MARGIT C. NOVAK v. COUNTY OF WARREN
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1531-16T3
MARGIT C. NOVAK,
Plaintiff-Appellant,
v.
COUNTY OF WARREN, a duly
organized County in the
State of New Jersey,
Defendant-Respondent.
______________________________
Submitted February 12, 2018 – Decided March 13, 2018
Before Judges Ostrer and Rose.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Docket No.
L-0079-14.
Benbrook & Benbrook, LLC, attorneys for
appellant (Kevin P. Benbrook, on the brief).
Bell & Shivas, P.C., attorneys for respondent
(Joseph J. Bell, of counsel and on the brief;
Paula Ortega and Brian C. Laskiewicz, on the
brief).
PER CURIAM
Plaintiff Margit C. Novak appeals from the trial court's
November 7, 2016 order denying reconsideration of a June 28, 2016
order granting defendant County of Warren's motion for summary
judgment and denying plaintiff's cross-motion for summary
judgment. In so ruling, the trial court found an indemnity
agreement between the parties barred plaintiff's complaint for
inverse condemnation. Having considered defendant's arguments in
light of the record and controlling law, we affirm.
I.
The essential facts are undisputed. In 1983, plaintiff and
her husband, Raymond Novak,1 sought approval from the Hope Planning
Board and the Warren County Planning Board for subdivision of a
sixty-nine acre2 tract of land in Hope Township. Approval by the
Warren County Planning Board ("Board") was required because the
property fronted County Route 609 ("CR 609"). Plaintiff sought
to subdivide the lot into twelve3 residential building lots,
including Lot 705, which plaintiff retained and currently owns.
Plaintiff sought driveway access from Lot 705 to CR 609.
Prior to granting subdivision approval, the Board suggested
1
Because Raymond Novak is now deceased, and the action was filed
solely by Margit C. Novak, we refer to plaintiff in the singular.
2
The record contains variations in the size of the property,
ranging from sixty-two acres to sixty-nine acres.
3
The record contains references to subdivision of the property
into fourteen lots, but plaintiff maintains the property was
subdivided into twelve lots.
2 A-1531-16T3
plaintiff consider access from a nearby municipal street instead
of CR 609. Plaintiff rejected that suggestion. Thus, the lot's
only road frontage is CR 609. However, driveway access from Lot
705 to CR 609 necessitates access through neighboring Lot 1000 in
order to comply with sightline standards. The Board required that
plaintiff obtain an easement from the owner of Lot 1000, but
plaintiff's then-counsel argued an easement was unnecessary.
Concerned with the potential for future litigation, as a
condition precedent to subdivision approval, defendant required
plaintiff to execute an indemnity agreement. Executed on February
24, 1989, the indemnity agreement states, in pertinent part:
WHEREAS, proposed Lot 705 . . . will
necessitate the crossing of a small portion
of Lot 1000 . . . which lands are not in the
name or title of [plaintiff] and which lands
must be crossed in order to afford driveway
access or ingress and egress to and from . .
. [CR] 609 to the said proposed Lot 705 . . .
and
WHEREAS, . . . the Warren County Planning
Board . . . will grant its approval to
[plaintiff] and in particular will interpose
no objections to [plaintiff] having access to
. . . [CR] 609 from proposed Lot 705 . . .
upon provision that [plaintiff] is willing to
defend, indemnify and hold harmless
[defendant] from any and all claims of
whatever nature arising out of the approval
of the proposed access over the said Lot 1000
. . . and
WHEREAS, [plaintiff] wishes to express . . .
agreement to defend and indemnify [defendant]
3 A-1531-16T3
as a condition of obtaining Warren County
Planning Board approval;
NOW, THEREFORE, it is hereby agreed as
follows:
1. [Plaintiff] hereby agrees [to] save,
indemnify and hold [defendant] harmless from
any claim for action whether in law or equity
for loss, liability, expense or damage made
by any party against [defendant], its
employees and agents, arising out of or from
driveway access over and across . . . Lot 1000
to [CR] 609. . . .
At the time of the subdivision approval, defendant's
Development Review Regulations required a minimum sight distance
of three hundred feet for a driveway opening permit on CR 609.
Driveway access applications were also required to comply with
other design specifications for driveway grade, storm water
runoff, and vehicle turnaround. Following approval, several
standards changed, including: driveway sight distance standards
in 1999 and 2007; storm water management standards in 2004; and
septic design standards in 2012 ("subsequent standards"). The
subsequent standards reflected new safety data and
"recommendations for protection of the public health, safety and
welfare."
