RACCOON CREEK GROUP LLC v. CONSTRUCTION BOARD OF APPEALS OF THE COUNTY OF GLOUCESTER TOWNSHIP OF LOGAN PLANNING BOARD OF THE TOWNSHIP OF LOGAN REMINGTON VERNICK ENGINEERS INC BACH ASSOCIATES

ResetAA Font size: Print

Superior Court of New Jersey, Appellate Division.

RACCOON CREEK GROUP, LLC, Plaintiff–Appellant, v. CONSTRUCTION BOARD OF APPEALS OF THE COUNTY OF GLOUCESTER;  TOWNSHIP OF LOGAN;  PLANNING BOARD OF THE TOWNSHIP OF LOGAN;  REMINGTON & VERNICK ENGINEERS, INC.;  and BACH ASSOCIATES, P.C., Defendants–Respondents.

DOCKET NO. A–4029–12T3

Decided: April 2, 2014

Before Judges Harris, Kennedy, and Guadagno. Jeffrey Kantowitz argued the cause for appellant (Abe Rappaport, attorney;  Mr. Kantowitz, of counsel and on the brief). Brian Guest argued the cause for respondent Construction Board of Appeals (Parker McCay, P.A., attorneys;  Mr. Guest, on the statement in lieu of brief).   Brian J. Duffield argued the cause for respondent Township of Logan;  Dale T. Taylor argued the cause for respondent Planning Board of the Township of Logan (Law Office of Brian J. Duffield, attorney for Township of Logan;  Law Office of Dale T. Taylor, attorney for Planning Board of the Township of Logan;  John A. Moustakas and Mr. Taylor, on the joint brief). Ellis I. Medoway argued the cause for respondents Remington & Vernick Engineers, Inc. and Bach Associates, P.C. (Archer & Greiner, P.C., attorneys;  Mr. Medoway and Benjamin D. Morgan, on the brief).

Plaintiff Raccoon Creek Group, L.L.C. (Raccoon Creek) appeals from the Law Division's March 18, 2013 final judgment (1) dismissing its action in lieu of prerogative writs and (2) requiring payment to defendants Remington & Vernick Engineers, Inc. (Remington) and Bach Associates, P.C. (Bach) for professional review services of a development application under the auspices of N.J.S.A. 40:55D–53.2.1 We modify the judgment and affirm.

I.

Raccoon Creek seeks to develop approximately 643 acres of land in Logan Township.   In separate litigation, Raccoon Creek sued the Township and its land use agencies for remedies available under our State's Mount Laurel 2 jurisprudence.   In June 2005, the exclusionary zoning action was settled, by which, among other things, Raccoon Creek's property was rezoned to permit it to seek permission to develop up to 1326 housing units, some of which would be affordable.

In November 2006, Raccoon Creek filed an application with the Township of Logan Planning Board for general development plan (GDP) approval pursuant to N.J.S.A. 40:55D–45.1 to –45.8. Specifically, Raccoon Creek sought GDP approval for a mixed-use development —— the Port Royale project —— comprised of residential, retail, and community uses.   The Planning Board obtained the services of Remington to provide engineering review and Bach to provide professional planning oversight in connection with Raccoon Creek's GDP application.

Hearings were conducted during the late spring and summer of 2007.   Reports from Remington and Bach were received and reviewed by the Planning Board.   Ultimately, on September 13, 2007, the Planning Board adopted a fifty-one page memorializing resolution denying Raccoon Creek's application for GDP approval.

Separately, Remington and Bach submitted invoices to the Township —— with copies to Raccoon Creek —— for their review services rendered to the Planning Board in connection with the GDP application.3  Remington submitted three invoices (July 9, 2007;  September 6, 2007;  and November 26, 2007) totaling $40,370.18.   Bach submitted two invoices (July 28, 2007 and August 28, 2007), which totaled $7982.50.

What happened next with respect to these bills is unclear.   We have none of the correspondence that supposedly passed between the Township and Raccoon Creek, nor do we have Raccoon Creek's letter-appeals to the Gloucester County Construction Board of Appeals (the CBA).   Nevertheless, a proceeding commenced at the CBA, and non-evidentiary hearings were conducted near the end of 2007.   This ultimately resulted in Raccoon Creek's first action in lieu of prerogative writs challenging the CBA's denial of Raccoon Creek's challenge to the professionals' bills.   In June 2008, the Law Division remanded the entire matter to the CBA for a plenary proceeding.

