July 11, 2013
TOLL BROTHERS, INC., Plaintiff-Appellant,
TOWNSHIP OF WEST WINDSOR, MAYOR AND COUNCIL OF THE TOWNSHIP OF WEST WINDSOR and PLANNING BOARD OF THE TOWNSHIP OF WEST WINDSOR, Defendants-Respondents. AFFORDABLE LIVING CORPORATION, Plaintiff,
MANEELY, INC., Intervenor, and DR. AND MRS. CHARLES AXSELRAD, Intervenors-Appellants,
TOWNSHIP OF WEST WINDSOR, Defendant/Third-Party Plaintiff-Respondent, and NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Third-Party Defendant-Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 29, 2013.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-07812-84 and L-2123-93.
William T. Sutphin argued the cause for appellants Dr. and Mrs. Charles Akselrad.
Karen L. Cayci argued the cause for respondents Township of West Windsor and Mayor and Council of the Township of West Windsor (Herbert, Van Ness, Cayci & Goodell, P.C., attorneys; Ms. Cayci, of counsel and on the brief).
Joan M. Scatton, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Scatton, Deputy Attorney General, on the brief).
Law Offices of Miller Porter & Muller, P.C., attorneys for respondent West Windsor Township Planning Board (Gerald J. Muller, on the brief).
Before Yannotti, Harris and Hoffman, Judges.
Charles and Alexandra Akselrad appeal from an order dated December 2, 2011, dismissing their claims against the New Jersey Department of Environmental Protection (NJDEP), and an order dated April 13, 2012, granting summary judgment to the Township of West Windsor, Mayor and Council of the Township, and the Township's Planning Board (collectively, the Township). For the reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.
A. The Agreement Between the Township and the Akselrads.
In November 2008, the Township entered into an agreement with the Akselrads to settle certain litigation in which they were then engaged. Among other things, the agreement stated that the Township and the Akselrads had an interest in exchanging certain real property owned by the Township for property owned by the Akselrads, along with a cash payment by the Akselrads of $700, 000.
The agreement acknowledged that the Township's exchange property was subject to certain restrictions established by the New Jersey Green Acres Land Acquisition and Recreation Opportunities Act, N.J.S.A. 13:8A-35 to -55, which prevented the Township from transferring the property in exchange for the Akselrads' parcel. The agreement indicated that the Township previously had endeavored, through litigation and negotiation, to have the Green Acres restrictions removed, but it had not succeeded in doing so.
The Township agreed to submit within three months from the date of execution of the agreement, a pre-application to the NJDEP's Green Acres program for removal of the restrictions from its exchange property. The Township also agreed that it would comply with the NJDEP's regulation governing the pre-application "in good faith to the extent it deem[ed] reasonable."
The agreement stated that, in preparing its pre-application and responding to any requests for information from the NJDEP's Green Acres program, the Township would not be obligated "to incur any expense including any costs for appraisals, surveys, purchase of properties or environmental studies" or make "a substantial change in the Township's proposed affordable housing or open space program" which required "the expenditure of substantial amounts of time by Township staff."
The agreement provided that if at any stage of the application process, the Township was
unwilling to fund the cost(s) of retaining third party professionals to provide supplemental or additional information requested by Green Acres, it must promptly provide Akselrad with written notice of any such decision. In each such event, Akselrad shall have the right but not the obligation to fund the costs of providing such supplemental or additional information and, if it agrees to do so, the Township shall be obligated in good faith to seek removal of the [r]estriction[s].
In addition, the agreement stated that the Township would furnish the Akselrads with monthly written reports of the status of its efforts to have the Green Acres restrictions on the property removed. The agreement provided that
in the event that Green Acres does not approve the application or makes such requests for revisions as the Township deems in good faith that it cannot reasonably address without the expenditure of additional monies, the Township shall not be obligated to make any additional effort with respect to removal of the [r]estrictions and shall be deemed to have complied with its obligations under this [a]greement with respect to its efforts to obtain removal of the [r]estrictions . . . .
