Novak v. Cnty. of Warren

• Decision Date: 13 March 2018
• Docket Number: DOCKET NO. A-1531-16T3
• Parties: MARGIT C. NOVAK, Plaintiff-Appellant, v. COUNTY OF WARREN, a duly organized County in the State of New Jersey, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

MARGIT C. NOVAK, Plaintiff-Appellant, v. COUNTY OF WARREN,a duly organized County in the State of New Jersey, Defendant-Respondent.

DOCKET NO. A-1531-16T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted February 12, 2018

March 13, 2018

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 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.

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 suggestedplaintiff 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]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 theBoard. 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."

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.

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.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...