In 2004, fifteen years after defendant approved the
subdivision, plaintiff retained Mace Consulting Engineers ("MCE")
and filed an application for a driveway access permit with the
4 A-1531-16T3
Board. MCE's proposed plans for the driveway substantially altered
the 1989 approval, and were inconsistent with defendant's
subsequent standards and the 1989 requirements. Specifically,
MCE's plan proposed a fifteen percent slope for the driveway.
Defendant's engineering department did not immediately reject
plaintiff's application. Rather, in correspondence and telephone
calls during the following three years, the engineering department
repeatedly requested information it deemed necessary to approve
plaintiff's proposed 2004 plan. On several occasions, the
engineering department advised MCE that plaintiff's application
was insufficient. Following a meeting with defendant's
engineering department, MCE advised plaintiff, by correspondence
dated May 24, 2006, that defendant's representative stated,
"because of the [i]ndemnity [a]greement that was part of the
subdivision of this lot, [defendant] had no obligation to relax
[its] design standards." MCE also advised plaintiff of the option
to purchase a portion of Lot 1000 to meet defendant's sightline
requirements. It is unclear from the record whether plaintiff
specifically approached the owner of Lot 1000, or assumed he would
not grant an easement voluntarily. Defendant's investigation
revealed, however, that in March 2016 the owner of Lot 1000 was
willing to "entertain selling a piece of the property or a lot
line adjustment."
5 A-1531-16T3
By correspondence dated October 31, 2006, plaintiff's then-
counsel notified MCE of the potential for legal action against
defendant or the owner of Lot 1000 in order to gain access to CR
609. By correspondence dated January 23, 2007, defendant's
engineering department notified plaintiff's attorney that the
sight distance issue could be resolved if the proposed driveway
were moved approximately eight feet easterly.
For the following six years, plaintiff had no contact with
defendant. In 2013, plaintiff retained new legal and engineering
professionals to resubmit her application for driveway access to
Lot 705. However, on October 25, 2013, defendant rejected
plaintiff's request for a site visit, and indicated it would not
issue plaintiff a driveway permit.
In March 2014, plaintiff filed the present complaint for
inverse condemnation against defendant, alleging defendant's
failure to approve a driveway permit for Lot 705 created a complete
lack of access, thereby eliminating all economic utility and
constituted a regulatory taking of plaintiff's property without
just compensation. In its answer, defendant asserted various
defenses including, plaintiff's failure to exhaust administrative
remedies and failure to commence her claim within the appropriate
statute of limitations period.
6 A-1531-16T3
Following discovery, the parties filed cross-motions for
summary judgment. In a cogent statement of reasons, the motion
judge found
[t]he plain language of the agreement
contemplates the potential necessity of
obtaining an easement over and across Lot 1000
to provide driveway access to Lot 705. Though
it may not have been certain at the time that
such an easement would be necessary, and the
parties may have even believed it would not,
that is exactly the purpose of such an
agreement, to replace uncertainty with
assurances. Plaintiff agreed to hold
[defendant] harmless for any action "arising
out of or from driveway access over and across
premises known as . . . Lot 1000 to [CR] 609."
This is precisely the way in which plaintiff's
claim arises. Plaintiff cannot achieve the
necessary sight distance to obtain a driveway
permit given the limited direct access that
her property has to [CR] 609. If plaintiff
were able to obtain an easement from the
current owner of Lot 1000, allowing the
driveway to run over and across Lot 1000 and
utilizing part of the frontage on [CR] 609
from that neighboring lot, then plaintiff
could achieve the requisite sight distance,
obtain her driveway permit, and have driveway
access to Lot 705, eliminating her claim for
inverse condemnation. Therefore, the [c]ourt
finds that the [indemnity a]greement applies
to relieve defendant of liability.
Plaintiff filed a motion for reconsideration of the court's
order, pursuant to Rule 4:49-2. In support of her motion,
plaintiff filed a certification of Norton B. Rodman, including
five letters exchanged between the parties in mid to late 1988.
7 A-1531-16T3
At the time of his certification, Rodman was an engineer with the
Township of Hope and the Township's planning board for forty-one
years, and had reviewed plaintiff's subdivision application.
It is undisputed that the documents submitted to support her
motion for reconsideration were available to plaintiff prior to
the court's decision regarding the cross-motions for summary
judgment. During oral argument before the motion judge,
plaintiff's counsel explained that, after the court's decision on
the underlying motions, he met with Rodman, "reviewed his files,
[and] submit[ted] the additional documentation for the [c]ourt
[because he] . . . thought it was important that [the court] see
the entire chain of correspondence." Plaintiff's counsel stated
further he had not thought initially "it . . . had any particular
application or relevance to the issue, but given . . . [the
court's] decision . . . [it was] incumbent upon [him] to give it
that context." Accordingly, he "just did [not] see the actual
need to address [the summary judgment argument] beyond the
documents [he] had submitted."
