ROBERT J. PACILLI HOMES, LLC VS. TOWNSHIP OF HARRISON(L-1378-15, 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NOT FOR PUBLICATION WITHOUT THE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-5236-15T1

ROBERT J. PACILLI HOMES, LLC,

Plaintiff-Appellant,

v.

TOWNSHIP OF HARRISON, a
Municipal Corporation of the
State of New Jersey, HARRISON
TOWNSHIP JOINT LAND USE BOARD
and REMINGTON & VERNICK,

Defendants-Respondents.
________________________________

Submitted September 20, 2017 – Decided November 1, 2017

Before Judges Simonelli and Rothstadt.

On appeal from Superior Court of New Jersey,
Law Division, Gloucester County, Docket No.
L-1378-15.

The D'Elia Law Firm, LLC, attorneys for
appellant (Vincent D'Elia, on the brief).

Mason, Griffin & Pierson, PC, attorneys for
respondent Harrison Township Joint Land Use
Board (Cory K. Kestner, of counsel and on the
brief).

Brian J. Duffield, attorney for respondent
Township of Harrison.
PER CURIAM

This appeal involves the enforcement of a settlement

agreement between plaintiff Robert J. Pacilli Homes, LLC, a

developer, and defendants Township of Harrison (Township), the

Harrison Township Joint Land Use Board (Board), and Remington &

Vernick (R&V), concerning a development known as Tesoro Estates

I. The Board passed a resolution granting plaintiff preliminary

and final major subdivision approvals to construct twenty-one

single-family residential units on the property, conditioned, in

part, on the installation of six-inch thick reinforced concrete

driveway aprons on each lot.

Plaintiff installed asphalt driveway aprons instead of

concrete aprons based on an alleged field change approved by the

Township's former engineer, J. Michael Fralinger, who died in 2009

without having documented his approval. In 2012, the Township's

new engineer, R&V, rejected the asphalt driveway aprons and

required plaintiff to remove and replace them with concrete

driveway aprons as required by the approvals. Plaintiff responded

that the project was already completed, and demanded a release of

the performance bond it posted to ensure completion.

To resolve the matter, plaintiff submitted an application to

the Board to amend the approvals and subdivision plan to permit

asphalt driveway aprons based on Fralinger's approval of the field

2 A-5236-15T1
change (the proposed change).1 The Board found it appeared that

Fralinger approved the change, but because it was not a minimal

or de minimus deviation, it was outside the scope of his authority

to approve and plaintiff had to return to the Board for a

modification to the requirement for concrete driveway aprons.

The Board considered plaintiff's application and determined

that because plaintiff and the president of the Homeowner's

Association, Mary Kay Trace, represented that all property owners

supported the application and did not want to remove the asphalt

driveway aprons, plaintiff's application "may be appropriately

granted upon certification and proof that all [property owners]

support the application." The Board passed a resolution, granting

the application subject to the following condition:

Within one year of the approvals granted
herein, [plaintiff] shall obtain and submit
to the Township's Land Use Administrator, the
written endorsement of all property owners
within the development, on a letter in a form
prepared by the Board Attorney, supporting and
accepting [plaintiff's] proposed change from
the concrete driveway aprons originally
approved to the asphalt aprons installed.

[(Emphasis added).]

In other words, plaintiff had to obtain the unanimous consent of

the property owners to the proposed change.

1
Plaintiff also sought other changes not pertinent to this
appeal.

3 A-5236-15T1
 Plaintiff filed a complaint in lieu of prerogative writs,

seeking to exscind the condition and compel the Township to release

the performance bond.2 Judge Georgia M. Curio held a settlement

conference on January 21, 2016. In a January 22, 2016 letter, the

Board's attorney, Kevin A. Van Hise, advised the judge that

"[p]ursuant to yesterday's settlement discussions . . . the Board

would be amendable to modifying the condition of approval

pertaining to the driveway aprons (requiring a majority sign-off

of property owners rather than unanimous consent)[.]" Thus,

instead of unanimous consent of the property owners, the Board

would approve the proposed change if a majority consented.

Van Hise enclosed a draft of a letter the Board would send

to all property owners. The letter notified the property owners

of plaintiff's application and the proposed change, and that as a

condition of approval, plaintiff had "to submit proof to the Board

that a majority of the [property owners] within the development

consent to this change by obtaining a countersignature to this

letter by each [property owner]." (Emphasis added). The letter

instructed the property owners to "indicate [their] consent or

objection below, sign where indicated, and return this form to

2
Plaintiff sought other relief not pertinent to this appeal.

4 A-5236-15T1
[the Board] as soon as possible." Plaintiff's attorney requested

a minor change to this letter, which did not affect its substance.

