DR. CHARLES AKSELRAD et al. v. TOWNSHIP OF WEST WINDSOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2466-05T22466-05T2

DR. CHARLES AKSELRAD and

ALEXANDRA, a/k/a ALINE

AKSELRAD,

Plaintiffs-Appellants,

v.

TOWNSHIP OF WEST WINDSOR and

THE PLANNING BOARD OF THE

TOWNSHIP OF WEST WINDSOR,

Defendants-Respondents.

__________________________________

 

Argued: February 27, 2007 - Decided May 2, 2007

Before Judges Axelrad, R.B. Coleman and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1767-05.

Paul A. Sandars, III, argued the cause for appellants (Lum, Drasco & Positan, attorneys; Mr. Sandars and Kevin J. O'Connor, on the brief).

Karen L. Cayci argued the cause for respondent Township of West Windsor (Herbert, Van Ness, Cayci & Goodell, attorneys; Ms. Cayci, on the joint brief).

Gerald J. Muller argued the cause for respondent The Planning Board of the Township of West Windsor (Miller, Porter & Muller, attorneys; Mr. Muller, on the joint brief).

PER CURIAM

Plaintiffs Dr. Charles Akselrad and Alexandra a/k/a Aline Akselrad appeal from the December 20, 2005, order granting summary judgment in favor of defendants, Township of West Windsor ("Township") and the Planning Board of the Township of West Windsor ("Planning Board"), dismissing plaintiffs' complaint for damages based on claims of breach of contract and tortious interference with their development contract resulting from the Township's rezoning of their property. We affirm.

The parties have been involved in protracted litigation commencing in 1984. Plaintiffs are the owners of five vacant, contiguous parcels of land totaling forty-three acres located on Clarksville Road in West Windsor. The parcels are designated on the Township's tax map as Block 94, Lots 1 and 2, and Block 15.14, Lots 8, 13 and 166. In March 1984, plaintiffs' site became embroiled in Mount Laurel litigation. Affordable Living Corporation instituted an exclusionary zoning action against the Township, pursuant to which the Township sought to rezone the parcel for Mount Laurel II compliance. Plaintiffs and another affected property owner, Maneely Princeton Partnership ("Maneely"), were permitted to intervene in the lawsuit and consent orders were entered in October 1985, rezoning the intervenors' sites for exclusionary development as part of the overall compliance plan approved by Judge Serpentelli and incorporated into an October 1, 1985, consent judgment. Toll Bros., Inc. v. Twp. of W. Windsor, 334 N.J. Super. 77 (App. Div. 2000), certif. denied and appeal dismissed, 168 N.J. 295 (2001). A consent order, incorporating the settlement, required the Township to reserve fifteen acres of the tract as ROM-1 zoning to accommodate an office complex of 120,000 square feet and the remainder of the tract was to be rezoned for inclusionary development at a density of eight units per acre, with a further opt-out right of plaintiff to substitute a market unit for each affordable unit by paying into the Township's affordable housing trust fund if the Township's fair share obligation was reduced. Id. at 89.

The order recognized the desire of the parties to enter into a settlement agreement and "incorporat[ed] such agreement into a formal Order which may be enforced by Motion in accordance with the Rules Governing the Courts of the State of New Jersey." Moreover, the order precluded changing the terms of the agreement as follows:

FURTHER ORDERED that no party to this action shall amend any of the terms, conditions, provisions, rights, obligations, etc. contained in this Order, nor shall any land use Ordinances of West Windsor Township which affect the Akselrads' tract (the ROM-1 portion and/or the rezoned R4B portion) be enacted without the written consent of all parties, and in the absence of such consent, the parties hereto shall have the right to make application to the Court for appropriate relief.

In 1987, plaintiffs submitted to the Board plans for a proposed office complex, but there was no sewer service available at the site, so the plans could not proceed.