The trial judge denied the reconsideration motion, finding
the documents submitted in support of plaintiff's motion were
available at the time of his decision on the cross-motions for
summary judgment. The judge found further the additional evidence
8 A-1531-16T3
did not persuade him that he would have reached a different
conclusion had he considered it.
Plaintiff appeals, contending the court misconstrued the
indemnity agreement by requiring her to obtain an easement to
construct a driveway from Lot 705 to CR 609. Specifically,
plaintiff argues the plain language of the indemnity agreement,
and the correspondence supporting her motion for reconsideration,
indicate clearly that an easement is not required to obtain a
driveway permit.
II.
A.
A trial court's order on a motion for reconsideration will
not be set aside unless shown to be a mistaken exercise of
discretion. Granata v. Broderick,
446 N.J. Super. 449, 468 (App.
Div. 2016) (citing Fusco v. Bd. of Educ.,
349 N.J. Super. 455, 462
(App. Div. 2002)). Reconsideration should only be granted in
those cases in which the court had based its decision "upon a
palpably incorrect or irrational basis," or did not "consider, or
failed to appreciate the significance of probative, competent
evidence." Ibid. (quoting D'Atria v. D'Atria,
242 N.J. Super.
392, 401 (Ch. Div. 1990)).
9 A-1531-16T3
A motion for "[r]econsideration cannot be used to expand the
record and reargue a motion." Capital Fin. Co. of Delaware Valley,
Inc. v. Asterbadi,
398 N.J. Super. 299, 310 (App. Div. 2008). It
"is designed to seek review of an order based on the evidence
before the court on the initial motion, not to serve as a vehicle
to introduce new evidence in order to cure an inadequacy in the
motion record." Ibid. (citation omitted); Palombi v. Palombi,
414 N.J. Super. 274, 288 (App. Div. 2010) (finding that a motion for
reconsideration "is not appropriate merely because a litigant is
dissatisfied with a decision of the court or wishes to reargue a
motion"). A court may "in the interest of justice" consider new
evidence on a motion for reconsideration only when the evidence
was not available prior to the decision by the court on the order
that is the subject of the reconsideration motion. D'Atria,
242 N.J. Super. at 401; see also Palombi,
414 N.J. Super. at 289
(finding that facts known to party prior to entry of an original
order did not provide an appropriate basis for reconsideration);
Fusco,
349 N.J. Super. at 462 (finding the party not entitled to
reconsideration where evidence was available but not submitted to
the court on the motion for the original order).
Plaintiff failed to make such a showing here. Dissatisfied
with the trial court's decision, and at least three months after
discovery ended, plaintiff's counsel met with Rodman. Having
10 A-1531-16T3
reviewed plaintiff's subdivision application, Rodman was known to
plaintiff since the 1980s. Further, the correspondence submitted
in support of plaintiff's reconsideration motion was not "new
evidence" having been exchanged between the parties during 1988
and 1989, and available to plaintiff prior to the court's decision
regarding the cross-motions for summary judgment. Conceding he
believed he had addressed the summary judgment cross-motions with
the documents submitted, plaintiff's counsel seeks to "cure" what
he now perceives to be "an inadequacy in the motion record."
Asterbadi,
398 N.J. Super. at 310. Clearly, the identity of
Rodman, and the correspondence submitted in support of plaintiff's
reconsideration motion, were available prior to the close of
discovery and the court's decision regarding the cross-motions for
summary judgment. D'Atria,
242 N.J. Super. at 401.
B.
Moreover, when reviewing the grant of summary judgment, we
analyze the decision applying the "same standard as the motion
judge" pursuant to Rule 4:46-2(c). Globe Motor Co. v. Igdalev,
225 N.J. 469, 479 (2016) (quoting Bhagat v. Bhagat,
217 N.J. 22,
38 (2014)).
That standard mandates that summary judgment
be granted "if the pleadings, depositions,
answers to interrogatories and admissions on
file, together with the affidavits, if any,
show that there is no genuine issue as to any
11 A-1531-16T3
material fact challenged and that the moving
party is entitled to a judgment or order as a
matter of law."
[Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co.,
224 N.J. 189, 199 (2016)
(quoting R. 4:46-2(c)).]