The CBA followed the Law Division's mandate by conducting evidentiary hearings on December 10 and 17, 2008, and on April 22, 2009.   Representatives of Remington and Bach testified in detail to explain the basis for each of their charges.4  Remington also supplied several post-invoice memoranda, authored by eleven individuals who performed work on the GDP application, to further describe the scope of services that had been performed.5

Raccoon Creek presented the testimony of its “[m]anaging member,” David Meiskin, who had twenty years of experience in New Jersey working on sixty development projects, and who was “ultimately responsible” for, among other things, “reviewing the bills of the various professionals that [he] hired for [the Port Royale] development application.”   Meiskin was initially offered “as a fact witness and as someone with expertise in reviewing the tasks that are performed and the various areas of tasks that are performed and that are reflected, written reports and billing for these reports.” 6  After objections were made to Meiskin rendering expert opinions about the challenged professional fees, Raccoon Creek decided to simply “present [Meiskin] as a person knowledgeable in the field.”

Meiskin ultimately testified about the parties' Mount Laurel settlement and the subsequent steps taken to implement its terms.   He indicated that there were several meetings with the Township's professionals “so that they would tell us their concerns, we would then specifically address them, reports, testimony, maps, whatever was required.”   Meiskin then criticized the alleged duplication and make-work of Remington and Bach:

[A]lmost 80 hours that were Bach, we have (inaudible) basically three bills, and Remington & Vernick, 431 hours, which is ten and-a-half work weeks at eight hours a day, five day workweek, and so four months which is 16 weeks?   You have ten and-a-half weeks, on something that had been gone through, there were review letters done beforehand, so it wasn't like nobody was taking notes and nobody was telling us what had to be done.   All of our replies were done where we underlined and we said this is the response letter.   Nobody had to go hunting.   Nobody had to see whether we were addressing things correctly.

Furthermore, without identifying anything specific, Meiskin claimed,

The work that was done by Bach Associates, where when I pull out the review letter from the same meeting, I got the same review done by Remington & Vernick.   Why do I have two of these?

At the conclusion of the CBA's December 17, 2008 hearing, the matter was re-scheduled for further testimony.   After several adjournments, the CBA's attorney sent a notice to the parties on March 12, 2009, scheduling April 22, 2009, as a “preemptory date” to continue the matter.   The correspondence further “required ” (emphasis in the original) Raccoon Creek to provide detailed information —— “consistent with the [CBA's] obligations as set forth under N.J.A.C. 5:23–2.2” —— synthesizing its challenge to the contested fees no later than March 27, 2009.   The CBA sought “a complete listing of all escrow fees that [Raccoon Creek] contests the validity or amount.”   For each contested amount, the CBA also asked Raccoon Creek to provide specifics, such as legal authority and the amount of time it believed it should have been charged for the tasks performed, to support its appeal.   Conversely, the CBA requested that Remington and Bach respond to Raccoon Creek's comprehensive billing challenge by April 10, 2009.

Raccoon Creek never answered the demand for information, and at the April 22, 2009 hearing argued that the professionals' invoices that themselves lacked specificity were sufficient to comply with the CBA's order.   Indeed, Raccoon Creek took the position that “no responses were furnished in response to your March 12th letter because responses to the letter were self-evident from the testimony and evidence previously supplied and set forth.”   Throughout the balance of the hearing, several CBA members reiterated their concerns regarding Raccoon Creek's failure to direct the CBA's attention to specifically contested fee entries.

At the conclusion of the April 22 hearing, the CBA reached its decision, granting in part Raccoon Creek's appeal as to Remington, and denying Raccoon Creek's appeal relating to Bach.

