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Majestic Contracting, LLC v. William H. Nunziato and the Township of Howell

November 18, 2011

MAJESTIC CONTRACTING, LLC, PLAINTIFF-APPELLANT,
v.
WILLIAM H. NUNZIATO AND THE TOWNSHIP OF HOWELL, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2541-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 7, 2010

Before Judges Graves, Messano, and Waugh.

Plaintiff Majestic Contracting, LLC (Majestic), appeals from the order of the Law Division dismissing its action in lieu of prerogative writs challenging the actions of defendant William H. Nunziato, Jr., in his capacity as the municipal engineer of defendant Township of Howell, in requiring certain actions prior to signing the subdivision plat for Majestic's subdivision known as Evergreen Estates. Majestic also challenges the validity of the Township's ordinances requiring a developer agreement, drainage-basin maintenance escrow agreement (escrow agreement), and tree removal and replacement approval. We affirm as to all issues except the escrow agreement. We hold that the amount of the escrow required by Howell with respect to the drainage basin was beyond its statutory authority. We reverse with respect to the escrow agreement, but remand to the Law Division for consideration of whether Majestic waived or is estopped from asserting entitlement to a refund.

I.

We discern the following facts and procedural history from the record on appeal.

Majestic is a developer of residential properties. It applied to the Howell Township Planning Board (Board) for preliminary and final approval for the Evergreen Estates subdivision, which consists of eight building lots and one open-space lot containing a drainage basin. Because the proposed subdivision required the removal of trees, Majestic was also required to submit a woodlands management plan to the Board. Howell, N.J., Code § 188-193(B)(1).

The Board held a public hearing on Majestic's application in October 2005. On November 3, it adopted a resolution granting preliminary and final major subdivision approval and also woodlands management approval. In the resolution's findings of fact, the Board noted that Majestic had "agreed to comply with all recommendations by the Township's Certified Tree Expert." The resolution also contained the following conditions to the Board's approval:

2. Except where specifically modified by the terms of this Resolution, the Applicant shall comply with all recommendations of the Board Consultants contained in the reports as set forth on the attached Exhibit List.

7. The Applicant shall comply with all recommendations from the Township's Certified Tree Expert with regard to landscaping and Woodlands Management approval.

11. Subject to all other applicable rules, regulations, ordinances and statutes of the Township of Howell, County of Monmouth, State of New Jersey or any other jurisdiction.

Majestic subsequently applied for amended subdivision approval, seeking to substitute septic systems for public sewer connections. Following a public hearing in July 2006, the Board adopted a resolution on August 17, granting approval to the amended plan, allowing the substitution of septic systems for public sewers.*fn1 The second resolution contained language similar to the initial resolution.

Significantly for the purpose of this appeal, neither of the Board's resolutions specifically required Majestic to sign a developer's agreement or an escrow agreement, or to file deeds of easements in conformance with the final subdivision map. Nunziato advised Majestic in a May 17, 2007 letter that it was required to enter into both a developer's agreement and an escrow agreement. The amount eventually calculated for the escrow agreement was $224,000.85. Nunziato's letter also required Majestic to prepare and submit five deeds for approval and recording with the subdivision plat. The deeds were to reflect dedication of the drainage-basin property to the Township, perimeter buffer and conservation easements, conservation easements for riparian buffer, and a shade tree and utility easement. Nunziato informed Majestic that he would not sign the subdivision plat map until the escrow agreement, the developer's agreement, and the deeds were submitted and approved.

In December 2006, Howell's tree expert submitted a summary report reflecting that his tree count was at variance with Majestic's approved woodlands management plan. According to the report, 165 more trees were to be removed than would be replaced. Consequently, Majestic was required to pay $49,500 to the Township's tree fund pursuant to Howell, N.J., Code § 188-195(C). Majestic made the required payment in April 2007.

In May 2008, Majestic filed an action in lieu of prerogative writs. The complaint alleged that, because the Board lacked the authority to delegate technical matters to Township officials, requirements imposed by Nunziato and the tree expert were ultra vires and unenforceable. It further alleged that certain municipal ordinances were invalid as ultra vires, preempted by State statutes, or contrary to the purposes of the Municipal Law Use Law (MLUL), N.J.S.A. 40:55D-1 to -136, specifically N.J.S.A. 40:55D-2. Finally, Majestic alleged that the conditions at issue were invalid because they were imposed by municipal officials after the Board's approval of Majestic's application.

Following discovery and the denial of motions for summary judgment filed by both sides, the case was tried over five days in September and October 2009. On October 15, the trial judge delivered an oral decision rejecting Majestic's arguments. She determined that (1) the challenged ordinances were valid, (2) the Board's delegation of limited authority to Township officials was permissible, and (3) the conditions imposed on the approval were reasonable. The judge further concluded that, in any event, Majestic's claims were procedurally barred because it failed to appeal the conditions under the appellate process outlined in the Township's ordinances. Howell, N.J., Code § 188-203. The judge entered an order of dismissal on October 27, 2009.

This appeal followed. We denied Majestic's application for summary disposition.

II.

Majestic argues on appeal that the trial judge erred in dismissing its complaint.

When we review a decision reached by a trial judge following a bench trial, "[t]he general rule is that [factual] findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). We do not disturb the factual findings of the trial judge unless we are "'convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Id. at 412 (quoting Rova Farms, supra, 65 N.J. at 484); see also Beck v. Beck, 86 N.J. 480, 496 (1981). However, we review issues of law decided by the trial courts on a de novo basis. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

Majestic's appeal is broadly focused on four items required by the Township's engineer prior to his execution of the subdivision plat: (1) the execution of a developer's agreement;

(2) the execution of an escrow agreement; (3) the required payments to the Township's tree fund based upon the calculations of the Township's tree expert; and (4) the preparation and execution of the five deeds. With respect to the developer's agreement, the escrow agreement, and the five deeds, Majestic argues that the Township's engineer acted improperly because the items were not specifically made conditions of the subdivision approval granted by the Board. Majestic also argues that the ordinances requiring the developer's agreement, the escrow agreement, and the tree fund payment are invalid. ...


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