Trace sent a letter to the property owners, urging them to

respond to the Board's letter. The letter also advised the

property owners that the Board "agreed to abide by the decision

of the majority of homeowners, a concession from [the Board's]

original position to require a unanimous decision."

In a March 24, 2016 letter, Van Hise advised Judge Curio as

follows:

The proposed settlement was agreeable to co-
defendants, and by telephone conversation with
[p]laintiff's counsel on February 4, with
minor modification to the originally drafted
letter, I was advised that the settlement was
acceptable to [p]laintiff. As such, on
February 9th, the Township served, by
[c]ertified [m]ail [r]eturn [r]eceipt
[r]equested and [r]egular [m]ail, the agreed
upon letter to all property owners in the
development as listed on the official property
owners report provided by the Tax Assessor's
Office.

Van Hise also advised that of the twenty-one property owners,

seven consented to the proposed change, five objected, and nine

did not vote, and thus, a majority did not consent to the proposed

change.

All parties moved to enforce the settlement, and agreed there

was a settlement agreement and its terms were contained in Van

Hise's January 22, 2016 letter. The parties differed as to the

5 A-5236-15T1
meaning of the term "majority." Plaintiff argued that under the

By-Laws of the Homeowners Association, one-fourth, or six, of the

property owners constituted a quorum. Thus, under this construct,

it obtained the consent of more than a majority of the property

owners because seven consented to the proposed change. Defendants

argued that plaintiff did not obtain the consent of a majority of

all property owners, and thus, had not satisfied the condition of

the settlement.

Judge Curio denied plaintiff's motion and granted defendants'

motion. After reviewing the documentary evidence, the judge

interpreted the term "majority" to mean that plaintiff was required

to obtain the consent of a majority of the twenty-one property

owners to the proposed change, not a majority of only those who

voted. The judge reasoned as follows:

The conclusion that this has to be a
majority of the [property owners] is contained
in the correspondence of Mr. Van Hise . . .
to the [c]ourt, which memorialized the terms
of the settlement.

[It is] further corroborated in the
language of the [Board's] letter that was
prepared for circulation among the [property
owners]. Again, [it is] notable that it was
submitted to all of the [property owners] and
that . . . the language of it, the content of
it, was approved by then counsel for the
[p]laintiff.

And also, this notion that it's a
majority of the [property owners] versus some

6 A-5236-15T1
 other construct, is corroborated yet again by
the language . . . of a letter submitted to
all of the [property owners] by [Trace].

And so clearly, the terms of the
settlement required the vote of the majority
of the [property owners] and that was not
accomplished. [I am] not persuaded that the
argument that a quorum was achieved has
anything to do with this vote.

This was not a vote of the [H]omeowner's
[A]ssociation. This was a canvassing of all
of the [property owners] and . . . going from
the condition requiring unanimity of all
[property owners] to a lesser burden of a
majority of the [property owners].

I [do not] think that [there is] any
conclusion but that, clearly, the majority of
the [property owners] was required in order
to achieve [p]laintiff's preferred result.

Judge Curio also noted that plaintiff was "not an

unsophisticated participant in all of this[,]" and if "he relied

on [a] purported field change, he did so at his own risk. . . .

[T]here is no authority for a field change of this nature, even

if, in fact, there was one made and that the condition imposed

[could not] be changed in the fashion urged by [p]laintiff." The

judge entered an order on June 22, 2016, denying plaintiff's

motion, granting defendants' motion, confirming the settlement,

and dismissing the complaint with prejudice. Plaintiff

subsequently moved for reconsideration, which the judge denied.

7 A-5236-15T1
Plaintiff then filed a notice of appeal from the June 22, 2016

order.

On appeal, plaintiff contends Judge Curio erred in her

interpretation of the term "majority." Plaintiff argues the judge

should have interpreted the term "majority" in accordance with the

definition of "majority vote" in Robert's Rules of Order, which

states that "[o]nly a majority of those actually voting is

required." Plaintiff posits that the Board's letter to the

property owners did not refer to a majority of the "entire

membership" of property owners, and again relies on the quorum

argument it raised before the judge.3

3
We decline to address plaintiff's alternative argument that the
judge should have voided the settlement because there was no
meeting of the minds as to the definition of the term "majority."
Plaintiff did not raise this issue before Judge Curio on its motion
to enforce and it is not jurisdictional in nature and does not
substantially implicate the public interest. Zaman v. Felton, 219
N.J. 199, 226-27 (2014) (citation omitted). Plaintiff improperly
raised this issue for the first time in its motion for
reconsideration. However, a party may not use a motion for
reconsideration as a basis for presenting facts or arguments that
could have been provided in opposition to the original motion.
Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).
Further, plaintiff only designated the June 22, 2016 order in its
notice of appeal, not the order denying its motion for
reconsideration. "[I]t is only the judgments or orders or parts
thereof designated in the notice of appeal which are subject to
the appeal process and review." Pressler and Verniero, Current
N.J. Court Rules, comment 6 on R. 2:5-1(f)(1) (2018). We also
decline to address plaintiff's contention that the Township was
bound by Fralinger's approval of the field change, as the
settlement subsumed this issue. An issue settled by the parties

