The approval of a 100+ room hotel in Lakewood was set aside by the Appellate Division for material deficiencies in the contents of the public notice, forcing the developer to re-start the approval process from scratch. The public notice of the application indicated that the plan was, "to construct a hotel as well as a bank," but omitted that the hotel was going to include a restaurant, bar and banquet facilities. The trial judge did not take issue with the contents of the notice, and found them to be "common amenities" for a hotel. However, the Appellate Division disagreed and remarked that, "[a] facility that is expected to be serving alcohol, and thereby inviting patrons who will drive to the location in order to consume intoxicating liquors, presents concerns of traffic and public safety that would reasonably be of concern to surrounding residents and property owners." Consequently, the appellate panel found the notice to be materially deficient and the approval granted by the Township was set aside. (Lakewood Realty Associates v. Lakewood Township Planning Board, et. al.)
A ten-year battle over a subcontractor lien claim was decided by the Appellate Division recently, and provided guidance regarding interpretation of the New Jersey Construction Lien Law ("CLL"). This case centered around a 100-unit residential development where the general contractor filed for bankruptcy, leaving its subcontractors unpaid. The subcontractor at issue in this lawsuit filed a lien claim in hopes of getting paid from the owner directly for its work performed in conjunction with the development. The lien was signed by the subcontractor's "Accounting and Information Systems Manager," and the issue before the court was whether or not this person was the appropriate signatory on the lien.
Prior to 2011, the CLL required that a lien claim be signed by a "duly authorized officer" of the company filing the lien. In 2011 the legislature revised the CLL and instead prescribed that a lien claim be signed by an “officer/member”, and included with the statute a revised lien claim form that indicated signature by, "the Secretary (or other officer/manager/agent) of the Corporation (partnership or limited liability company)”. In this matter, the Appellate Division held that this change in language was a new requirement that should be applied prospectively only, and was not a clarification of prior term of "duly authorized officer". Despite winning on this issue, the subcontractor ultimately failed to establish that its "Accounting and Information Systems Manager" was a duly authorized officer. The Court noted that: the subcontractor's Board of Directors did not identify the signer in any resolution, by-law provision, or other written document as a corporate officer; the subcontractor did not memorialize in writing that it authorized that person to execute lien claims; and on the subcontractor's requests for classification forms (which are needed for classification by the Division of Property and Management), the signatory was not identified as a corporate officer. As a result of having the wrong individual at the company sign the lien claim, the lien was dismissed and the subcontractor was left with no ability to recover the monies owed. (Diamond Beach LLC v. March Associates, Inc., et. al.)
In an unpublished decision released on February 4th, the Appellate Division cautioned that municipal officials who also sit on boards of the same municipality should minimize any ex parte communications with potential applicants before their board, and be careful not to discuss the merits of any potential application ex parte. Here, the court remanded the case to the trial level for further testimony regarding the nature and extent of the conversations at issue, but proclaimed that they, "cannot overstate how essential it is to the integrity of local governments that public officials who serve on municipal boards abstain from ex parte communications pertaining to matters before them and insulate themselves from any outside influences." (Lars Sternas v. DMH2, LLC, et. al.)
On Friday, the Appellate Division issued an unpublished decision that concluded a seven-year legal battle over whether or not a contract existed for the purchase of a $45,000,000 apartment building. The case emanated from a 2011 negotiation and bidding process where the defendant owner accepted the plaintiff’s offer to purchase the property for forty-five million dollars, but never signed a written contract. Defendant’s basis for not signing was that it desired to avoid an extremely large capital gains tax obligation and therefore insisted that it first secure a suitable 1031 exchange property before signing the contract. After months without signature, plaintiff initiated litigation arguing that a valid, enforceable contract existed.