"To defeat a motion for summary judgment, the opponent must
'come forward with evidence' that creates a genuine issue of
material fact." Cortez v. Gindhart,
435 N.J. Super. 589, 605
(App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J.
v. State,
425 N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory
and self-serving assertions by one of the parties are insufficient
to overcome the motion." Puder v. Buechel,
183 N.J. 428, 440-41
(2005) (citations omitted). "When no issue of fact exists, and
only a question of law remains, [we] [afford] no special deference
to the legal determinations of the trial court." Templo Fuente,
224 N.J. at 199 (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan,
140 N.J. 366, 378 (1995)).
An indemnity agreement is interpreted in accordance with
general rules of contract construction. Ramos v. Browning Ferris
Indus., Inc.,
103 N.J. 177, 191 (1986). "The interpretation of a
contract is subject to de novo review by an appellate court."
Kieffer v. Best Buy,
205 N.J. 213, 222 (2011). No special
deference is afforded to the "trial court's interpretation of the
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law and the legal consequences that flow from established facts."
Manalapan Realty,
140 N.J. at 378.
In determining the meaning of an indemnity provision, the
clause "is to be strictly construed and not extended to things
other than those therein expressed." Longi v. Raymond-Commerce
Corp.,
34 N.J. Super. 593, 603 (App. Div. 1955) (citing George M.
Brewster & Son, Inc. v. Catalytic Constr. Co.,
17 N.J. 20, 27-28
(1954)). "If the meaning of an indemnity provision is ambiguous,
the provision is 'strictly construed against the indemnitee.'"
Keiffer,
205 N.J. at 223 (quoting Mantilla v. NC Mall Assocs.,
167 N.J. 262, 272 (2001)). An ambiguity exists where "the terms of
the contract are susceptible to at least two reasonable alternative
interpretations." Chubb Custom Ins. Co. v. Prudential Ins. Co.
of Am.,
195 N.J. 231, 238 (2008) (citing Nester v. O'Donnell,
301 N.J. Super. 198, 210 (App. Div. 1997)). If, however, "the intent
of the parties is evident from an examination of the instrument,
and the language is unambiguous, the terms of the instrument
govern." Rosen v. Keeler,
411 N.J. Super. 439, 451 (App. Div.
2010) (citation omitted).
Here, plaintiff contends the trial court erred in its
interpretation of the indemnity agreement because its plain
language, and the contemporaneous correspondence surrounding its
execution, do not require her to obtain an easement from the owner
13 A-1531-16T3
of Lot 1000 in order to be entitled to a driveway permit from
defendant. She maintains that was not the purpose of the indemnity
agreement. In its decision, the trial court specifically found
that, although the parties may not have believed an easement was
necessary, the plain terms of the agreement protect defendant from
"any action 'arising out of or from driveway access over and across
premises known as . . . Lot 1000 to [CR] 609.'"
An easement is defined as "a nonpossessory incorporeal
interest in another's possessory estate in land, entitling the
holder . . . to make some use of the other's property." Leach v.
Anderl,
218 N.J. Super. 18, 24 (App. Div. 1987); see also Mandia
v. Applegate,
310 N.J. Super. 435, 442-43 (App. Div. 1998); Kline
v. Bernardsville Ass'n, Inc.,
267 N.J. Super. 473, 478 (App. Div.
1993). Put simply, an easement is "[a]n interest in land owned
by another person, consisting in the right to use or control the
land . . . for a specific limited purpose (such as to cross it for
access to a public road)." Black’s Law Dictionary 585-86 (9th ed.
2009) (emphasis added).
Here, the indemnity agreement provides, "proposed Lot 705
. . . will necessitate the crossing of a small portion of Lot
1000" which plaintiff does not own. Further, Lot 1000 "must be
crossed in order to afford driveway access or ingress and egress
to and from . . . [CR] 609 to the said proposed Lot 705." Clearly,
14 A-1531-16T3
driveway access from Lot 705, across Lot 1000, to CR 609 would
require plaintiff to "make some use of [another's] property."
Leach,
218 N.J. Super. at 24. While the motion judge recognized,
"[alt]hough it may not have been certain that such an easement
would be necessary, and the parties may have even believed it
would not, that is exactly the purpose of such an agreement, to
replace uncertainty with assurances." In fact, the plain terms
of the agreement require plaintiff to hold defendant harmless for
any action "arising out of or from driveway access over and across
. . . Lot 1000." As the trial court observed, "[t]his is precisely
the way in which plaintiff's claim arises." Thus, the plain
language of the indemnity agreement protects defendant from
actions, including the present inverse condemnation action,
involving access from Lot 705 to CR 609, in exchange for approval
of plaintiff's subdivision application.