In May 1993, after the period of repose expired, Toll Brothers sued the Township seeking a site-specific builder's remedy, alleging that the Township's fair share plan was defective due to unreasonable zoning constraints and other factors. Following trial, Judge Carchman declared the Township's zoning ordinance in violation of Mount Laurel II and awarded Toll Brothers a builder's remedy to construct a development of single and multiple family dwellings, including a set-aside of affordable rental units. Toll Bros., Inc. v. Twp. of W. Windsor, 303 N.J. Super. 518, 574-76 (Law Div. 1996), aff'd o.b., 334 N.J. Super. 109 (App. Div. 2000), certif. granted in part on limited issues, 167 N.J. 599-600 (2001), aff'd, 173 N.J. 502 (2002).

Meanwhile, in 1995, plaintiffs learned that sewer facilities might become available for their site. On August 10, 1995, plaintiffs contracted to sell their property to Westminster Realty Corporation ("Westminster"), the proposed developer of the nearby Windsor Ponds development, for $3 million. The contract was conditioned on securing approvals and required plaintiffs to assist in obtaining the approvals, including participation in any proceedings before governmental authorities having jurisdiction over the application.

In November 1996, a month after Judge Carchman issued his Toll Brothers decision, Westminster submitted plans to the Board for development of the residential portion of plaintiff's property, including affordable housing set-aside units. After receiving Judge Carchman's opinion, however, Township officials undertook a comprehensive re-evaluation of the compliance plan. Toll Bros., supra, 334 N.J. Super. at 89. The Township sought to eliminate from its plans any project that was not "in the approval pipeline" and to move away from relying on "inclusionary housing projects with its large market-price housing component" in favor of "more direct methods of producing affordable housing such as non-residential zoning incentives, regional contribution agreements, and municipal or non-profit housing sponsorship." Id. at 89-90. Plaintiffs' counsel was informed that the Township proposed to rezone their site and delete it for affordable housing. On March 19, 1997, the Board held a hearing at which it deleted plaintiffs' and other properties from the sites designated for inclusionary housing in the land use element of its Master Plan. The amended land use element recommended rezoning the land for research, office, and manufacturing uses. Id. at 90.

On April 28, 1997, plaintiff Charles Akselrad attended a Township Council meeting in opposition to Ordinance 97-10, which would rezone the property to ROM-5. He made a lengthy statement during public participation on second reading. Nonetheless, the Township adopted the rezoning ordinance.

Subsequent to the adoption of the rezoning ordinance, on Maneely's application, Judge Carchman permitted the consolidation of the Affordable Living and Toll Brothers cases for the "limited purpose" of allowing him to be heard on his motion to enforce his right under the 1985 settlement order as part of the compliance phase of the Toll Brothers case. Toll Bros., supra, 334 N.J. Super. at 87, 91.

Plaintiffs received correspondence from the Board and court in September 1997, informing them of a Case Management Conference to be held on October 16, 1997, with the requirement of submitting by October 9, a summary of their position as to the plan, list of witnesses, and estimate of time required to present their respective positions. Plaintiffs did not submit materials. Instead, on October 10, 1997, plaintiff sent a letter to the court, stating that he would not participate in the case management conference. He explained that the litigation before Judge Serpentelli presented a considerable financial drain, so he did not want to fight another court battle on behalf of his prospective buyer; that Westminster cancelled the contract following the rezoning; and he commented that the third rezoning of his property was "akin to the Wild West."

In a letter dated October 9, 1997, Westminster had cancelled the contract with plaintiffs, expressing dissatisfaction with plaintiffs' refusal to contest the rezoning. The letter states, in part:

In light of your refusal to cooperate with us regarding pursuit of approvals as required by the Contract of Sale dated August 10, 1995 . . . we hereby demand that you return to us all contract deposits made to date. . . . You have failed to comply with Paragraphs 15 and 23 and have not allowed us to reasonably pursue the approval process as bargained for per the Contract.

