KEILUHN VENTURE VS. CLAYTON PROVIDENCE HOUSE, LP (C-000035-16, GLOUCESTER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2697-16T4

KEILUHN VENTURE,1

Plaintiff-Respondent,

v.

CLAYTON PROVIDENCE HOUSE, LP;
TWO CLAYTON PROPERTIES, LLC;
INTERNATIONAL SENIOR DEVELOPMENT,
LLC; and STUART D. MILLS,

Defendants-Appellants,

and

BOROUGH OF CLAYTON and PLANNING
BOARD OF THE BOROUGH OF CLAYTON,

Defendants-Respondents.
__________________________________

Argued May 9, 2018 – Decided July 13, 2018

Before Judges Manahan and Suter.

On appeal from Superior Court of New Jersey,
Chancery Division, Gloucester County, Docket
No. C-000035-16.

1
By order dated October 4, 2017, Delsea Housing Associates
(Delsea Housing) was substituted as a party for Keiluhn Venture
in this appeal. For purpose of clarity, we have utilized the
original caption. We note the appearance of Delsea Housing's
counsel in the opinion.
 Vincent D'Elia argued the cause for
appellants.

Harris Neal Feldman argued the cause for
respondent Delsea Housing Associates Urban
Renewal, LLC (Parker McCay, PA, attorneys;
Harris Neal Feldman, of counsel; Stacy L.
Moore, Jr., on the brief).

Lewis G. Adler argued the cause for respondent
Keiluhn Venture.

M. James Maley, Jr., argued the cause for
respondent Borough of Clayton (Maley Givens,
PC and Timothy D. Scaffidi, attorneys; M.
James Maley, Jr., and Erin E. Simone, on the
briefs).

John A. Alice, attorney for respondent
Planning Board of the Borough of Clayton.

PER CURIAM

Defendants Clayton Providence House, LP, Two Clayton

Properties, LLC, International Senior Development, LLC, and Stuart

D. Mills (collectively, the Mills defendants) appeal from a

judgment and two orders of the Chancery Division. The order of

December 5, 2016, granted enforcement of litigant's rights

relative to an easement in favor of plaintiff Keiluhn Venture

(Venture). Another order dated December 5, 2016, denied the Mills

defendants' motion to amend their pleadings. The judgment dated

January 18, 2017, formalized the executed easement and Maintenance

Agreement for purpose of recordation.

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 The litigation commenced upon the filing of a verified

complaint and order to show cause by Venture, which sought to

compel the execution and recording of an easement agreement. The

easements within the agreement were a condition of approval for

an affordable housing project known as "Clayton Mews Senior Campus"

(Clayton Mews) and related to the subdivision of a property

situated in the Borough of Clayton (Borough).

The dispute originated with an application by the Mills

defendants seeking approval for a construction project. In October

1999, the Borough of Clayton Planning Board (Board) granted

"Amended Preliminary Site Plan and Final Site Plan Approval" to

International Senior Development, LLC (ISD) for Phase I of a multi-

phase project. The project involved the construction of age-

restricted affordable housing, later to be known as Clayton Mews.

The approval was memorialized in a resolution of the Board. A

condition of the approval was for the applicant to obtain easements

for emergency access and for utilities.

The original plan contemplated construction utilizing both

lots on the property (Lots 6 and 13). In June 2000, after

application by ISD, subdivision approval was granted to allow Lot

6 to be divided from Lot 13. The approval was memorialized in a

resolution by the Board. A condition of the approval was, among

other conditions, that within the deed memorializing the

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subdivision, there be easements and restrictions "necessary to

prevent or require development on the section of the land being

subdivided . . . ." The resolution also required, pursuant to

prior site plan approval, that the easements were to extend to the

Borough.

The construction of Clayton Mews was to be accomplished in

phases. In 2002, the Board granted an amended final site plan

approval to Phase I and an amended preliminary site plan approval

to Phases II, III and IV. The approval was memorialized in a

resolution by the Board. A condition of the approval was a

modification of the plan to conform to the Board engineer's report

and that "the approved subdivision and associated easements" be

incorporated into the site plan drawings.

When the plans were revised, they did not reflect the required

easements. Nor were any easement documents prepared or recorded.

