Squires Gate, Inc. v. County of Monmouth

• Decision Date: 20 March 1991
• Citation: 588 A.2d 824,247 N.J.Super. 1
• Parties: SQUIRES GATE, INC., a Corporation of the State of New Jersey, Plaintiff-Appellant-Cross-Respondent, and New Jersey Shore Builders Association, a Non-Profit Association, Plaintiff-Cross-Respondent, v. COUNTY OF MONMOUTH, Defendant-Respondent-Cross-Appellant, and Township of Freehold, a Municipal Corporation located in Monmouth County, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 1

247 N.J.Super. 1

588 A.2d 824

SQUIRES GATE, INC., a Corporation of the State of New Jersey, Plaintiff-Appellant-Cross-Respondent and New Jersey Shore Builders Association, a Non-Profit Association, Plaintiff-Cross-Respondent, v.COUNTY OF MONMOUTH, Defendant-Respondent-Cross-Appellant and Township of Freehold, a Municipal Corporationlocated in Monmouth County, Defendant.

Superior Court of New Jersey Appellate Division.

Argued Nov. 14, 1990.

Decided March 20, 1991.

Wayne J. Peck, Freehold, for appellant-cross-respondent and cross-respondent.

Robert J. Hrebek, Sea Girt, for respondent-cross-appellantCounty of Monmouth(Malcolm V. Carton, attorney, Avon).

Before Judges MICHELS, GRUCCIO and D'ANNUNZIO.

The opinion of the court was delivered by

GRUCCIO, J.A.D.

PlaintiffSquires Gate, Inc., (Squires Gate), appeals from the grant of summary judgment in favor of defendantCounty of Monmouth(County).The County cross-appeals from the grant of summary declaratory judgment in favor of Squires Gate and plaintiffNew Jersey Shore Builders Association(Shore Builders) and from the denial of its motion to dismiss.

Plaintiffs filed a complaint in lieu of prerogative writs against the County and defendant Township of Freehold (Freehold) on August 18, 1988.It alleged that the Monmouth County Planning Board(Planning Board) acted ultra vires in requiring Squires Gate to make a contribution for bridge improvements as part of the approval process for its proposed subdivision and sought the return of $93,456 which had been paid by Squires Gate.On December 20, 1988, the County filed an answer denying the complaint's allegations and asserting several affirmative defenses.Freehold filed its answer on October 19, 1988.

The briefs filed in this case indicate that on April 26, 1989, plaintiffs moved for summary judgment against the County.On June 12, 1989, the County evidently cross-moved for summary judgment and for dismissal of the complaint.¹Plaintiffs and Freehold resolved their controversy and, on June 26, 1989, entered into a consent order dismissing all claims against Freehold.

On July 24, 1989, the motion judge, in an oral opinion, held that the County had no authority under the County Planning Act, N.J.S.A. 40:27-1 to -6.13, to require Squires Gate to make contributions for bridge improvements necessary only for road safety purposes.However, he found that Squires Gate was not entitled to a refund of its contribution because it had paid the monies without objection or notice of objection, i.e., the volunteer rule.The judge also determined that the procedural objections raised by the County were without merit.

On October 20, 1989, Squires Gate appealed the grant of summary judgment in favor of the County and the denial of its cross-motion for summary judgment.On November 2, 1989, the County filed a cross-notice of appeal challenging the motion judge's denial of its motion for dismissal and the grant of Squires Gate's request for summary declaratory judgment.Shore Builders has not appealed.

There is little or no dispute between the parties regarding the facts underlying this action.It appears that Squires Gate is the owner of a subdivision known as Barker's Ridge, located on Three Brooks Road in Freehold.Squires Gate is a member of Shore Builders, an association of builders, developers, real estate agents, bankers and other entities connected with the construction industry in Monmouth and Ocean Counties.The application for subdivision approval of Squires Gate's predecessor-in-title, Bradgate Associates of New Jersey, Inc.(Bradgate), was received by the County Planning Board on May 12, 1986.On October 7, 1986, the County Planning Board's Subdivision and Site Plan Committee disapproved the project because the plan showed a widening of Three Brooks Road without the widening of its bridges.Apparently, Freehold required Bradgate to provide for the widening of the road to accommodate the additional traffic caused by the development.Freehold, of course, did not require that the bridges, which were part of the County drainage system, be widened.The Site Plan Committee concluded that the new road design would be hazardous to traffic, a fact that appears to be amply supported by a review of the plans submitted to us at oral argument.Bradgate did not appeal the disapproval.

