On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3657-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2011
Before Judges Ashrafi and Nugent.
Plaintiff Beta Realty Unit 6 LLC appeals from a final judgment denying its claim for refund of a development fee it paid to defendant Township of Randolph. We affirm.
In 2005, Randolph Township enacted its Ordinance 31-05, by which the township required that non-residential developers pay a fee of 2.0% of the equalized assessed value of improvements they planned to construct. The purpose of the fee was to help fund the township's obligation to provide low and moderate income housing as required by the Mt. Laurel doctrine*fn1 and the Fair Housing Act, N.J.S.A. 52:27D-301 to -329.19.
Plaintiff owns a 10.55 acre tract in the township. In 2007, it filed an application with the township planning board for site plan approval to build an indoor tennis facility. By resolution dated February 28, 2008, the planning board granted preliminary and final approval with the necessary variances and waivers. As determined at a later time, the development fee payable to the township under its ordinance would be $46,500.*fn2
In July 2008, the Statewide Non-Residential Development Fee Act ("Fee Act"), L. 2008, c. 46, §§ 32-38 (N.J.S.A. 40:55D-8.1 to -8.7), was enacted. That legislation superseded local development fee ordinances and provided for uniform fees for funding Mt. Laurel housing. As of its effective date, July 17, 2008, the Fee Act set non-residential development fees at 2.5% of equalized assessed value of both the improvements and the land being developed. N.J.S.A. 40:55D-8.4a(1).
As a result of the new State legislation, the township determined that plaintiff was required to pay $94,702.50 for development of its tennis facility. In December 2008, plaintiff applied for a building permit and paid to the township one-half that amount, $47,351.25. The tennis facility was built and opened for business in 2009.
Because of the nationwide economic recession, another State law was enacted in July 2009 that affected the development fee payable by plaintiff. The New Jersey Economic Stimulus Act, L. 2009, c. 90 (N.J.S.A. 52:27D-489a to -489o), canceled for several years the collection of development fees in order to stimulate commercial development of land. See L. 2009, c. 90, § 37, amending N.J.S.A. 40:55D-8.6. As applied to this case, the Stimulus Act relieved plaintiff of any further payment and also provided for refund of fees already paid under the Fee Act. L. 2009, c. 90, §39 (N.J.S.A. 40:55D-8.8). However, the Stimulus Act excluded any refund of development fees that a developer had committed to pay before July 17, 2008. Ibid.
In the summer of 2009, plaintiff sought a refund of the $47,351.25 it had paid in December 2008. The township responded by letters from its attorneys in August and September 2009 acknowledging that plaintiff's development was exempt from payment under the new State laws but declining to grant a full refund. The township determined that plaintiff had committed to pay $46,500 under the township ordinance before July 17, 2008, and it was only entitled to a refund of $851.25, the difference between the amount committed and plaintiff's actual payment of $47,351.25. The township also charged plaintiff $2,320 for its own attorney's fees in responding to the request for a full refund.
In November 2009, plaintiff filed a three-count complaint in lieu of prerogative writs against the township. In count one, plaintiff claimed entitlement to a full refund on the ground that its tennis facility is exempt from payment under the Fee Act. In count two, plaintiff claimed it is also entitled to a full refund under the Stimulus Act. In count three, plaintiff challenged the attorney's fees the township had charged to plaintiff. The township filed an answer denying plaintiff's claims and a counterclaim for its attorney's fees.
Both parties immediately moved for summary judgment. The trial court heard argument on March 5, 2010. The court requested further development of the factual record so that it might evaluate whether the tennis facility is exempt under the Fee Act. The parties submitted supplemental certifications addressing the operations of the tennis facility.
By judgment order and a short written opinion dated March 24, 2010, the court granted summary judgment to defendant township dismissing plaintiff's claims for a full refund and concluding that the township was entitled to retain a development fee of $46,500 under its ordinance. On count three of the complaint and the township's counterclaim, the court granted summary judgment to plaintiff denying the township's demand for its attorney's fees. Plaintiff appealed; the township did not file a cross-appeal.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Here, both sides have argued that ...