The plaintiff alleged claims of breach of contract, breach of the implied covenant of good-faith and fair-dealing, promissory estoppel and fraud. After five years of litigation in the trial court, all of the claims were dismissed and a two-year appeal process followed. On February 14, 2019, the Appellate Division affirmed the trial court’s dismissal of all claims.
While the court acknowledged that in certain circumstances the Statute of Frauds permits enforcement of an oral agreement for the sale of real property, it found that such was not the case in these particular circumstances. Despite there being what the trial court described as an “avalanche of correspondence”, the court nevertheless found that there was no legally-enforceable contract in the absence of the defendant’s signature. The court referenced that throughout months of communications regarding the formal written contract, there were frequent statements that the communications were, "not contractually binding on the parties," were, "only an expression of the basic terms and conditions to be incorporated into a formal written agreement, " that, "the parties shall not be contractually bound unless and until they execute a form of contract which contract shall be in form and content satisfactory to each party and its counsel in their sole discretion," and that "[n]either party may rely on this letter as creating any legal obligation of any kind." This decision should serve as a reminder to purchasers of real property that any due diligence or other actions taken prior to a seller signing a contract are done so at their own risk. Until the there is a fully-executed contract, there will likely be no legally-enforceable contract except in limited circumstances. (SDK Troy Towers, LLC v. Troy Towers, Inc.)
Almost two decades ago, a Point Pleasant property owner was granted approval to build a two-family residence in a single-family zone. However, such approval was conditioned upon a provision that one unit was always owner-occupied, with such restriction enforced through a recorded deed restriction. On February 11th, in a published decision, the Appellate Division upheld a trial court finding that such a restriction, "impermissibly discriminated against renters, and wrongfully predicated the allowable use of the property on the identities of its occupants." In doing so, the court reiterated prior guidance that a zoning board can only regulate how the land is used, and not any particular person who owns or occupies the land. While the court understood the zoning board's desire to maintain the environment of a single-family zone, the panel found that if it wished to do so, "it never should have approved a variance for this two-family dwelling in the first place." Finally, although the action had taken place well outside the 45-day period to challenge certain government actions, the court applied the interests of justice exception from Hopewell Valley Citizens Grp. v. Berwind Prop. Grp. Dev. Co. (Tirpak v. Borough of Point Pleasant Board of Adjustment)
In the past few years, all New Jersey counties have begun to accept documents concerning real property that need to be recorded (such as deeds, mortgages, etc.) electronically, and some counties have imposed a "convenience fee" to electronically record such documents. On February 11, 2019 the Appellate Division outlawed these fees by striking down Essex County's $3 charge. Noting that the "clear object" of the relevant statute was to, "establish a uniform schedule of fees to be charged by all county registers or clerks," the court held that no law permitted the charging of such fees, and the counties lacked the legal authority to institute their own fees for the e-recording documents. Consequently, counties will not longer be permitted to charge these fees absent further appeal to the Supreme Court or action by the State Legislature. (New Jersey Land Title Association v. Dana Rone, County Register of the County of Essex)
In an unpublished decision issued on January 31st, the Appellate Division upheld a determination by the Middle Township Planning Board that the square footage inside a proposed Starbucks that was devoted to customer seating was properly excluded from the calculation of the required number of parking spaces for the site. At issue was a local ordinance requiring one parking space for each fifty square feet of gross floor area that was, "devoted to customer service," while also requiring one parking space for every four seats in the establishment. Starbucks successfully argued that requirement of one space per every four seats already addressed the parking needs for the square footage devoted to seating areas, and that to include the square footage of the seating area in determining the square footage "devoted to customer service" would be "double dipping". This interpretation was important as the plan submitted by Starbucks only included twenty-six parking spaces, much less than the required forty-one spaces that would have been required had they not been successful. However, the Appellate Division upheld the determination of the trial court, and affirmed that only eighteen spaces were required by ordinance and therefore no parking variance was necessary. (Delco, LLC v. Middle Township Planning Board, et. al.)
Peter J. Vazquez, Jr.