NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...