As you well know, West Windsor Township rezoned your property from residential zoning to commercial zoning. We have requested on many occasions that this rezoning be contested. You have refused to cooperate with us in this process, thus making it impossible for us at the present time to pursue approvals on the subject property in accordance with the Contract. There is a Compliance Hearing scheduled on October 16, 1997, of which you were advised by the Court. We were advised by your attorney that you have decided not to participate in this process . . . .

In November, plaintiffs' counsel informed Judge Feinberg, who was now handling the case, of plaintiffs' desire to now participate in the compliance hearing. On December 1, 1997, plaintiffs filed a motion similar to that previously filed by Maneely respecting his right to enforce the l985 settlement order, and was granted the same limited consolidation relief as part of the compliance phase of the Toll Brothers case. Plaintiff testified during the compliance hearing proceeding on December 4, 1997, regarding the 1985 consent judgment and the August 10, 1985, contract with Westminster.

On May 1, 1998, the court entered a conditional final judgment of compliance and order for repose. As part of that judgment, the Township was authorized to delete plaintiffs' and Maneely's sites from its Mount Laurel compliance plan, to rezone the sites to non-Mount Laurel uses, and to treat all court orders in the Affordable Living litigation as having expired. The order further provided that plaintiffs "shall be allowed to challenge the new zoning of their properties through a prerogative writ[s] action against the appropriate municipal parties. The 45 day period within which such a complaint is to be filed shall run from the date of this Order." Plaintiffs and Maneely appealed, challenging the deletion of their sites from the Township's compliance plan as, among other items, violating their vested rights under the l985 consent orders. Toll Bros., supra, 334 N.J. Super. at 85.

On June 15, 1998, plaintiffs filed a complaint in both the United States District Court for District of New Jersey and the Superior Court of New Jersey, Law Division, Mercer County. Both complaints were fourteen-count actions, asserting five counts under federal law, 42 U.S.C.A. 1983 and 1985, the Fair Housing Act, federal taking/inverse condemnation claims, and the United States Constitution's contract clause, and the remaining counts under New Jersey law, including prerogative writs and constitutional claims of taking/inverse condemnation, arbitrary and capricious deleting the property from the compliance plan and rezoning, detrimental reliance, misrepresentation and fraud. Particular to this appeal, plaintiffs also expressly pled in both their federal and state complaints specific counts asserting damages for breach of contract for violating "both the express and implied terms of [their] Settlement Order and Order of Compliance" and for tortious interference of their contractual rights and prospective economic advantage. In a February 4, 1999, unpublished decision, the Federal District Court declined to decide any claims arising from the rezoning of plaintiffs' property, noting that the Law Division had specifically reserved to plaintiffs the right to bring a prerogative writs action in State court to challenge the rezoning, and that plaintiffs had filed such action in the State court. On November 29, 1999, the Federal District Court dismissed the balance of plaintiffs' federal law claims pertaining to the Township's sewer policies and declined to exercise pendent jurisdiction over plaintiffs' state law claims and dismissed them. The Third Circuit affirmed in a July 7, 2000, unpublished decision.

With respect to the State court action filed on June 15, 1998, the Township and Planning Board filed answers and affirmative defenses on July 22 and August 12, 1998. It appears from court records that the State action, MER-L-1767-05, was closed by the Clerk's Office.

On August l6, 2000, we reversed and remanded on plaintiffs' and Maneely's appeal from the judgment in the compliance hearing, holding that the consent judgments did not expire after six years, and that the trial court needed to apply the standards of Rule 4:50-1(e) to analyze whether the sites were presently suitable for Mount Laurel housing and determine whether the Township was entitled to relief from the judgments. Toll Bros., supra, 334 N.J. Super. at 94, 98. We stated that plaintiffs' rights under the l985 orders should be governed by a Rufo analysis, i.e., the Township must demonstrate "significant change in facts or applicable law warranting revision of the consent judgment and orders, and that removal of the sites from the plan is 'suitably tailored to the changed circumstances[,]'" and set forth relevant factors for consideration on remand. Id. at 102.