Notwithstanding, the filed plans clearly referenced the need for

access and utility service for both lots.

Financing for Clayton Mews was obtained by the execution of

mortgages by Clayton Providence House with several financial

providers. Each of the mortgages was conditioned upon construction

in accordance with the approvals.

In December 2006, Two Clayton Properties deeded Lot 13 to

Venture. In March 2016, Venture submitted an application to the

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"Combined Planning Board and Zoning Board of Adjustment" (Combined

Board) of Clayton. Venture sought to construct an affordable

housing project, later known as "Camp Salute." The project

included a twenty-five percent set-aside for disabled veterans.

The Combined Board granted site plan approval in April 2016. The

approval was memorialized in a resolution by the Combined Board.

The resolution required that there be "shared access and utilities

as has been recommended by the mayor and council." The resolution

noted that the New Jersey Department of Transportation wanted

shared access for emergency access to Clayton Mews.

Thereafter, Venture sought to secure the easements required

by the resolution as well as the prior resolution relating to the

approval of Clayton Mews. When the Mills defendants refused to

execute the easement documents, Venture filed the underlying

action.2

Following a hearing on the order to show cause, the court

ordered that the Mills defendants were temporarily and

preliminarily enjoined and restrained and compelled to execute the

various applications and easement documents. The August 17, 2016

order specifically required that the Mills defendants execute the

2
It is without dispute that neither the Borough nor the Board
were aware that the easements were not recorded. It is also
without dispute that neither the Borough nor the Board took steps
to enforce the easement recordation requirement.

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easement agreement prepared by plaintiffs, or alternatively,

submit a proposed form of easement pursuant to the Five Day Rule

for execution. It was further ordered the "[u]pon receipt of

pla[intiff]'s objections/proposed language, the court will conduct

a hearing to settle [the] form of easement within [five] days."

A week later, the Mills defendants submitted a proposed form

of easement to the court. Venture objected to the proposed form

of easement and submitted its proposed form of easement. The

judge did not conduct a hearing to resolve the conflicting proposed

orders.

On October 4, 2016, the Mills defendants filed a motion

seeking to amend their answer to assert a counterclaim and a third-

party complaint to include the several mortgage holders of its

property as parties. In reply, Venture and the Borough filed

cross-motions to enforce litigant's rights, seeking to compel

enforcement of the August 17, 2016 order requiring execution of

the easement and other documents.

Argument on the motions took place on December 5, 2016.

Following argument, the court entered two orders granting the

cross-motions and denying the Mills defendants' motion to amend.

When the Mills defendants did not comply with the order to sign

the easements, another hearing was held, after which the judge

authorized court-execution of the easement agreement and the

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various applications proposed by Venture. Final judgment was

entered on January 18, 2017.3 This appeal followed.4

The following points were raised by appellant on appeal:

POINT I

THE TRIAL COURT ERRED IN ORDERING THE SIGNING
AND RECORDING OF AN EASEMENT WHERE THE TERMS
AND CONDITIONS OF SAID EASEMENT HAD NOT BEEN
AGREED UPON BY THE AFFECTED PROPERTY OWNERS.

POINT II

THE TRIAL COURT ERRED IN DENYING
DEFENDANT/APPELLANT'S MOTION TO AMEND ITS
RESPONSIVE PLEADINGS AND JOIN NECESSARY
PARTIES.

We have considered these arguments in light of the record and

our standard of review and conclude that they lack sufficient

merit to warrant extended discussion in a written opinion. R.

2:11-3(e)(1)(E). We add only the following.

After considering the resolutions granting subdivision and

site plan approval, the judge found:

3
We note parenthetically that the Mills defendants did not seek
a stay of the judgment. We were advised during oral argument that
the Camp Salute project was substantially completed and accepting
applications.
4
On or about June 19, 2017, the Borough instituted a condemnation
action entitled Borough of Clayton v. Clayton Providence House,
et al, Docket No. L-746-17, in the Superior Court of New Jersey,
Law Division, Gloucester County, seeking to acquire easements. It
was argued by the parties that this action did not render moot the
issues in dispute on this appeal.

