October 11, 2011
WOODMONT PROPERTIES, PLAINTIFF-APPELLANT,
MEOLA BUILDERS, INC., AND THE PLANNING BOARD OF THE TOWNSHIP OF DENVILLE, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1326-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 14, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
In this land use case, plaintiff, Woodmont Properties, appeals from two final judgments of the Law Division dismissing its complaint. By order of January 2, 2008, Judge B. Theodore Bozonelis rejected Woodmont's prerogative writs challenge to the Denville Planning Board's (Board) approval of a conforming four-lot subdivision of an adjoining property owned by defendant, Meola Builders, Inc. (Meola), finding it was not arbitrary, capricious, or unreasonable. Following a bench trial, by order of September 23, 2010, Judge Rosemary E. Ramsay dismissed the balance of Woodmont's complaint alleging breach of contract against Meola in failing to submit a joint application to develop their two parcels, finding the parties did not reach a meeting of the minds on the essential terms. We affirm.
On February 12, 2007, Meola filed an application for a four-lot preliminary major subdivision for its property known as Block 20202, Lot 12 in Denville. Following a public hearing on February 28, 2007, the Board unanimously voted to approve the application, memorialized in a resolution adopted on April 11, 2007.
On May 9, 2007, Woodmont filed a three-count complaint in the Law Division alleging, in the first count, a prerogative writs challenge to the Board's approval of Meola's subdivision, and in the second and third counts, a breach of contract claim against Meola. The second count sought specific performance and the third count sought damages for breach of contract. Defendants filed answers. Judge Bozonelis then bifurcated the case between the prerogative writs count and the contract counts, commencing with the prerogative writs claim. Following argument on November 30, 2007, he denied Woodmont's motion to expand the record and file an amended complaint and Meola's motion to expand the record, sustained the Board's approval of Meola's preliminary major subdivision application, and dismissed, with prejudice, the first count of Woodmont's complaint. A memorializing order was entered on January 2, 2008.
The trial on the remaining claims was held before Judge Ramsay on April 21 and 22, 2010. On September 3, 2010, the judge rendered an oral decision finding in favor of Meola and dismissing the balance of Woodmont's complaint with prejudice. A memorializing final judgment was entered on September 23, 2010. This appeal ensued.
On appeal, Woodmont asserts the following arguments in connection with its prerogative writs claim: (1) the Board's refusal to grant Woodmont an adjournment was unreasonable under the circumstances and requires a remand; (2) the standard of review does not require deference to the Board or trial court on questions of law or legal consequences; (3) the court erred when it denied Woodmont's motion to expand the record; (4) the court erred in its finding that the Board considered the impact of the Meola subdivision application on the Woodmont lot; (5) even if the Board did consider the impact, the court erred in finding the Board's decision was not arbitrary; and (6) to the extent the Board found there were other options for obtaining access to the Woodmont lot or that the access issue was self-created, its findings were arbitrary, not based on evidence in the record, and should have been disregarded.
In the contract action, Woodmont argues the court's conclusion that there was not an enforceable contract was reversible error because it was not based on adequate, substantial and credible evidence in the record.
We are not persuaded by any of Woodmont's arguments. Based on our review of the record and applicable law, we are satisfied the Board's and courts' determinations are amply supported by the record.
I. Prerogative Writs Claim
The Meola lot contains approximately six acres and has frontage on Mount Pleasant Turnpike. The adjoining Woodmont lot,*fn1 designated as Block 20202, Lot 2, consists of approximately two and one-half acres, and is located to the south of Meola's property. It is land-locked and does not have access to Mount Pleasant Turnpike or any existing roadways.
In or around August 2006, Meola filed an application with the Board for preliminary major subdivision to create a four-lot single-family development that conformed to all pertinent zoning requirements, did not require variances, and did not impact steep slopes, wetlands or flood zones. The proposed subdivision did not provide access to the Woodmont parcel so it did not enable the Woodmont parcel to gain access to any surrounding roadways through Meola's property. The application was withdrawn shortly afterwards when Woodmont's principal, Donald Witmondt, approached Meola's principal, Michael Meola, Sr., to discuss potential coordination of a joint project whereby Woodmont could gain access to Mount Pleasant Turnpike through Meola's property. Woodmont proposed a new six-lot subdivision plan by which Meola would obtain four lots and Woodmont would obtain two lots, and access would be created by extending the proposed cul-de-sac to run from Meola's lot to Woodmont's lot.