Subsequent to the remand, the parties participated in numerous proceedings before the trial court and became engaged in settlement negotiations in early 2003. On March 31, 2003, plaintiffs executed a lease agreement on the property with West Windsor Gardens, LLC. On November 29, 2004, the parties to this litigation and West Windsor Gardens, LLC, signed an "Infrastructure Agreement." While the parties now disagree as to whether the agreement constituted a release of all other claims, the document resolved the development of the site in favor of plaintiffs.

On July 1, 2005, plaintiffs filed the present action based on breach of contract and unlawful interference with a contractual relationship, alleging the Township's wrongful rezoning of their property in violation of the 1985 consent order resulted in the loss of the Westminster contract, entitling them to damages of $3 million, counsel fees and costs. On October 14, 2005, following oral argument on the Township's motion to dismiss the complaint, Judge Feinberg dismissed Count Two alleging tortious interference, as barred by the sovereign immunity provisions of the Tort Claims Act. Following receipt of supplemental materials, the court issued a written opinion on December 6, 2005, dismissing the remaining two counts for damages, concluding that plaintiffs' right to seek relief under the terms of the 1985 settlement order was limited to enforcement of litigants' rights and that plaintiffs were barred from seeking damages for a breach of the terms of the settlement. A summary judgment order was entered on December 20, 2005, and plaintiffs appealed.

On appeal, plaintiffs contend the court's grant of summary judgment was procedurally improper because the immunity issue was raised in a reply brief by the Township and the Township's supplemental brief expanded upon the statute of limitations issue raised in its initial motion to dismiss and introduced entirely new issues as to the substance of the breach of contract claim. Plaintiffs further contend that summary judgment was inappropriate as there were material factual issues pertaining to the parties' relationship and the intent and purposes of the 1985 consent order. Alternatively, plaintiffs challenge the legal findings by the court respecting their entitlement to damages under the 1985 consent order and the Township's immunity under the Tort Claims Act, and further contend their complaint is not barred by the entire controversy doctrine, the breach of contract claim is not barred by the six-year statute of limitations, and the infrastructure agreement is not a "settlement agreement" and does not bar their complaint. We are not persuaded by plaintiffs arguments and affirm substantially for the reasons articulated by Judge Feinberg. We add the following additional comments.

We discern no procedural deficiencies in the way the matter was handled before the trial court and are satisfied that plaintiffs had more than adequate opportunity to present their case before the trial court and again on appeal. In determining whether there exists a genuine issue of material fact that precludes summary judgment under Rule 4:46-2, the motion judge is to consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Summary judgment is appropriate when the evidence "'is so one-sided that one party must prevail as a matter of law.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). On appeal, we apply the same standard as the trial court with respect to the motion record and determine whether the motion judge's ruling on the law was correct. Ponte v. Overeem, 337 N.J. Super. 425, 427 (App. Div. 2001), rev'd on other grounds, 171 N.J. 46 (2002); Prudential Prop. and Cas. Ins. Co. v. Boylan, 307 N.J. Super. 163, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). After reviewing the record and hearing oral argument, we are satisfied there are no material factual issues that would preclude the matter proceeding by summary judgment and there is more than ample basis in the record to support Judge Feinberg's legal rulings in favor of defendants.