The agreement also indicated that if the Township was able to accomplish the removal of the Green Acres restrictions on its exchange property within three years after execution of the agreement, the parties would exchange the properties, as provided in the agreement. The agreement further indicated that if the restrictions were removed by voluntary action within four to ten years after the agreement was executed, the Township would offer the Akselrads the opportunity to proceed with the property exchange within a specified period of time.
B. The Akselrads' Complaint.
On August 18, 2011, the Akselrads filed a four-count complaint against the Township. In count one, the Akselrads claimed that the Township never filed a formal pre-application with the NJDEP for removal of the Green Acres restrictions and never provided any monthly reports concerning the status of its efforts to have the restrictions removed. The Akselrads sought an order reforming the agreement and extending their rights under the contract for an additional period of time to allow them to satisfy the pre-application requirements of N.J.A.C. 7:36-26.9.
In count two, the Akselrads asserted that the parties intended that, upon the anticipated property exchange, the Township's lot would be developed as a low-rise, multi-family development with sixty units. They claimed that this part of the agreement was based on the Township's representation that its lot was comprised of 7.5 acres of land.
According to the Akselrads, the property contains only 6.244 acres, and as a result, it could only be developed with fifty units, under the Township's existing zoning restrictions. The Akselrads sought a judgment reforming the agreement so that "the consideration to be received by [the Township] will be proportional to the actual development of the Township's 6.244 acre property . . . ."
In addition, in count three, the Akselrads alleged that the Township had advised them that it would not expend the necessary time and effort or pay the expenses required to have the Green Acres restrictions removed. The Akselrads sought a judgment reforming the agreement and directing the Township to formally authorize them to act on the Township's behalf to satisfy the NJDEP's application requirements, and to provide a proportional reduction in the amount they are required to pay for the property exchange.
Furthermore, in count four, the Akselrads asserted a claim against the NJDEP for discovery. They alleged that the NJDEP and its attorneys had refused to allow NJDEP personnel to be deposed or provide any factual information to them. The Akselrads sought an order requiring the NJDEP to submit to discovery by producing Judeth P. Yeany, the Chief of the NJDEP's Green Acres program, for a deposition, to produce documents and other information, and to provide such other discovery as the court deemed appropriate.
C. The NJDEP's Motion to Dismiss.
On October 14, 2011, the NJDEP filed a motion to dismiss count four of the complaint. The motion judge decided that the NJDEP's motion should be granted because there was no need for the agency to be a party to the action for discovery purposes. The judge noted that the NJDEP had already produced Yeany for a deposition, and other depositions were scheduled. In addition, the agency had produced documents.
The judge stated that, in the event the Akselrads encountered any difficulties in securing additional discovery from the NJDEP, they could present the matter to the court. The judge entered an order dated December 2, 2011, granting the NJDEP's motion to dismiss.
The Akselrads later filed a motion for reconsideration and for leave to file an amended complaint. The Akselrads alleged that the NJDEP had improperly denied them discovery. The judge thereafter conducted a case management conference and entered an order directing the Township to file a motion for summary judgment. The judge adjourned the Akselrads' motion.
D. The Township's Motion for Summary Judgment.
The Township subsequently filed a motion for summary judgment. Another judge considered that motion on April 13, 2012, and rendered a decision from the bench on that date.
The judge found that the Township had done all that it was required to do under the agreement. The judge noted that, while the Township had not submitted a formal pre-application to the NJDEP pursuant to N.J.A.C. 7:36-26.9, the agency had treated a July 24, 2009 letter from the Township as a pre-application. The judge also noted that, while the agreement required the Township to provide the Akselrads with monthly reports of the status of its application, the Township did not do so because it had nothing to report.
The judge stated that "the crux of the matter" was that, after the NJDEP refused to remove the Green Acres restrictions on the Township's exchange property, the Township proceeded in good faith to identify replacement properties to which the restrictions could have applied, and worked with the Green Acres program to get approval for those replacement lands.
The judge said that under the agreement, the Township had flexibility in determining "how far to go" with the NJDEP in the application process, as long as it acted in good faith. The judge concluded that the Township had pursued the application in good faith.
