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John Figa and Beverly Figa v. Raritan Township Planning Board and Hi-Gear Developers

May 3, 2011

JOHN FIGA AND BEVERLY FIGA, PLAINTIFFS-APPELLANTS,
v.
RARITAN TOWNSHIP PLANNING BOARD AND HI-GEAR DEVELOPERS, INC., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-281-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 19, 2011

Before Judges Wefing, Baxter and Koblitz.

Plaintiffs filed a two-count complaint in lieu of prerogative writs challenging the decision of defendant Raritan Township Planning Board ("Board") denying a subdivision application and seeking indemnification from defendant Hi-Gear Developers, Inc. ("Hi-Gear") for the counsel fees plaintiffs incurred in connection with this prerogative writ action. The trial court denied plaintiffs' request for indemnification and dismissed the challenge to the decision of the Board, concluding that plaintiffs lacked standing to raise the issue. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiffs owned a six-acre parcel of land that abutted a forty-nine acre parcel owned by Hi-Gear. Both were located in the township's R-3 zone. Plaintiffs knew that Hi-Gear wanted to develop its land, and they approached Hi-Gear with the proposal that it purchase a portion of their land and submit a development proposal to the Board that encompassed both lots. Hi-Gear agreed and, without the assistance of attorneys, the parties prepared a contract, which they executed on March 20, 2007. Under the contract, Hi-Gear agreed to "pay all expenses required to gain approval and develop a subdivision" and to pay plaintiffs $450,000 for a portion of their land, "to be used for creating lots" for the proposed subdivision. Hi-Gear's obligation to purchase this land was contingent upon it "obtaining approval to create three lots on the land proposed by the Development." Further, Hi-Gear agreed that it would "hold [plaintiffs] harmless in the event that the Subdivision is rejected" and recognized that plaintiffs were "not obligated financially or legally" to the development.

In mid-April 2007, a subdivision application was submitted to the Board spanning the two parcels. The first Board hearing occurred in July 2007; eleven hearings in all were held, concluding in June 2008. During that process, the subdivision plan was modified on a number of occasions in an attempt to meet the objections interposed by surrounding property owners, many of which dealt with issues of drainage and wetlands delineation. In its final form, Hi-Gear proposed to build a total of twenty-four single-family homes. In April 2008, the Board voted to deny the application in light of the fact that Hi-Gear had been unable to produce a letter from New Jersey American Water Co. that it could supply water to the proposed development.

In May 2008, the Board permitted Hi-Gear to re-open its application, and in June Hi-Gear presented to the Board the requested confirmation from the water company. The Board nonetheless again voted to deny the application, citing concerns about the lack of an active recreation area, water runoff problems experienced in the neighborhood, and concerns about the preservation of mature trees. When Hi-Gear elected not to seek judicial relief from this denial, plaintiffs filed the two-count complaint to which we referred at the outset. Neither of the orders that plaintiffs challenge on appeal deal with the substantive merits of their charge that the Board acted arbitrarily, capriciously and unreasonably when it denied this application. We are thus not called upon in this appeal to deal with the legal merits of the Board's ultimate decision to deny this application.

After defendants filed their answers to this complaint, the trial court held a case management conference to structure the litigation. It directed that the initial question to be addressed was the second count of plaintiffs' complaint, which sought to have Hi-Gear held responsible to pay their counsel fees. This, the trial court held, was to be decided on cross-motions for summary judgment.

Plaintiffs argue on appeal both that the trial court's direction that the counsel fee issued be decided first was incorrect and that the trial court's decision on the merits of that issue was also incorrect. We disagree with plaintiffs with respect to both contentions.

There is a facial appeal to plaintiffs' contention that the trial court should have withheld dealing with the issue of counsel fees until it addressed the first count of their complaint. Particularly in the context of this matter, however, we can see no error in the trial court's approach. We note initially that Rule 4:69-4, dealing with the management of actions in lieu of prerogative writs, specifically directs the managing judge to establish a briefing schedule. In our judgment, it is in the inherent power of such a managing judge to direct the order in which issues shall be addressed. Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 488 (App. Div. 2000) (recognizing that "[t]he right of a trial court to manage the orderly progression of cases before it has been recognized as inherent in its function"). The decision to proceed in this fashion was essentially a discretionary determination, and we can see no abuse of the trial court's discretion in this regard.

Turning to the court's analysis of the underlying merits of the question, we are satisfied that the trial court was correct in that regard as well. We reject plaintiffs' contention that the contractual language obligating Hi-Gear to "pay all expenses required to gain approval and develop" the subdivision also obligated it to incur counsel fees to pursue litigation once the initial application was denied.

Certain basic principles guide our review of this issue on contract interpretation. It is settled that "[w]ords and phrases are not to be isolated but related to the context and the contractual scheme as a whole, and given the meaning that comports with the probable intent and purpose." Republic Bus. Credit Corp. v. Camhe-Marcille, 381 N.J. Super. 563, 569 (App. Div. 2005) (quoting Newark Publishers' Ass'n v. Newark Typographical Union, 22 N.J. 419, 426 (1956)). The contract, moreover, "must be read as a whole, in 'accord with justice and common sense.'" Cumberland Cnty. Improvement Auth. v. GSP Recycling Co., 358 N.J. Super. 484, 497 (App. Div. 2003) (quoting Krosnowski v. Krosnowski & Garford Trucking, Inc., 22 N.J. 376, 387 (1956)).

In the quest for the common intention of the parties to a contract the court must consider the relations of the parties, the attendant circumstances, and the objects they were trying to attain. An agreement must be construed in the context of the circumstances under which it was entered into and it must be accorded a rational meaning in ...


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