In its May 6, 2009 memorializing decision, the CBA upheld Bach's total bill of $7982.50, concluding as follows:

Based upon the evidence presented, including all testimony and documentary evidence, ․ which involved detailed reviews, calculations, compliance with DEP, traffic, utilities, stormwater, Delaware River impact, soil contamination, dredge spoil issues and even a bald eagle nesting site located on the property to be developed, ․ all billings of Bach [ ] be found appropriate under N.J.S.A. 40:55D–53.2a and therefore ․ the appeal should be denied as to all Bach billings.

Concerning Remington's fees, the CBA accepted Remington's voluntary bill reduction of $2,047.57 and further reduced the billed amount by the monetary value of thirty-seven hours for “certain work performed by Alena Fisher.”   Consequently, Remington's revised total bill was $35,233.61.   Raccoon Creek then filed its second action in lieu of prerogative writs on June 5, 2009.

Raccoon Creek's five-count complaint sought traditional in-lieu remedies demanding review and reversal of the action of the CBA. In addition, it also sought “compensatory and consequential damages” from the Township, Planning Board, Remington, and Bach for “hav[ing] partially breached the terms and provisions of the [Mount Laurel settlement] [a]greement with respect to those provisions that require cooperation, good faith, and the avoidance of cost generating features, conduct, and action.”   Furthermore, Raccoon Creek sought punitive damages against the Township, Planning Board, Remington, and Bach for

[their] conduct, actions, and inactions ․ and their demand and claim for fees, as reflected in the invoices of [Remington] and [Bach], [which] were undertaken willfully, knowingly, and intentionally ․ with purpose of harming and causing damages and injury to [Raccoon Creek] and undermining and contravening the terms, purposes, objective, and intent of the [Mount Laurel settlement] [a]greement with respect to those provisions that require cooperation, good faith, and the avoidance of cost generating features, conduct, and action.

Remington and Bach filed a counterclaim seeking judgment in their favor for the amounts determined appropriate by the CBA, plus interest.7

Instead of awaiting trial or (as far as the record reveals) even conducting discovery on the counts seeking damages, the parties filed cross-motions for summary judgment addressing only the propriety of the action of the CBA.8 On March 18, 2013, after considering the parties' submissions and oral argument conducted on March 8, 2013,9 the motion judge issued a six-page Memorandum of Decision.   The judge canvassed the administrative record, applied the substantial evidence standard of review, and concluded as follows:

[Raccoon Creek] was given more than sufficient opportunity to present its case, but did not do so.  [Raccoon Creek] failed to carry its burden.   [Remington] and Bach were not required to produce testimony by each employee who worked on the project.   The witnesses who did testify supervised the other employees who worked on the project and were competent to testify regarding the necessity of the services performed and the reasonableness of the amounts charged for those services.  [Raccoon Creek] was afforded adequate due process.   The [CBA]'s decision is supported by substantial credible evidence.   It was not arbitrary, capricious or unreasonable.

Given the limited inquiry to be undertaken and the court's prior ruling that judicial review in this matter would be based on the record below, it is appropriate to adjudicate this matter by way of motion for summary judgment.

For these reasons, [Raccoon Creek's] motion for summary judgment is denied and defendants' motion for summary judgment is granted.   The decision of the [CBA] stands.  [Raccoon Creek] shall remit payment of the professional fees awarded by the [CBA] to [Remington] ($35,233.61) and Bach ($7,982.50) within twenty (20) days of the date of this decision.  [Raccoon Creek's] complaint is dismissed with prejudice.

This appeal followed.

On appeal, Raccoon Creek presents the following arguments for our consideration:

POINT I:  THE TRIAL COURT'S ORDERS GRANTING SUMMARY JUDGMENT TO DEFENDANTS AND DENYING JUDGMENT IN FAVOR OF RACCOON [CREEK] MUST BE REVERSED BECAUSE IT ERRED IN AFFIRMING THE DECISION AND DECISIONMAKING PROCESS OF THE CONSTRUCTION BOARD OF APPEALS, WHICH WERE ARBITRARY AND CAPRICIOUS, VIOLATED STATUTORY AND CASE LAW, NOT BASED ON SUBSTANTIAL CREDIBLE EVIDENCE, AND WHICH RAN AFOUL OF GUARANTEES OF FUNDAMENTAL FAIRNESS.