The judge determined that summary judgment was appropriate, even though discovery had not been completed. The judge stated that it was unlikely a genuine issue of material fact would arise from additional depositions of the NJDEP's employees or additional information that the agency might produce.
The judge noted that the Akselrads had challenged the certifications of Daniel Dobromilsky and Samuel J. Surtees, which the Township had submitted in support of its motion. The Akselrads maintained that the certifications contained hearsay but the judge said that most of the statements in the certifications were not hearsay. The judge stated that Dobromilsky and Surtees
told [of] the efforts that they made to identify replacement lands, [and] put those replacement lands before [the NJDEP]. And, we know that [the NJDEP's] initial reaction from Ms. Yeany was that it's not adequate. That was [the NJDEP's] reaction, but under the agreement it was up to the Township to determine the extent [and] the reasonableness of the efforts. And, on the face of the efforts, [the efforts] were reasonable and taken in good faith . . . .
The judge therefore concluded that the Township was entitled to summary judgment, and the Akselrads' motion for reconsideration of the dismissal of their claim against the NJDEP and for leave to amend the complaint was moot. The judge memorialized her decision in an order dated April 13, 2012. This appeal followed.
We turn first to the Akselrads' contention that the judge erred by dismissing count four of the complaint, which named the NJDEP as a defendant for discovery purposes. The Akselrads contend that the judge erroneously found that the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -17, superseded and replaced the pre-trial discovery procedures authorized by the Rules of Court. The Akselrads also argue that they asserted a valid claim against the NJDEP for discovery under Rules 4:11-1 and 4:11-3.
We note initially that the Akselrads misinterpret the judge's reasoning. The judge acknowledged that the court rules permit a plaintiff to assert a claim against a defendant for the limited purpose of discovery. The judge determined, however, that there was no need to name the NJDEP as a party for discovery purposes and, for that reason, the claim against the NJDEP should be dismissed.
Where, as here, a party seeks dismissal under Rule 4:6-2(e) for failure to state a claim upon which relief can be granted, the trial court must determine whether the facts as alleged suggest a cause of action. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citing Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). The court's inquiry "is limited to examining the legal sufficiency of the facts alleged on the face of the complaint." Ibid. (citing Rieder v. Dep't. of Transp., 221
N.J.Super. 547, 552 (App. Div. 1987)). We apply this standard in reviewing the trial court's dismissal order. Seidenberg v. Summit Bank, 348
N.J.Super. 243, 250 (App. Div. 2002).
We are satisfied that the motion judge did not err by dismissing the Akselrads' claim against the NJDEP. In their complaint, the Akselrads alleged that the agency had informed them that it would not permit any officer or employee of the Green Acres program to be deposed or provide any factual information to them.
However, as the judge noted in her decision, when the NJDEP's motion to dismiss was considered, the agency had already provided the Akselrads with information they had requested and Yeany had been deposed. In addition, the Akselrads were going to take depositions of other NJDEP personnel. The judge pointed out that the Akselrads could seek further discovery from the NJDEP under the court rules.
We are satisfied that, under the circumstances, the judge correctly determined that the Akselrads had not stated a claim against the NJDEP upon which relief could be granted.
Next, the Akselrads argue that the judge erred by granting summary judgment in favor of the Township. They contend that the judge acted prematurely in granting summary judgment before discovery was complete.
Summary judgment may be granted when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 212 (1986)).
However, "'every litigant who has a bona fide cause of action or defense'" should be afforded an "'opportunity for full exposure of his case.'" Velantzas, supra, 109 N.J. at 193 (quoting United Rental Equip. Co. v. Aetna Life & Cas. Ins. Co., 74 N.J. 92, 99 (1977)). Therefore, it is "especially inappropriate to grant summary judgment when discovery is incomplete, " particularly when critical facts are with the knowledge of the party seeking summary judgment. Ibid. (citing Martin v. Educ. Testing Serv., Inc., 179
N.J.Super. 317, 326 (Ch. Div. 1981).