Bradgate's counsel sought a meeting with the Monmouth County Planner to discuss the possibility of eliminating the bridge-widening requirement.The County Planner suggested that Bradgate's traffic engineer devise a design to lessen the hazards caused by the narrow bridges on the widened road.He also noted that the County might be more agreeable to Bradgate's project if it agreed to indemnify the County for any liability arising from the roadway's design.

On January 27, 1987, Bradgate's president, Roy K. DeBoer, voluntarily proposed that Bradgate post a cash escrow with the County for its proportionate share of the cost of widening the bridges on Three Brooks Road.After follow-up communications with the County on February 24, 1987, and May 12, 1987, DeBoer submitted revised preliminary drawings on May 28, 1987, and requested approval of the project.His letter is enlightening and, in part, states:

in light of the fact that we have agreed to participate and contribute to a fair share cost allocation agreement entered into by several private developers in the Township of Freehold and Monmouth County for the purpose of widening the entire length of Three Brooks Road and the several culverts involved thereon.

(emphasis supplied).DeBoer also stated: "Our application with the Township for preliminary has been approved conditioned upon us resolving this issue with the Monmouth County Planning Board.""Our timeline is critical in that [the widening of the entire length of the road and associated culverts] is the only issue holding up our commencement of construction."

On June 15, 1987, the Planning Board granted Bradgate preliminary approval for the Barker's Ridge subdivision with the condition that the developer contribute its proportionate share of the cost of reconstruction of the County drainage structures on Three Brooks Road.Obviously, this not only affects the bridge as a structure, but its associated culverts.The County granted Bradgate conditional final approval for the project on August 26, 1987, subject to Bradgate's payment of $93,456 to the County for its share of reconstructing the drainage structures.Sometime thereafter, Squires Gate, successor-in-title to Barker's Ridge, forwarded a check in that amount to the County, which was received on December 4, 1987.The Planning Board granted final approval for the project on December 10, 1987.Nine months later, Squires Gate filed this action for the return of the monies paid.

The parties agree that Three Brooks Road is under Freehold's jurisdiction and that the three bridges or culverts are under the County's jurisdiction as they are part of the County drainage system.The County maintains that the portions of roadway which cross the bridges are County roads as they are part of the County-controlled bridges.Squires Gate maintains, however, that the pavements are not County roads, but are under Freehold's jurisdiction.Squires Gate concedes, however, that the rest of the culverts are County-controlled.

The County contends that the motion judge incorrectly held that the Planning Board acted ultra vires in conditioning Squires Gate's subdivision approval upon its payment of a share of the cost of widening the necessary bridge and associated structures.The judge based his holding on two conclusions: (1) neither the County Planning Act nor the Monmouth County Site Plan Resolution granted the Planning Board the authority to impose such charges and (2) as the Planning Board's jurisdiction was based solely on the fact that the development would affect County drainage facilities, the Planning Board could not, under N.J.S.A. 40:27-6.2, -6.6, attach unrelated conditions to its approval.

The judge's conclusion that the Planning Board lacked the power to exact payment for off-site improvements under the proper enabling legislation was based on the Supreme Court's holding in Divan Builders, Inc. v. Planning Bd. of Wayne Tp., 66 N.J. 582, 334 A.2d 30(1975).There, a municipality required a developer to pay for part of a drainage project necessitated by the planned development.Id. at 588, 334 A.2d 30.The Supreme Court held that although the enabling legislation made no specific reference to off-site improvements, the purpose of the legislation indicated that such a requirement was allowed.Id. at 595-97, 334 A.2d 30.The Court there stated that questions of municipal authority must be resolved broadly in favor of the planning agency.Id. at 596, 334 A.2d 30.The Court also set forth that it is more fair for the developer to bear the expense of an improvement which benefits it directly rather than placing the burden on the community at large.Id. at 596-97, 334 A.2d 30.Moreover, the Court indicated it was permissible for municipalities to require developers to finance off-site improvements so long as costs were allocated proportionally among those benefiting from them.Id. at 598, 334 A.2d 30.

Here, as in Divan, the enabling legislation does not specifically allow the Planning Board to condition approval on a developer's contribution to necessary off-site improvements.SeeN.J.S.A. 40:27-6.2, -6.6;see alsoMonmouth County Subdivision Site Plan Resolution§ 12.01.As in Divan, they do allow the Planning Board to require on-site improvements.The policy considerations for allowing municipalities to condition subdivision approval on contribution for off-site improvements necessitated by developments apply equally to county planning boards.The only argument Squires Gate makes for reaching a conclusion contrary to that in Divan is that the Legislature did not choose...