Meola decided against submission of Woodmont's proposed plan and sent
the requisite ten-day statutory notice that it was pursuing its
original four-lot application with the Board at a public hearing
scheduled for February 28, 2007. N.J.S.A. 40:55D-12b.*fn2
By letter of February 21, 2007, Woodmont requested a
thirty-day adjournment of the hearing, advising it had learned the
prior week that Meola was unwilling to proceed with the joint
subdivision application and it needed time to prepare its opposition
to Meola's application. Meola opposed the request, emphasizing that
Woodmont was familiar with the application as a result of the
numerous, albeit unsuccessful, discussions between the parties to
negotiate a subdivision involving both of their properties.
At the outset of the public hearing on February 28, 2007, the Board considered and unanimously denied Woodmont's adjournment request. The Board noted Woodmont's longstanding familiarity with Meola's proposed four-lot subdivision and its apparent readiness to present expert testimony at the hearing in opposition to the application. The Board concluded the requisite ten-day statutory notice provided Woodmont adequate time to prepare opposition to the application.
At various times throughout the hearing, Meola's witnesses and Board members stated that the only application before the Board was the conforming four-lot subdivision presented by Meola and that testimony regarding Woodmont's six-lot plan was presented solely for background purposes and for completeness of the record. Meola presented the testimony of Michael Meola, Jr., a corporate officer, who advised the general plan was to construct four single-residence homes on a small cul-de-sac on its parcel. Meola's engineer, Thomas Graham, who had prepared both the four- and six-lot subdivisions, detailed the specifics of each plan. He explained that Meola ultimately decided against submission of Woodmont's proposal due to concerns relating to design, complexity, increased costs and increased traffic, noting, for example, that Woodmont's plan would require a second detention basin and retaining wall, an additional wetland permit, additional individual pumping stations for the sanitary sewer system, and the extension of the cul-de-sac by about 300 feet.
Peggy Lefsky, a real estate agent, testified as to the desirability of Meola's proposed single-builder four-lot subdivision from a marketing standpoint as opposed to the less desirable Woodmont plan that had been the subject of prior negotiations between the parties.
Nicholas Rosania, the Board's engineer, favorably reported that Meola's application was "pretty plain vanilla" as it conformed to all zoning requirements and had no steep slope, wetlands or flood zone issues.
Following the public portion of the meeting, Woodmont presented its position as an objector, cross-examining Meola's witnesses and calling its own engineer, Steven Varneckas, and planner, George Ritter. Although Woodmont's counsel acknowledged the Board did not have the authority to grant the six-lot subdivision plan, its primary presentation involved the merits of that plan. It was undisputed by Woodmont's experts that the parcel was currently without access to any surrounding roadways -- in other words that it would be landlocked whether Meola's parcel remained undeveloped or its four-lot subdivision were approved. In response to the Board's numerous requests that Woodmont focus on the effect of Meola's application on the Woodmont property, Varneckas testified it would "make sense" for both properties to use the same right-of-way and develop the land at the same time and Ritter testified it was "good planning" to grant the landlocked parcel access through the Meola parcel.
As reflected in the Board's comments throughout the hearing and, particularly, the detailed recitation of the testimony contained in the Resolution, the Board considered Woodmont's landlocked quandary but was not convinced Meola's conforming preliminary major subdivision application should be denied simply because it did not provide access for Woodmont's parcel. As stated in the Resolution, Meola's application did not create the landlocked parcel and the status of the Woodmont parcel would remain unchanged if the application were approved.
In affirming the Board's decision, Judge Bozonelis found the Board had properly addressed and considered the landlocked parcel/access issue in accordance with the dictates of the Supreme Court in Pizzo Mantin Grp. v. Twp. of Randolph, 137 N.J. 216, 232-33 (1994), which contemplated active involvement by planning boards in imposing conditions on conforming subdivisions based on their expertise and familiarity of local conditions. The court rejected Woodmont's argument that the Board made an erroneous decision because it thought it was not permitted to put a condition on Meola's application, referencing the totality of both the hearing and Resolution. Judge Bozonelis explained,
[The Board] didn't ignore it. The record shows that they considered it, sympathized with [Woodmont's landlocked quandary], but they didn't feel that they needed to put a condition on [Meola's subdivision approval].
This is not a case where the board was unaware or somehow ignored the property owner of Lot 2, didn't take any testimony, actually had a six-lot subdivision plan before it, so certainly considered those particular issues and decided not to impose that condition in that regard with respect to creating a cul-de-sac, and heard the testimony why the six-lot plan would not be better than . . . the four-lot plan.