We are convinced that the judge erred by granting summary judgment in favor of the Township before the Akselrads had the opportunity to complete discovery. The judge found that, in seeking removal of the Green Acres restrictions on its exchange property, the Township had done all that was required of it under the settlement agreement. The judge noted that the agreement provided that the Township would comply with the regulation governing the pre-application process "in good faith to the extent it deems reasonable." The judge found that the evidence showed the Township acted reasonably and in good faith.
The factual record on these issues was, however, incomplete and it was premature for the judge to conclude that there was no genuine issue of material fact on these contested issues. As we have explained, the Township did not submit a formal pre-application pursuant to N.J.A.C. 7:36-26.9 to the NJDEP for relief from the Green Acres restrictions, even though the agreement stated that such an application would be submitted.
The Township nevertheless claimed that it informally sought relief from the Green Acres restrictions, and in doing so, identified and presented potential replacement lands to the NJDEP for its consideration. But, the Akselrads were not afforded the opportunity to complete discovery concerning all of the contacts between the Township and the NJDEP's Green Acres program regarding the Township's efforts to secure relief from the Green Acre's restrictions.
The judge reasoned that further discovery was unlikely to generate evidence that might raise a genuine issue of any material fact. We are convinced, however, that the Akselrads should have been afforded an opportunity to depose Dobromilsky concerning the statements in his certification, which related to the Township's interactions with the Green Acres representatives and the Township's efforts to secure lands that could be used to replace the property the Township had proposed to transfer to the Akselrads.
The Akselrads also should have been given an opportunity to depose Surtees concerning his efforts to secure the aforementioned replacement lands. In his certification, Surtees stated that in August 2009, the Township endeavored to acquire property owned by Princeton Research Lands, but the negotiations between the Township and Princeton Research reached an impasse and ended in January 2010. He added that, because of its financial situation, the Township was no longer considering the acquisition of open space with general revenue bonds.
Furthermore, the Akselrads should have been afforded the opportunity to obtain additional documents from the NJDEP concerning the Township's efforts to secure relief from the Green Acres restrictions. The Akselrads contend that they have not yet obtained documents that might memorialize the oral advice that the NJDEP allegedly gave to the Township concerning the application, or other documents that might bear on the reasonableness of the Township's efforts to secure relief from the Green Acres restrictions.
We are therefore convinced that the record before the trial court was insufficient for the court to determine whether there were any genuine issues of material fact as to whether the Township did all that was required under the agreement in seeking removal of the Green Acres restrictions, and whether the Township acted in good faith and reasonably in seeking the removal of those restrictions. We accordingly conclude that the judge erred by granting summary judgment to the Township before discovery was completed.
The Akselrads additionally contend that the NJDEP improperly removed certain documents from the Green Acres file and returned them to the Township. The Akselrads maintain that they are entitled to access to these documents under OPRA, the common law and the court rules.
In response, the NJDEP asserts that the records were not government records under OPRA because they contain confidential information. The NJDEP maintains that because the Township inadvertently disclosed these records, they were properly removed from the file and returned to the Township.
It appears that this issue was not addressed by the trial court. Moreover, we do not have a copy of the documents at issue, and the record does not indicate whether the documents were inadvertently submitted to the agency. We are therefore convinced that this issue should be addressed in the first instance by the trial court.
On remand, the court shall review the records in camera, and determine whether they are government records under OPRA or whether they come within the exception under OPRA for records "deemed to be confidential, " including "any record within the attorney-client privilege." N.J.S.A. 47:1A-1.1. The court shall determine whether the records were inadvertently disclosed to the NJDEP and whether the NJDEP acted appropriately in removing the records from its file and returning them to the Township. The court also shall consider the Akselrads' claim that they are entitled to these records under the common law and court rules.
Accordingly, we affirm the order dismissing the claim in count four against the NJDEP, and reverse the order granting summary judgment in favor of the Township. We remand the matter to the trial court for further proceedings. The court shall consider whether the Akselrads are entitled to access to the documents removed from the NJDEP's file. The Township may renew its motion for summary judgment after the Akselrads have had an opportunity to complete discovery.
Affirmed in part, reversed in part and remanded to the trial court for further proceedings in conformity with this opinion. We do not retain jurisdiction.