A. THE TRIAL COURT ERRED IN FAILING TO DETERMINE THAT THE CBA'S CONDUCT OF THE HEARING, DECISIONMAKING, AND DECISION WERE FLAWED, THAT IT IMPROPERLY RECEIVED EVIDENCE, FAILED TO FOLLOW THE APPLICABLE STATUTORY STANDARDS AND REQUIREMENTS, AND MISUNDERSTOOD AND MISAPPLIED APPLICABLE LAW.

1. THE CBA'S CONDUCT OF THE HEARING WAS IMPROPER.

2. THE INVOICES FAILED TO IDENTIFY SPECIFICALLY THE SERVICES RENDERED AND WERE STATUTORILY DEFICIENT.

3. LACK OF A VOUCHER IS FATAL TO COUNTERCLAIMAINT'S CASE.

4. THE CBA AND TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO DRAW ADVERSE INFERENCES FROM THE ABSENCE OF WITNESSES.

5. [REMINGTON] AND BACH'S REVIEW EXCEEDED THE SCOPE OF WORK REASONABLE AND NECESSARY FOR A GENERAL DEVELOPMENT PLAN APPLICATION, AND THEIR WORK WAS DUPLICATIVE AND REDUNDANT.

6. [REMINGTON], CONTRACTED FOR AS THE TOWNSHIP ENGINEER, AND NOT AN OUTSIDE CONSULTANT EMPLOYED FOR ITS SPECIAL EXPERTISE ON THIS APPLICATION, DOES NOT QUALIFY FOR REIMBURSEMENT, NOR DO CERTAIN PERSONNEL WHO LACKED PROFESSIONAL LICENSURE.

B. THIS COURT SHOULD REVERSE AND VACATE THE JUDGMENTS, RELIEVE RACCOON [CREEK] OF ANY LIABILITY TO [REMINGTON] AND BACH, AND AWARD RACCOON [CREEK] ATTORNEY'S FEES AS DAMAGES TO RECOMPENSE IT FOR HAVING TO PURSUE RELIEF IN FRONT OF THE CBA AND THE COURTS.

Because Raccoon Creek's contentions are unpersuasive, and we agree substantially with the March 18, 2013 rationale expressed by Judge Richard J. Geiger, we affirm substantially for the reasons he expressed, with one modification.

II.

Although the CBA is not an agency whose work is regularly reviewed through the lens of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D–1 to –163, its delegated authority to resolve professional review fee disputes pursuant to N.J.S.A. 40:55D–53.2a brings it firmly within the MLUL's orbit.   We exercise plenary review of judgments in actions in lieu of prerogative writs under the MLUL, using the same standard as the trial court.  CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of Adj., 414 N.J.Super. 563, 577 (App.Div.2010).

Thus, our task on appeal is governed by the substantial evidence standard.   See Bressman v. Gash, 131 N.J. 517, 529 (1993) (holding that appellate courts are bound by the same scope of review as the Law Division and should defer to the local land-use agency's broad discretion).   Also, “we look at the law with fresh eyes and need pay no deference to legal conclusions reached by the trial court.”  Fair Share Hous. Ctr., Inc. v. N.J. State League of Municipalities, 207 N.J. 489, 493 n.1 (2011).

Furthermore, both the Law Division and we must grant substantial deference to the CBA's decision.  D. Lobi Enters. v. Planning/Zoning Bd. of Sea Bright, 408 N.J.Super. 345, 360 (App.Div.2009).   The decision of the CBA is presumed to be valid.  Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windsor Twp., 172 N.J. 75, 81 (2002).   Finally, an administrative agency's determination will be set aside only when it is arbitrary, capricious, or unreasonable.  Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965).

The burden is on the challenging party to overcome this highly deferential standard of review.   See Smart SMR of N.Y., Inc. v. Borough of Fair Lawn Bd. of Adj., 152 N.J. 309, 327 (1998).   A court must not substitute its own judgment for that of the agency unless there is a clear abuse of discretion.   See Cell S., supra, 172 N.J. at 82.

This case arises in the context of the MLUL's provisions providing for the payment to professionals for services rendered for review of an application for development.  N.J.S.A. 40:55D–53.2(a).   A GDP, defined in N.J.S.A. 40:55D–4, is a species of an application for development.   See N.J.S.A. 40:55D–3.