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 I am satisfied that pursuant to the terms of
the 0019 [r]esolution, that it is the
defendant's obligation, it was the defendant's
obligation to provide these easements as a
condition of its approval. And its failure
to do so for a period of time does not result
in a removal of that obligation. There can
be no laches against the Township — or against
the Borough in such a situation such as this.

. . . .

In addition, given that it was initially
the defendant and it would have been the
defendant, whichever defendant was granted
that approval, then had the requirement.

So that I would give that defendant an
opportunity to provide its proposed language
within five days of the date of this [o]rder.
And then the other parties have five days from
receipt of that to either agree to it or
substitute your language.

A court's decision to grant or withhold equitable relief is

reviewed for an abuse of discretion, so long as the decision is

consistent with applicable legal principles. Marioni v. Roxy

Garments Delivery Co., 417 N.J. Super. 269, 275 (App. Div. 2010).

A chancery court possesses broad equitable powers. Cooper v.

Nutley Sun Printing Co., 36 N.J. 189, 199 (1961) (noting a "court

has the broadest equitable power to grant the appropriate relief").

Because "equity 'will not suffer a wrong without a remedy[,]'"

Crane v. Bielski, 15 N.J. 342, 349 (1954), "a court's equitable

jurisdiction provides as much flexibility as is warranted by the

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circumstances[.]" Matejek v. Watson, 449 N.J. Super. 179, 183

(App. Div. 2017). Consequently,

[e]quitable remedies are distinguished for
their flexibility, their unlimited variety,
their adaptability to circumstances, and the
natural rules which govern their use. There
is in fact no limit to their variety in
application; the court of equity has the power
of devising its remedy and shaping it so as
to fit the changing circumstances of every
case and the complex relations of all the
parties.

[Ibid. (quoting Sears Roebuck & Co. v. Camp,
124 N.J. Eq. 403, 411-12 (1938)).]

Further, a "court can and should mold the relief to fit the

circumstances[.]" Cooper, 36 N.J. at 199.

Our Supreme Court has stated: "In doing equity, [a] court has

the power to adapt equitable remedies to the particular

circumstances of each particular case." Rutgers Cas. Ins. Co. v.

LaCroix, 194 N.J. 515, 529 (2008) (alteration in original) (quoting

Mitchell v. Oksienik, 380 N.J. Super. 119, 130-31 (App. Div.

2005)). Recently, the Court stated: "A 'court [of equity] must

exercise its inherent equitable jurisdiction and decide the case

based upon equitable considerations.'" Thieme v. Aucoin-Thieme,

227 N.J. 269, 287 (2016) (alteration in original) (quoting

Kingsdorf ex rel. Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 157

(App. Div. 2002)). The Thieme Court further held "[e]quities

arise and stem from facts which call for relief from the strict

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legal effects of given situations." Id. at 288 (alteration in

original) (quoting Carr v. Carr, 120 N.J. 336, 351 (1990)).

Generally, "as between two innocent groups equity will impose the

loss on the group whose act first could have prevented the loss."

Zucker v. Silverstein, 134 N.J. Super. 39, 52 (App. Div. 1975)

(citing Cambridge Acceptance Corp. v. Am. Nat. Motor Inns, Inc.,

96 N.J. Super. 183, 206 (Ch. Div. 1967)).

Here, the failure by the Mills defendants to record the

easements in accord with the site plan approvals supported the

judge's equitable decision to enforce the terms and conditions of

the easement proffered by Venture. In other words, any "loss"

suffered by the Mills defendants by the decision was one they

could have prevented by compliance with the easement recordation

required pursuant to the site plan approval.

Finally, we reject the argument that the judge erred in not

granting the motion to amend the pleadings. First, the motion was

made after the judge made her decision. Second, the averments

that the easement agreement would trigger a default under the

mortgages was speculative at best. Even if not speculative, any

potential adverse consequence caused by the easement agreement was

known to the Mills defendants prior to the decision. Thus, the

denial is a matter left to the judge's sound discretion. Kernan

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v. One Wash. Park Urban Renewal Assocs., 154 N.J. 437, 457 (1998).

We discern no abuse here in the exercise of that discretion.

Affirmed.

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