On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9182-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Messano.
In this contract dispute, plaintiff Northgate Condominium Association, Inc. appeals from an order of the Law Division granting defendants Caliber Builders, Inc. (Caliber), Golden Orchards Associates, LP (Golden Orchards), and Golden Oaks Homeowners Association (Golden Oaks) (collectively, defendants) partial summary judgment on seven of the eight counts of the complaint. The complaint sought, among other things, specific performance of a settlement agreement entered into by the parties.*fn1 The motion judge determined that the agreement applied to a project that was never built and found that there was no breach of the agreement. He granted summary judgment and dismissed the complaint. We affirm.
The dispute between the parties transcends the issues raised here. In fact, plaintiff filed an action in lieu of prerogative writs challenging the approval of the subsequent application filed by Caliber. After an adverse decision in the Law Division, plaintiff appealed, and we affirmed. Northgate Condo. Ass'n v. Hillsdale Planning Bd., No. A-1042-09 (App. Div. Jan. 24, 2011).
These are the facts relevant to this appeal.*fn2 Golden Orchards owns approximately 12.5 acres of land partially located in the Borough of Hillsdale and partially in the Township of Washington (the property). Caliber, Golden Orchards's developer, sought to develop single-family houses on the property and filed applications with both the Hillsdale and Washington Planning Boards for subdivision approval. Northgate, a community of town homes, objected to Caliber's plans due to water drainage concerns.
More specifically, the property owned by Golden Orchards is located on the tax map of Hillsdale as Block 506, Lot 1, and the tax map of Washington, Block 2101, Lots 3 and 7. The bulk of the property, 9.79 acres, is located in Hillsdale, and the remaining 2.69 acres is located in Washington. The property is "unimproved and mostly wooded area," and commonly referred to as "Golden Orchards."
In 2001, Caliber was interested in building age-restricted homes on the property. However, the Hillsdale Borough Council did not enact the necessary zoning ordinances, and Caliber abandoned the project. The next year, 2002, Caliber developed plans for a use permitted under the existing zoning ordinances - a nineteen lot subdivision, in which each lot was to contain one single-family dwelling (the 2002 project).*fn3 Caliber submitted applications to both the Hillsdale and Washington Planning Boards because the project encompassed "both jurisdictions and . . some individual lots [lay] within both Hillsdale and . . . Washington." Moreover, because portions of the property border "environmentally restricted areas," Caliber also requested permits from the New Jersey Department of Environmental Protection (NJDEP).
In December 2003, Caliber received preliminary subdivision approval from the Hillsdale Planning Board. However, during public hearings before the Washington Planning Board, the application was unwaveringly opposed by Northgate, an association of seventy-one townhouses, located "on the [Washington] municipal boundary line with Hillsdale to the north." Critically, Northgate, 200 feet immediately south, is at a lower elevation than the property.
According to Northgate's president, Robert Malone, "[d]rainage and storm water is a serious problem at Northgate" because "[w]henever the complex experiences heavy rains, the storm water detention basins quickly fill up, and on occasion, overflow." Malone expressed concern "that development on [Northgate's] northern border . . . could exacerbate the problematic drainage conditions that already existed." In addition to drainage, Northgate expressed concern about "reasonable landscaped buffers, a fence on the common border, and suitable building setbacks"; however, the drainage issue dominated the concern. As a result, Northgate retained John Thonet, a professional engineer and expert in storm water management, who summarized Northgate's concerns:
Northgate sits at an elevation lower than properties to the north, so during periods of rainfall, water naturally drains . . . onto Northgate over the entire border of the properties. Some storm water falling on Northgate is accumulated in detention basins which were designed over 20 years ago to manage only the storm water that fell from the Northgate townhouse project. It was not designed to handle a discharge of water from a new project to its north.
Thonet determined that Caliber's application "would result in excess storm water runoff being directed onto Northgate's property with flooding of the existing detention basins." In response, he met with engineers from Caliber, the Hillsdale Planning Board, and the Washington Planning Board "to discuss storm water management and drainage issues." Caliber subsequently "agreed to redesign its plans" to satisfy some, but not all, of Northgate's drainage objections.
As a result of ongoing discussions and modifications, attorneys representing Caliber and Northgate "proposed [an] agreement which regulated what could be built and the site improvements that would be constructed." A finalized settlement agreement (the ...