A municipality is authorized to require developers to make “a deposit toward anticipated municipal expenses for these professional services.”  N.J.S.A. 40:55D–53.2(b).  Those fees must be “reasonable and necessary, given the status and progress of the application.”  N.J.S.A. 40:55D–53.2(e).

If an escrow account is established, the municipality's chief financial officer is authorized to charge payments made to professionals against the escrow deposit, based upon “a voucher from the professional, which voucher shall identify the personnel performing the service, and for each date the services performed, the hours spent to one-quarter hour increments, the hourly rate and the expenses incurred.”  N.J.S.A. 40:55D–53.2(c).  “The professional shall send an informational copy of all vouchers or statements submitted to the chief financial officer of the municipality simultaneously to the applicant,” and an accounting of funds shall be provided to the applicant on a regular schedule.  Ibid. “If an escrow account or deposit contains insufficient funds to enable the municipality ․ to perform required application reviews[,] ․ the chief financial officer of the municipality shall provide the applicant with a notice of the insufficient escrow or deposit balance.” 10  Ibid.

N.J.S.A. 40:55D–53.2a provides the exclusive method of disputing charges made by a professional for service rendered to the municipality in reviewing applications for development.  Wynfield Corp. v. Killam Assocs., 385 N.J.Super. 20, 31 (App.Div.2006) (holding that the plaintiff was only entitled to pursue an appeal against the municipality in order to obtain a credit to be applied to the escrow account it maintained for review fees).   The MLUL requires that the municipality, or its designee, “attempt to remediate any disputed charges,” and failing that, “the applicant may appeal to the county construction board of appeals.”  N.J.S.A. 40:55D–53.2a(a).   If payment by the chief financial officer of the municipality is made to a non-employee professional before a charge is disallowed by the construction board of appeals, “the professional or consultant shall reimburse the municipality in the amount of any such disallowed charge.”  N.J.S.A. 40:55D–53.2a(d).

In the present case, the CBA and Judge Geiger both were struck by Raccoon Creek's failure to identify, much less, contradict, the billings for the GDP review conducted by Remington and Bach. The CBA expressly instructed Raccoon Creek to come forward with an organized objection, rather than contest the fees based upon a haphazard and scattered approach that transparently sought to shift the burden of proof to the professionals.   Although this appeal may be readily resolved simply on the basis that Raccoon Creek failed to demonstrate that the billed fees were either unreasonable or unnecessary, we briefly address its other contentions.

Raccoon Creek bitterly complains that the administrative record relied upon by the CBA included “memoranda written by various personnel of [Remington], not in the normal course of business and simultaneous with the work performed by these personnel, [and] penned months later in specific response to the filing of Raccoon [Creek]'s appeal.”   It asserts that this hearsay violates N.J.A.C. 5:23A–2.2(a) and –2.2(e)(1), which provide as follows:

(a) All parties to any dispute shall be accorded full opportunity to address the construction board of appeals, present testimony and examine and cross-examine witnesses, consistent with reasonable rules of procedure and due process.   All testimony shall be under oath or affirmation.

(e) ․

(1) Both parties shall be allowed to present witnesses and offer evidence and to examine and cross-examine witnesses, consistent with principles of due process and fairness.   Motions and objections may be filed in writing without the necessity of an appearance by the party, but written testimony not subject to cross-examination shall not be allowed;  provided, however, that any writings that would be admissible in a court of law shall not be deemed to be included within the prohibition of “written testimony.”   Any board member may question any witness at the conclusion of that witness' questioning by the parties.

We cannot agree.

By making this argument, Raccoon Creek seeks to turn the burden of proof on its head.   The invoices at issue, while perhaps not as definitive as Raccoon Creek would like, comply with the MLUL. All that is required is that they “identify the personnel performing the service, and for each date the services performed, the hours spent to one-quarter hour increments, the hourly rate and the expenses incurred.”  N.J.S.A. 40:55D–53.2(c).  If Raccoon Creek wished to examine the personnel who worked, it could have done so by requesting that the CBA subpoena them to testify.   In light of the paucity of proofs presented by Raccoon Creek, we detect no evidentiary violation by the CBA.

