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Township of Readington v. Wilmark Building Contractors, Inc.

Superior Court of New Jersey, Appellate Division

November 18, 2013

TOWNSHIP OF READINGTON, Plaintiff-Respondent,
v.
WILMARK BUILDING CONTRACTORS, INC., and its heirs, devises, representatives, and successors in right, title and interest; THE EVERGREEN TRUST II, and its heirs, devises, representatives, and successors in right, title and interest; MARK W. HARTMAN, individually, as president of Wilmark Building Contractors, Inc. and as a trustee of the Evergreen Trust II; MELINDA MCPHAIL, individually and as a trustee of the Evergreen Trust II, Defendants-Appellants, and STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, GREEN ACRES PROGRAM, Defendants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 24, 2013.

On appeal from the Superior Court of New Jersey, Chancery Division, Hunterdon County, Docket No. C-14040-10.

Arnold C. Lakind argued the cause for appellants (Szaferman, Lakind, Blumstein & Blader, P.C., attorneys; Mr. Lakind, on the brief).

Valerie J. Kimson argued the cause for respondent (Mason, Griffin & Pierson, P.C., attorneys; Ms. Kimson, of counsel and on the brief).

Before Judges Sapp-Peterson, Nugent, and Haas.

PER CURIAM.

Plaintiff, Township of Readington, filed this action to quiet title to land that defendant Wilmark Contractors, Inc., through its president, defendant Mark H. Hartman, had deeded to the Township for open space ten years earlier when the Township's planning board approved Wilmark's development application for a major subdivision. The trial court granted summary judgment to the Township and dismissed the counterclaim of Wilmark, Hartman, and the other defendants, The Evergreen Trust II and Melinda McPhail, on the basis of the entire controversy doctrine.[1] Defendants appealed. We affirm.

I.

In the prior federal action, which the trial court held to preclude the claims in this action, Wilmark and Hartman sought compensation for the land they had dedicated to the Township (the open space parcel). They claimed that the mandatory dedication of the property for open space was constitutionally prohibited by the takings clause of the Fifth Amendment to the United States Constitution. Alternatively, they claimed, among other things, that the land use development ordinance mandating the dedication was unlawful because it was contrary to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. To provide the context of both the federal action and this action, we recount the relevant events that occurred during Wilmark's land use development application, which we derive from the summary judgment record in this case.

On April 28, 1998, Wilmark filed an application for development with the Township's Planning Board (the Board) seeking approval for a major subdivision on land designated on the Township's tax map as Block 25, Lots 43 and 50 (the Dreahook Property). Wilmark intended to develop the Dreahook Property under the Township's cluster zoning ordinance. Specifically, Wilmark elected to develop the Dreahook Property as residential, one and one-half acre open space clusters. Readington, N.J., Ordinance No. 403.6.1 required that open space in one and one-half acre cluster developments "be permanently deed restricted from further development except for recreation facilities approved by the Township Committee." The ordinance further provided that "[a]t the time of subdivision application the Township Committee shall be notified of the application and be offered the opportunity to accept the proposed open space for the Township."

On January 11, 1999, the Board adopted a resolution approving Phase I of Wilmark's development project. According to the resolution, Phase I "consist[ed] of 14 of the proposed 38 lots on the property." The resolution summarized the testimony of plaintiff's engineer, who explained the subdivision, as follows:

[Wilmark] seeks a major subdivision, consisting of 35 building lots on the preliminary plat plus one detention basin lot and on Block 50 Lot 43 there is a conceptual plat showing only one lot at this time with 5 possible proposed lots of 1.5 Ac. each as shown on pages 3 through 34 of the 9/20/98 revised plat. The property consists of approximately 189 acres of open space cluster subdivision. All lots will be conforming.

The board's "findings of fact" included the following references to open space in paragraphs 29 and 30:

29. . . . The proposed open space parcel includes 5.262 acres of open space for Lot 43 predicated upon 1.5 acre clustering.
33. The Environmental Commission, in their written and public comments, opined that the open space parcel to be dedicated to the Township was of an environmentally sensitive nature, in need of being protected by the "passive recreation" classification. The Board, in deliberation of this request, agreed to the classification of "Passive Recreation" being passed on to the governing body.

The resolution granted Wilmark's application "for preliminary major subdivision approval for [thirty-five] building lots, one open space parcel . . . and final major subdivision approval of Phase I consisting of [fourteen] lots . . . ." The open space parcel was to be designated Lot 50.

The Board's approval was "subject to [Wilmark's] express adherence" to specific terms and conditions. The condition concerning open space ...


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