8 A-5236-15T1
 A settlement of a legal claim between parties is a contract

like any other contract, Nolan v. Lee Ho, 120 N.J. 465, 472 (1990),

which "may be freely entered into and which a court, absent a

demonstration of 'fraud or other compelling circumstances,' should

honor and enforce as it does other contracts." Brundage v. Estate

of Carambio, 195 N.J. 575, 601 (2008) (quoting Pascarella v. Bruck,

190 N.J. Super 118, 124-25 (App. Div.) (citation omitted), certif.

denied, 94 N.J. 600 (1983)). "The interpretation and construction

of a contract is a matter of law for the trial court, subject to

de novo review on appeal." Cumberland Farms, Inc. v. N.J. Dep't

of Envtl. Prot., 447 N.J. Super. 423, 438 (App. Div. 2016). "[We]

give 'no special deference to the trial court's interpretation and

look at the contract with fresh eyes.'" Manahawkin Convalescent

v. O'Neill, 217 N.J. 99, 115 (2014) (quoting Kieffer v. Best Buy,

205 N.J. 213, 223 (2011)).

Courts should read contracts "as a whole in a fair and common

sense manner," and enforce them "based on the intent of the

parties, the express terms of the contract, surrounding

circumstances and the underlying purpose of the contract." Id.

at 118 (quoting Hardy ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95,

103 (2009); Caruso v. Ravenswood Developers, Inc., 337 N.J. Super.

may not be raised on appeal. River Vale v. E. & R Off. Interiors,
241 N.J. Super. 391, 402 (App. Div. 1990).

9 A-5236-15T1
499, 506 (App. Div. 2001)). The language of the contract, by

itself, must determine the agreement's force and effect if it "is

plain and capable of legal construction." Ibid. (quoting Twp. of

White v. Castle Ridge Dev. Corp., 419 N.J. Super. 68, 74-75 (App.

Div. 2011)). However, even in an unambiguous contract, the court

"may consider 'all of the relevant evidence that will assist in

determining [its] intent and meaning.'" Ibid. (alteration in

original) (quoting Conway v. 287 Corporate Ctr. Assocs., 187 N.J.

259, 269 (2006)).

Generally, courts do not supply terms or re-write contracts

to afford parties a better bargain than the one negotiated at the

time of its formation. Barr v. Barr, 418 N.J. Super. 18, 31-32

(App. Div. 2011). "The parties are bound by the contracts they

make for themselves, with the understanding that 'a meeting of the

minds is an essential element to the valid consummation' of any

agreement." Id. at 32 (quoting Center 48 Ltd. P'ship v. May Dept.

Stores Co., 355 N.J. Super. 390, 406 (App. Div. 2002)).

When interpreting and enforcing contracts, courts focus on

the parties' intent, the express contract terms, the surrounding

circumstances at the time of its formation, and the purpose for

which it was entered. Manahawkin Convalescent, supra, 217 N.J.

at 118. The court's purpose is to give the agreement its plain

and rational meaning that aligns with the general purpose of the

10 A-5236-15T1
contract. Conway, supra, 187 N.J. at 269 (citing Atl. N. Airlines,

Inc. v. Schwimmer, 12 N.J. 293, 301-02 (1953)).

Here, the documents in evidence confirm the parties agreed

that a majority of the twenty-one property owners, not a majority

of those who voted, had to consent to the proposed change. Van

Hise's January 22, 2016 letter specifically states that the

condition of approval of the proposed change "require[d] a majority

sign-off of property owners[.]" (Emphasis added). The Board's

letter to the property owners also specified that plaintiff "was

required to submit proof to the Board that a majority of homeowners

within the development consent to this change by obtaining a

countersignature to this letter by each homeowner. (Emphasis

added). As well, Trace's letter to the property owners makes

clear that the Board "agreed to abide by the decision of the

majority of homeowners." The clear language of these documents

expressed the parties' intent that a majority of the property

owners had to consent to the proposed change as a condition of the

Board's approval of plaintiff's application.

Moreover, no document in evidence contains any reference to

the Homeowners Association's By-Laws, the necessity of a quorum,

or that a majority will be defined as only a majority of those who

actually voted. Thus, based on the plain language of the documents

memorializing the settlement agreement, we are satisfied that

11 A-5236-15T1
Judge Curio correctly interpreted the term "majority" to mean a

majority of the twenty-one property owners, not the majority of

those who actually voted.

Affirmed.

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