We are in accord that plaintiffs' tortious interference claim is barred by the Tort Claims Act and thus, plaintiffs are not entitled to damages from the Township under that theory as a result of Township's rezoning of the property. Pursuant to N.J.S.A. 59:2-3b, "[a] public entity is not liable for legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial nature." This subsection provides for an absolute immunity, which recognizes the "principle that certain high-level decisions calling for the exercise of official judgment or discretion must not be subject to the threat of tort liability" and that "it cannot be a tort for government to govern." Margolis & Novack, Claims Against Public Entities, 1972 Task Force Comment on N.J.S.A. 59:2-3b (2007) (citations omitted). N.J.S.A. 59:2-3d further provides that "[a] public entity is not liable for the exercise of discretion when, in the face of competing demands, it determines whether and how to utilize or apply existing resources . . . unless a court concludes that the determination of the public entity was palpably unreasonable." The rationale for this immunity is particularly evident in the Mount Laurel context, which involves a fluid process of analysis and re-evaluation by a municipality of its resources and affordable housing compliance plan in response to changing facts or circumstances, such as the Toll Brothers builders remedy decision, and often results in Master Plan amendments and rezoning to effectuate a new compliance plan. A municipality cannot effectively function if its planning board and council members cannot take these actions, subject to public comment and numerous other procedural requirements and safeguards, without the cloak of sovereign immunity under the Tort Claims Act. Furthermore, the Legislature broadly immunizes a public entity from liability "for any injury caused by adopting or failing to adopt a law . . . ." N.J.S.A. 59:2-4.

Plaintiffs provide no legal basis for their argument that a tortious interference with contract claim is not the type of cause of action to which the Tort Claims Act and its immunities were intended to apply or that such immunity is inappropriate where the underlying claim is based on a violation of a consent decree. Moreover, the fact that a consent decree is involved in irrelevant. It is not the consent decree but the 1997 rezoning that is the gravamen of plaintiffs' complaint for tortious interference, and that is the legislative act that is expressly immunized from damages by the Tort Claims Act. Plaintiffs also argue that allowing such immunity to the Township encourages a municipality to violate the terms of consent decrees with impunity without the fear of being accountable for damages. This argument is misplaced as it ignores the availability of motions to enforce the settlement or to intervene in compliance plans as expressly occurred in this case, which provide municipalities with ample incentives to honor commitments or require them to demonstrate a substantial change for relief from the consent order.

Nor are damages a cognizable remedy under the 1985 consent order. The trial court recognized that this order represented a settlement regarding plaintiffs' tract of land and was a binding contract between the parties. That fact, however, did not automatically entitle plaintiffs to both court enforcement of their rights under the order as well as the ability to seek damages for any alleged non-compliance by the Township under a general breach of contract theory. As Judge Feinberg noted, and which we deem to be most critical, the consent order contains "no provision providing for damages in the event of a rezoning of the property [and] [as] is clear on its face, the order does not provide for any remedy other than through application to the court for enforcement of the order or relief from the order." Thus, the trial court properly concluded that the "relief bargained for by the parties, and set forth in the consent order, was either enforcement of the order by the court or relief from the obligation to retain the rezoning in place." It is a longstanding maxim that "[w]hen the terms of a contract are clear, it is the function of the court to enforce it as written and not to make a better contract for either of the parties." U.S. Pipe and Foundry Co. v. Am. Arbitration Ass'n, 67 N.J. Super. 384, 393 (App. Div. l961). As we noted in plaintiffs' appeal of the compliance judgment, "[h]istorically, parties to Mount Laurel consent judgments have sought to protect their rights, as here, through motions to enforce litigants' rights. R. 1:10-3." Toll Bros., supra, 334 N.J. Super. at 91-92 (other citations omitted). We are confident that if the parties intended to deviate from the past practice followed in Mount Laurel litigation and expose the Township to potential damages for the rezoning of plaintiffs' property after determining it was no longer a viable and suitable Mount Laurel site, they would have provided so in their settlement agreement. They neither explicitly nor implicitly did so. For us now to engraft an additional damages remedy would be contrary to the language of the consent order and would have a chilling effect on Mount Laurel litigation.

The trial court correctly concluded as a matter of law that the parties' exclusive remedy for violation of the l985 consent order was through court enforcement. Plaintiffs have had substantial opportunities to pursue this route. They participated in the compliance hearing. Plaintiffs also succeeded on their appeal, in which we held that they had continued rights under the l985 consent order and we remanded for the Township to justify revision of the order under specific legal parameters. Toll Bros., supra, 334 N.J. Super. at 77. That plaintiffs chose not to proceed with the remand hearing but, instead, entered into the agreement with the Township and West Windsor Gardens is immaterial, as court enforcement is the sole remedy they bargained for, not damages, and they are entitled to no more.