My charge is not to substitute my judgment, my charge is was their action arbitrary based upon the evidence they had before it.
The judge interpreted the language in the Resolution -- that the Board was only able to consider the four-lot subdivision -- as referring to the fact that was the application before it, rather than the six-lot subdivision, not that the Board was unable to consider the landlocked nature of the adjacent property. He recognized that, in a perfect world, the Resolution would have been worded more precisely, stating:
Should the resolution have said, and by the way, we considered the landlocked issue, under Pizzo Mantin we have discretion to consider all the surrounding property in terms of the better design standards and the like, even though the application is conforming and meets subdivision approval, and we determined to grant the four-lot subdivision anyway? Sure, that would have been better.
Nonetheless, based on his review of the record, Judge Bozonelis was satisfied extensive evidence was presented with regard to the landlocked issues, which was considered by the Board. Accordingly, the judge concluded the Board's decision to approve the Meola subdivision application without making provision or condition for access to the Woodmont parcel was not arbitrary.
We first dispose of Woodmont's argument that Judge Bozonelis erred in denying its motion to expand the record to introduce a title report of the commercial property to the east of its parcel (Lot 16) to demonstrate it was in condominium ownership. In its resolution the Board found Woodmont could pursue access through that property as both were owned by the same entity. In denying the motion, the judge found that fact was not relevant to the undisputed fact that the Woodmont parcel was landlocked and to the overall issue of its access through the Meola parcel.
We afford substantial deference to the trial judge's discretion on evidentiary rulings. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. l999), certif. denied, l63 N.J. 79 (2000). As a general rule, the trial court's ruling will not be disturbed unless there is a clear abuse of discretion. Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. l99l). Evidential determinations should not be overturned on appeal "'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted.'" Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)). We are satisfied from our review of the arguments and the record that Judge Bozonelis did not abuse his discretion in limiting the record to the evidence presented to the Board.
We turn now to Woodmont's challenges to the Board's decisions. We accord substantial deference to the decision of a local planning board, as did the trial court. See Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding appellate courts are bound by the same scope of review as the Law Division and should defer to the local land-use agency's broad discretion). This deference arises from the fact that local citizens are more familiar with and better equipped to determine how to serve the needs of their community; it is not the court's role to substitute its judgment for that of the land use board. ScullyBozarth Post # 1817 of the Veterans of Foreign Wars of the U.S. v. Planning Bd. of Burlington, 362 N.J. Super. 296, 314 (App. Div. 2003).
"A 'local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable.'" CBS Outdoor, Inc. v. Lebanon Planning Bd., 414 N.J. Super. 563, 577 (App. Div. 2010) (quoting Kramer v. Sea Girt Bd. of Adjustment, 45 N.J. 268, 296 (1965)). The "arbitrary and capricious" standard is analogous to the substantial evidence standard. Cell v. Zoning Bd. of Adjustment, 172 N.J. 75, 89 (2002). In other words, factual determinations by the board are presumed to be valid, and the board's decisions based on those facts will not be considered arbitrary if they are supported by "adequate evidence" in the record. Burbridge v. Governing Body of Mine Hill, 117 N.J. 376, 385 (1990); Fallone Properties, L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 562 (App. Div. 2004). The burden of proof that the action of the board was arbitrary, capricious or unreasonable rests upon the plaintiff. Cell, supra, 172 N.J. at 81-82.
The Board acted well within its discretion in declining to adjourn Meola's application. It is undisputed Woodmont was provided the appropriate statutory notice of the hearing. Moreover, in view of the discussions between Meola and Woodmont in the five months following Meola's initial submission of the subdivision application, it is clear Woodmont was extremely familiar with every aspect of the proposed four-lot plan. Woodmont appeared at the scheduled hearing represented by counsel and ready to present the testimony of a planner and engineer. Accordingly, Woodmont cannot demonstrate that it suffered any prejudice by having to present its objection on February 28, 2007.
Woodmont's discussion of the de novo standard of review for a legal determination by a board, Wyzykowski v. Rizas, 132 N.J. 509, 518 (1993), is inapplicable, as the Board here did not interpret an ordinance or otherwise analyze questions of law. The appropriate standard of review in this case is the more lenient arbitrary, capricious, and unreasonable standard.