Moreover, although plaintiff executed the indemnity agreement
in 1989, she did not seek a driveway permit until 2004 via an
application that did not satisfy defendant's subsequent standards
nor its 1989 requirements. When plaintiff failed to correct the
2004 plan, she took no further action until 2013, but again failed
to conform to present standards or correct the deficiencies from
her 2004 plan. We are not persuaded that these actions give rise
to an action for inverse condemnation.
15 A-1531-16T3
"In an inverse condemnation action, a landowner is seeking
compensation for a de facto taking of his or her property."
Greenway Dev. Co. v. Borough of Paramus,
163 N.J. 546, 553 (2000)
(citation omitted). A property owner must be "deprived of all or
substantially all of the beneficial use of the totality of his
property" in order to bring a claim for inverse condemnation.
Ibid. (citation and internal quotation marks omitted). Where the
government "seizes property without first bringing a condemnation
proceeding, the burden shifts to the individual to bring an action
to compel condemnation, known as 'inverse condemnation.'" Klumpp
v. Borough of Avalon,
202 N.J. 390, 406 (2010). It is well
settled, however, that not every impairment in value establishes
a taking. Karam v. Dep't of Envtl. Prot.,
308 N.J. Super. 225,
235 (App. Div. l998). In an inverse condemnation action, plaintiff
has the burden of demonstrating that the adoption of more stringent
land use requirements and the denial of variance relief has
effectively zoned the property "into inutility," see Commons v.
Westwood Zoning Bd. of Adjustment,
81 N.J. 597, 607 (1980), and
deprived the property of all productive or beneficial use.
Here, prior to executing the indemnity agreement plaintiff
was well aware of the issue in accessing CR 609 from Lot 705.
That the Board suggested plaintiff consider access from a nearby
municipal street, at least at the time of plaintiff's subdivision
16 A-1531-16T3
application, militates against plaintiff's argument that Lot 705
is "landlocked" without access to CR 609. Further, it is unclear
from the record whether plaintiff sought an easement from the
owner of Lot 1000. At least in March 2016, the owner of Lot 1000
was willing to sell a portion of his property to plaintiff to
effectuate access to CR 609. With at least two viable access
alternatives, plaintiff has not demonstrated defendant's more
stringent site requirements have effectively zoned her property
"into inutility." Ibid.
C.
Although the trial court did not reach defendant's remaining
arguments, we agree with defendant that the well-established
doctrine of exhaustion of administrative remedies is appropriate
here. See Curzi v. Raub,
415 N.J. Super. 1, 20-21 (App. Div.
2010); Borough of Haledon v. Borough of N. Haledon,
358 N.J. Super.
289, 301-02 (App. Div. 2003). Our Supreme Court has recognized
the doctrine in the context of an inverse condemnation action.
Griepenburg v. Twp. of Ocean,
220 N.J. 239, 260-61 (2015).
Further, Rule 4:69-5 imposes a duty to exhaust administrative
remedies before initiating actions at law "[e]xcept where it is
manifest that the interest of justice requires otherwise." This
requirement is "a rule of practice designed to allow administrative
bodies to perform their statutory functions in an orderly manner
17 A-1531-16T3
without preliminary interference from the courts." Brunetti v.
Borough of New Milford,
68 N.J. 576, 588 (1975). Hence, there is
"a strong presumption favoring the requirement of exhaustion of
remedies." Griepenburg,
220 N.J. at 261 (citations and internal
quotation marks omitted).
Here, plaintiff has not submitted plans for the driveway
permit since 2004. As such, defendant is unaware whether she has
satisfied the sight distance requirement. Because she has not
resubmitted a plan to the Board, plaintiff has not exhausted her
administrative remedies.
We also conclude plaintiff's claim is precluded by the six-
year statute of limitations period governing inverse condemnation
claims. Klumpp,
202 N.J. at 409-10 (citing
N.J.S.A. 2A:14-1). A
cause of action for inverse condemnation claims "begins to accrue
on 'the date the landowner becomes aware or, through the exercise
of reasonable diligence, should have become aware, that he or she
had been deprived of all reasonably beneficial use." Ibid. Here,
plaintiff filed her complaint on March 10, 2014. Plaintiff was
aware of her claim no later than 2004, when her proposed plan was
deemed insufficient, through January 2007 when the final
correspondence was sent from defendant's engineer to plaintiff's
then-counsel regarding defendant's standards and permit
procedures. At best, plaintiff's claim accrued in January 2007,
18 A-1531-16T3
nearly seven years and two months before her complaint was filed.
Therefore, her action is barred by the statute of limitations.
N.J.S.A. 2A:14-1.
To the extent not specifically addressed herein, the parties'
respective additional appellate arguments are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
19 A-1531-16T3
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