Although not reached by the court, we determine it is appropriate to address the statute of limitations issue as it was fully briefed by the parties and can be decided as a matter of law based on the record before the trial court. R. 2:10-5. We hold that plaintiffs' claims are also barred by the statute of limitations.

Plaintiffs contend their cause of action did not accrue until January 3, 2005, when the trial court entered the consent order for judgment dismissing the Township's Rule 4:50-1 application and memorializing the consent between the parties as to the sewering of plaintiffs' site. They therefore submit that this action filed on July l, 2005, was timely filed within the six-year statutory period for contract actions. N.J.S.A. 2A:14-1. We are not convinced by this argument.

It is well established that a claim accrues, for statute of limitations purposes, on "the date on which 'the right to institute and maintain a suit' first arose." County of Morris v. Fauver, 153 N.J. 80, 107 (1998) (citations omitted). Ordinarily, the statute of limitations begins to run from the moment of the wrong. Amland Props. Corp. v. Aluminum Co. of Am., 808 F. Supp. 1187, 1189 (D.N.J. 1992). See also Vision Mortgage Corp., Inc. v. Chiapperini, 156 N.J. 580, 586 (1999) (cause of action accrues when plaintiff knows or should have known that it suffered legal injury; "all or even the greater part of the damages" need not have occurred before the cause of action arises).

The act of rezoning without plaintiffs' prior consent or prior relief from the court was the act that arguably both violated plaintiffs' contractual rights under the l985 settlement order and interfered with the Westminster contract. The alleged breach occurred on April 28, 1997, of which plaintiff was clearly aware as he attended the hearing at which the rezoning ordinance was adopted. Without addressing the merits of their case, plaintiffs indisputably had a right to "institute and maintain a suit" on their damage claims following the rezoning. Fauver, supra, 153 N.J. at 107. There was no need to await final adjudication of the compliance hearing issues, which were separate and distinct causes of action from whether the Township owed plaintiffs money because it allegedly broke its promise or interfered with plaintiffs' contract with its developer. In fact, plaintiffs' filing of federal and state actions in June l998, both of which included counts asserting the breach of contract and tortious interference claims, is indicative of plaintiffs' recognition of the accrual of its causes of action at that time. The absence of a valid federal question resulted in the dismissal of the federal action and plaintiffs chose not to pursue the state court action so the claims lapsed.

 
Plaintiffs did not file this suit until July 2005, more than eight years after the accrual of the causes of action asserted in the complaint. As such, plaintiffs' complaint is barred by the six year contract statute of limitations, N.J.S.A. 2A:14-1, and the two year municipal tort statute of limitations, N.J.S.A. 59:8-8b.

Affirmed.

S. Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 67 N.J. 151, appeal dismissed and cert. denied, 43 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (Mount Laurel I); S. Burlington County N.A.A.C.P. v. Twp. of Mount Laurel, 92 N.J. 158 (1983) (Mount Laurel II).

The letter also stated that the court had ruled in the Toll Brothers litigation that the 1985 consent order was no longer in effect. On April 16, 1997, Judge Carchman stated that his l993 ruling regarding the Affordable Living consent orders applied only to the Toll Brothers development and did not apply to the Akselrad and Maneely sites. This issue, which was subsequently addressed by Judge Feinberg and our court, will be discussed infra.

All subsequent references to plaintiff shall refer only to Charles.

The computer records list the disposition date of August 25, 1998. The exact nature of the disposition is unknown; however, there is no contention that plaintiffs sought to prosecute the action beyond that date.

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 393, 112 S. Ct. 748, 765, 116 L. Ed. 2d 867, 892 (1992).

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A-2466-05T2

May 2, 2007