and submit a site plan application to the Egg Harbor Township Zoning Board."
The parties reached a partial settlement, which was memorialized in an August 8, 2008 consent order. The consent order required defendant to "take all necessary steps to prepare and submit a complete site plan application... prior to October 8, 2008 to satisfy the requirements of" the board's resolution granting variance.
Defendants failed to submit the site plan, and plaintiffs moved to enforce the consent order. At a March 27, 2009 hearing, the judge denied plaintiffs' motion because defendants had not acquired Red Rose property, and submission of a site plan was not feasible. The judge then dismissed the complaint without prejudice to allow plaintiffs to pursue damages in the law division. This appeal follows.
On appeal, plaintiff asserts that the judge erred in not enforcing the consent order and compelling the production of the site plan. However, as the judge noted, "[u]nless there is some way to insure that the Red Rose property will be included in the project, there is no apparent reason to proceed with an application for site plan approval which includes that property." Although the record is unclear as to why the parties cannot reach agreement as to the inclusion of that property in this transaction, such reason is irrelevant to whether a court must enforce an order that cannot be performed.
We have carefully reviewed the record and plaintiffs' arguments in support of the appeal, we conclude that plaintiffs' arguments are without merit. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in Judge Todd's thoughtful oral opinion ...