Moreover, N.J.S.A. 40:55D–10(e) relaxes the “technical rules of evidence.”   Under the MLUL, the agency may nevertheless elect to “exclude irrelevant, immaterial or unduly repetitious evidence.”  N.J.S.A. 40:55D–10(e).   Consequently, it is common practice for administrative agencies to receive hearsay evidence at their hearings.  Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 359 (2013).  “ ‘Hearsay may be employed to corroborate competent proof, or competent proof may be supported or given added probative force by hearsay testimony.’ ”  Ibid. (quoting Weston v. State, 60 N.J. 36, 51 (1972)).   Although “ ‘a fact finding or a legal determination cannot be based on hearsay alone[,]’ ” when reviewing a municipal agency's decision, the trial court must ensure there is “a residuum of legal and competent evidence in the record to support it.”  Ibid. However, the residuum rule “does not require that each fact be based on a residuum of legally competent evidence but rather focuses on the ultimate finding or findings of material fact.”  Ibid.

Furthermore, the explanatory fee memoranda submitted by Remington employees who worked on the review of Raccoon Creek's GDP application were based on invoices already moved into evidence, and merely provided further explanation of the tasks performed and services billed.   We have found that professional invoices can be substantiated through supplemental submissions in the municipal agency setting.   See Wynfield Corp., supra, 385 N.J.Super. at 27 (noting the trial court properly allowed defendant the opportunity to substantiate its bills for project coordination and travel time).

Raccoon Creek further argues that the professionals failed to submit “vouchers” for their services, thereby rendering their claims fatally defective.   Although N.J.S.A. 40:55D–53.2(c) speaks of submitting “vouchers to the chief financial officer of the municipality,” the MLUL does not define “voucher.”   We recognize that a voucher is a type of financial document utilized by contract vendors to request payment from their public entity contract partners.   Vouchers become public records once submitted, and are important tools for maintaining transparency in governmental fiscal affairs.   See, e.g., N.J.S.A. 47:1A–5(e) (requiring immediate access to governmental budgets, bills, vouchers, and contracts).   However, we find nothing amiss in Remington and Bach's use of invoices instead of vouchers, particularly where the information contained in the invoices complied with the disclosure requirements of N.J.S.A. 40:55D–53.2(c).  See Wynfield Corp., supra, 385 N.J.Super. at 24 (reviewing professional's seven invoices under the MLUL's professional fee dispute mechanism).

Raccoon Creek also challenges the scope of Remington and Bach's work, claiming that a GDP application is a simple procedure, requiring only cursory review.   See Citizens United to Protect Maurice River, etc. v. City of Millville Planning Bd., et al., 395 N.J.Super.   434 (App.Div.2007) (recognizing that although N.J.S.A. 40:55D–45.2 specifies those matters that must be considered in a GDP application are practically identical with factors to be considered in connection with all subdivision and site plan applications, such matters are to be considered in a general way from the standpoint of probable feasibility, with the more detailed presentations being left until the more specific application for preliminary approval is sought).

Our review of the record convinces us that the myriad long-term issues implicated by Raccoon Creek's development proposal were both complicated and of great significance to the public interest.   We cannot fault the professionals for taking their tasks seriously and acting in concert with their views of what the Planning Board needed to address in its GDP application review.

Moreover, Raccoon Creek failed to provide the CBA with specific information or support as to what it deemed unreasonable and unnecessary about the professional fees in light of the supposed simplicity of the GDP application.   Concerning the duplicative and redundant nature of Remington and Bach's services, Raccoon Creek laments that neither Remington nor Bach explained why “non-COHA/affordable housing related planning issues covered in Bach's review letters were discussed again in the [Remington] letters.”   Yet, again, Raccoon Creek merely states, in conclusory fashion, that the professional's services were duplicative and redundant.   Not once did Raccoon Creek detail a specifically contested charge —— even after receiving a written directive by the CBA to outline specific fee challenges, after being supplied with additional explanatory fee memoranda by Remington, and after several requests by the CBA to argue with specificity and provide substantive evidence that indicated lack of reasonableness or necessity.   Armed with only generalizations, the CBA properly considered Raccoon Creek's fee challenges.