Our assessment of the record is similar to that articulated by the trial court and to that extent we affirm substantially for the reasons set forth by Judge Bozonelis in his comprehensive oral opinion. We add the following brief comments. The Resolution clearly could have provided a more thorough explanation of the Board's thought process. However, considering the record in its totality, we are not convinced the Board put blinders on, as suggested by Woodmont. The Board was familiar with the area and the fact that the parties had unsuccessfully attempted to negotiate a joint subdivision application. The members actively reviewed Meola's subdivision application with the knowledge they had the authority to impose conditions on the approval under Pizzo Mantin. In fact, the Board did respond, for example, to the concern of one of the neighbors about oncoming headlights shining directly into his home based on the configuration of the proposed roadway. The Board included as an express condition of the approval that Meola provide additional landscape buffering, if determined necessary by the township engineer, and explored shifting the proposed roadway.
As is evident from the repeated requests for information on this issue, the Board did consider the impact of Meola's subdivision application on the landlocked Woodmont parcel. However, the only way Woodmont proposed that its parcel be provided access was by way of a completely different plan, not by a minor tweak or condition to the subdivision plan before the Board. Accordingly, the Board determined, within its discretion, that it did not have the power to deny the application before it because the Woodmont property was already landlocked, and affording it access would require a complete redesign of Meola's subdivision plan that currently conformed to all pertinent zoning requirements, did not require variances, and did not impact steep slopes, wetlands or flood zones. See Pizzo Mantin, supra, 137 N.J. at 226 (holding that a board is obliged to grant preliminary approvals for proposed developments that comply with all ordinances and require no variances or waivers); N.J.S.A. 40:55D-48 ("The planning board shall, if the proposed subdivision complies with the ordinance and [the Municipal Land Use Act], grant preliminary approval to the subdivision.").
As Judge Bozonelis noted in ruling on Woodmont's motion to expand the record, the Board's comments in the Resolution regarding Lot 16 were gratuitous and had no bearing on the Board's consideration of the Meola application. The offhand observation by the Board member and statement in the Resolution about the "for sale" sign on Lot 2 to the west and suggestion that it could be purchased by Woodmont for access were similarly inconsequential.
II. The Breach of Contract Action
At the two-day trial before Judge Ramsay, Woodmont presented the testimony of Stephen Santola, its executive vice president and general counsel, and Varneckas.*fn3 Meola presented the testimony of its attorney on the subdivision application, Richard Oller, Witmondt, Meola, Jr., and Meola, Sr.
The various witnesses testified about the initial meeting at town hall on September 7, 2006, when Widmondt informed Meola, Sr. of his intention to appear as an objector at the imminent Board hearing to address the issue concerning his landlocked property and suggested the parties discuss a six-lot subdivision in which the road would be extended to provide access to the Woodmont property.
Witmondt, Santola and Oller then had a twenty-minute meeting at Oller's office on September 11, 2006, and correspondence ensued between the attorneys. Oller informed the Board of the negotiations and requested Meola's application be removed from the September 13, 2006 agenda and executed an extension of time for the Board to act through January 31, 2007. A series of letters ensued between counsel and Widmondt retained Graham to prepare a revised subdivision plan reflecting a sixlot configuration. Several of the witnesses, who later testified before the Board, had conversations during this time period. Meola, Sr. ultimately determined, among other reasons, that it was not in his best interest economically to proceed with the six-lot subdivision, and re-filed Meola's original four-lot subdivision application with the Board.
Woodmont's position was that the exchange of letters following the September 11, 2006 meeting constituted the entire, binding contract to proceed with the proposed six-lot subdivision joint venture, and Meola's actions constituted a breach of contract. Meola's position was the exchanged letters were a starting point to ascertain if the parties were in the same ballpark and, if they were, they would flesh out the specific details in a formal agreement that Santola would draft, but never did. Meola also posited he did not obligate himself to go forward with the six-lot subdivision; he had the option of analyzing all the factors in light of the relevant information and determining whether it was advantageous to him. At trial, Witmondt acknowledged that in depositions he testified his understanding after the meeting was that if the new plan "worked for [the Meolas] and it didn't cost them any more money, that we had a basis on which we could have an agreement."
The trial judge made credibility assessments, finding on certain minor issues regarding the September 11, 2006 meeting that both Santola and Oller lacked credibility. Nonetheless, she was persuaded "collectively[,] the written communications following the [September 11, 2006] meeting belie [Woodmont's] contention that the parties reached an agreement at the meeting." With detailed references to the record and citation to case law, the judge concluded that Woodmont "failed to establish the existence of an enforceable contract for submission of an application for a six-lot subdivision to the . . . Board" as there was not a meeting of the minds on reasonable and certain material terms of the agreement and an unconditional written acceptance from Meola to submit an application for a six-lot subdivision to the Board.
Judge Ramsay pointed out, for example, the language in Oller's initial letter to Santola immediately following the September 11, 2006 meeting, summarizing the meeting, detailing his discussions with Meola, Sr. and stating, in relevant part:
Your client has requested that Mr. Meola adjourn the application for preliminary subdivision in order to explore the possibility of combining lots 12 and 2, thereby creating a six lot subdivision. Your client has claimed that lot 2 is otherwise land locked.
I have had the opportunity to speak with Mr. Meola since our meeting of this morning and Mr. Meola is agreeable to adjourning Wednesday's hearing until January 2007, so that our clients can properly explore the possibility of creating the six lot subdivision by combining their properties.
The balance of this letter discusses items to which we need to form[al]ly agree upon, most of which we discussed at our meeting, some of which were raised by Mr. Meola during my telephone conversation with him. The items for discussion and inclusion into a formal agreement are as follows:
Would you please review the foregoing with Mr. Widmondt and advise me if same is a reasonable starting point from which to draft an agreement. If so, I will adjourn the hearing scheduled for this Wednesday evening. [Emphasis added.]
The judge found particularly compelling that Santola's responding letter of the same date made no mention that an agreement had already been reached during the meeting. Moreover, he used the term "offer," ("In response to your letter we offer the following") which has legal implications in contract law, agreeing to certain terms in Oller's letter but not agreeing to all those items unconditionally. In addition, although Santola stated he was "simply reword[ing] [Oller's] offer" regarding point number seven that required Widmondt to pay all other costs incurred as a result of adding its lot to the Meola subdivision, the proposal added qualifying language and an allocation of costs, which the trial judge found "pertained to material issues associated with the cost of creating a six lot subdivision."
Oller's letter to the Planning Board was consistent with his letter to Santola, explaining Meola was "recently contacted by an adjoining property owner with a request to include their property into the proposed subdivision" and Meola "will attempt to accommodate that request and, therefore, anticipates filing a revised subdivision plan." The judge found Meola's conduct reflected "only an acceptance of an agreement to consider a six lot subdivision submission" and he "did not offer or unconditionally accept any offer to submit an application for a six lot subdivision."
Moreover, on September 12, 2006, Oller forwarded Santola a copy of the letter he sent to the Board and requested he draft the agreement, which Oller would then review and edit. By letter of September 18, 2006, Santola informed Oller that Woodmont was "diligently moving towards preparing a new plan" and, in the meantime, he would prepare a draft agreement for Oller's review. It is undisputed Santola never prepared the agreement. As Meola, Sr. testified, he was not satisfied with the layout of the houses on his four lots in the proposed sixlot plan and he was concerned with the impact of the revised layout on the sales price of the homes. Based on the totality of the testimony and evidence presented, the judge was satisfied Meola, Sr. did not agree to "submit a six lot subdivision plan regardless of the economic consequences that redesigned subdivision would have on the resale value of [his] lots[,]" nor was he legally obligated to do so.
Our scope of review of a judgment in a non-jury case is extremely limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial and credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We accord due deference to the credibility findings and the "feel of the case" by the trial judge who has heard and observed the witnesses, particularly regarding questions of credibility. Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (l989); Fritsche v. Westinghouse Electric Corp., 55 N.J. 322, 330 (1970); Metuchen Sav. Bank v. Pierini, 377 N.J. Super. 154, 161 (App. Div. 2005). An appellate court should not second-guess factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms, supra, 65 N.J. at 484 (internal quotation marks omitted).
We have reviewed Woodmont's challenges to the credibility assessments and factual findings made, and inferences drawn by the trial judge in arriving at her legal conclusion that Woodmont failed to sustain a breach of contract claim. From our review of the record we are satisfied Judge Ramsay carefully assessed the testimony and evidence in making her factual findings and legal conclusions that there was no meeting of the minds as to material terms of an agreement that would obligate Meola, Sr. to discard his four-lot subdivision in favor of Woodmont's six-lot plan. The letters clearly contemplated subsequent negotiations and a formal written agreement, which was never prepared by Woodmont's attorney. Such findings and conclusions are amply supported by the record and based upon the applicable law. Accordingly, we will not disturb them on appeal.