Raccoon Creek's remaining arguments are without sufficient merit to warrant further discussion.   R. 2:11–3(e)(2).   However, we observe one defect in the judgment entered by the Law Division that requires modification.   Notwithstanding Remington and Bach's counterclaim, the statute, as we have noted, does not give a direct cause of action by a developer against a professional, and vice versa.   See Wynfield Corp., supra, 385 N.J.Super. at 32–33.   Accordingly, the professionals are not entitled to a money judgment against Raccoon Creek;  instead, they are entitled to resort to the escrow account (based upon the assumption that there is one), and because there is no statutory provision for the payment of interest on delinquent payments into that escrow, the professionals are not entitled to interest.   Thus, we vacate the direct judgment against Raccoon Creek and instead remand to the Law Division for the entry of a judgment requiring Raccoon Creek to deposit the CBA-determined amounts in the presumed escrow account pursuant to N.J.S.A. 40:55D–53.2(c).

Affirmed as modified.

FOOTNOTES

1.  FN1. The Law Division entered two orders to memorialize its determination.   One order denied Raccoon Creek's application for judgment in its favor;  the other order granted Remington and Bach's joint motion for summary judgment.

2.  FN2. See, e.g., S. Burlington Cnty. N.A.A.C.P. v. Twp. of Mount Laurel (Mount Laurel I ), 67 N.J. 151 (1975);  S. Burlington Cnty. N.A.A.C.P. v. Twp. of Mount Laurel (Mount Laurel II ), 92 N.J. 158 (1983).   See also In re Adoption of N.J.A.C. 5:96, 215 N.J. 578 (2013).

3.  FN3. The record does not include a copy of the Township's ordinance obligating Raccoon Creek to pay for professional review fees.   Although the Township and Planning Board claim that such an ordinance exists, and that it required Raccoon Creek to establish an escrow deposit pursuant to N.J.S.A. 40:55D–53.1, there is no record evidence that such an escrow account was ever established, except based upon the representations of counsel at oral argument of this appeal, and a stray reference to an escrow account made by the attorney for Remington and Bach during a December 10, 2008 hearing of the Gloucester County Construction Board of Appeals.

4.  FN4. Remington's witnesses were three licensed professional engineers who all worked on Raccoon Creek's GDP application and testified to the tasks performed, the necessity of that work, and the amount of time spent completing those tasks.   Bach offered one witness, its principal, to explain the work performed by Bach employees, and the invoices submitted.

5.  FN5. Only three of the eleven authors of supplemental memoranda were present at the CBA hearings.

6.  FN6. Meiskin, a 1982 college graduate with a concentration in “Marketing Management,” was neither a licensed civil engineer nor a professional planner.

7.  FN7. The record does not contain the pleadings of the public entities, contrary to Rule 2:6–1(a)(1)(A).

8.  FN8. Summary judgment is ordinarily inappropriate in an action in lieu of prerogative writs involving an appeal from local action on a development application.   See Cox & Koenig, N.J. Zoning & Land Use Admin. § 33–1.1 (2014) (noting, however, “[a]s the trial is on the record below, the procedure is essentially akin to a summary judgment motion”).   The use of this technique in this case, with the damage claims not addressed in summary judgment motion practice, leads us to the conclusion that Raccoon Creek abandoned its damage claims in the Law Division.   Because the March 18, 2009 order dismissed Raccoon Creek's complaint, and the damage claims were never addressed on appeal, they have clearly been waived.   See Santiago v. N.Y. & N.J. Port Auth., 429 N.J.Super. 150, 154 n.2 (App.Div.2012), certif. denied, 214 N.J. 175 (2013).

9.  FN9. Other than the cryptic reference in Raccoon Creek's appellate brief to “much procedural delay,” we cannot explain why it took forty-five months for this action in lieu of prerogative writs to reach its disposition.

10.  FN10. As we have previously noted, we cannot detect the existence of an escrow account or a deposit in the present case, although the parties seem to agree that such an arrangement existed.

PER CURIAM

FindLaw Career Center


      Post a Job  |  View More Jobs

    View More