Beazer East, Inc. v. Morris Kearny Associates Urban Renewal, LLC ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-0756-22
BEAZER EAST, INC.,
Plaintiff-Respondent,
v.
MORRIS KEARNY ASSOCIATES
URBAN RENEWAL, LLC,
Defendant-Appellant.
_______________________________
Argued January 10, 2024 – Decided November 14, 2024
Before Judges Vernoia, Gummer and Walcott-
Henderson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Hudson County, Docket No. C-
000056-22.
Michael D. Lichtenstein argued the cause for appellant
(Lowenstein Sandler, LLP, attorneys; Michael D.
Lichtenstein and Allison K. Gabala, on the briefs).
Danielle N. Bagwell argued the cause for respondent
(Manko, Gold, Katcher & Fox, LLP, attorneys; John F.
Gullace and Danielle N. Bagwell, on the briefs).
The opinion of the court was delivered by
VERNOIA, J.A.D.
This matter involves a dispute over access to a Kearny, New Jersey site at
which plaintiff, Beazer East, Inc. (Beazer), is legally required to remediate
contaminated groundwater pursuant to the New Jersey Spill Compensation and
Control Act, N.J.S.A. 58:10-23.1 to -23.24, and the Hazardous Discharge Site
Remediation Act, N.J.S.A. 58:10B-1 to -31. Defendant Morris Kearny
Associates Urban Renewal, LLC appeals from an order denying its motion for
reconsideration of an order granting plaintiff access under the New Jersey
Access Statute (the Access Statute), N.J.S.A. 58:10B-16, to a portion of the site
now owned by defendant for the purpose of allowing plaintiff to install two
groundwater-monitoring wells on defendant's property. Based on our review of
the record, the parties' arguments, and the applicable legal principles, we reverse
the order denying defendant's reconsideration motion, vacate the order granting
plaintiff access to the site, and remand for further proceedings.
I.
In furtherance of its remediation obligations, at the direction of its
Licensed Site Remediation Professional (LSRP), and in accordance with the
Access Statute, plaintiff sought access to a portion of the remediation site owned
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by defendant for the purpose of installing two groundwater-monitoring wells.
Defendant denied plaintiff's request, claiming plaintiff's installation of the wells
would interfere with defendant's contractual obligation to construct site
improvements and warehouses on its property in furtherance of a commercial
redevelopment project. Defendant advised plaintiff that to obtain the requested
access plaintiff must either await defendant's completion of its construction-
related work or indemnify defendant for all costs associated with any damage to
the wells caused by defendant's construction at the site, including damage to the
wells caused by defendant intentionally or recklessly.
After unsuccessful negotiations for a mutually-acceptable agreement
allowing it access to the site, plaintiff filed a summary action seeking access to
defendant's property under the Access Statute. The statute generally enables a
party undertaking remediation to obtain a court order permitting "reasonable
access" to a property if "after good faith efforts, the person undertaking the
remediation and the property owner fail to reach an agreement concerning
access[.]" N.J.S.A. 58:10B-16(a)(1). A court may grant access if it finds that
"access to the property is reasonable and necessary to remediate contamination."
N.J.S.A. 58:10B-16(b)(2). Plaintiff had requested access to the site to install
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the wells based on its LSRP's determination that the wells were required to
monitor groundwater as part of plaintiff's remediation obligations.
Following argument on plaintiff's order to show cause requesting access
to the property, the court found defendant's redevelopment activities and
plaintiff's remediation activities "can and should" be performed concurrently on
the site without interference by either party to the actions of the other at the
property. The court further determined the "blanket indemnification" defendant
had requested as a condition of its consent to the access "would be void or
voidable" and "[a]bsent an enforceable agreement, the parties [were] left to
adhere to their mutual duties of care for the property and operations of one
another." The court entered a July 22, 2022 order allowing plaintiff access to
defendant's property to install the monitoring wells.
Defendant filed a motion for reconsideration of the access order. In part,
defendant argued it was entitled to reconsideration because the circumstances
had changed following the order's entry. More particularly, defendant argued it
had been issued a zoning certificate authorizing its commencement of site
improvements at the property and, as a result, it could provide a timeframe for
its construction of the site improvements and thereby permit a delay in the
installation of the wells until defendant's site improvements were completed.
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The court rejected defendant's claim that plaintiff's installation of the
monitoring wells at the same time defendant constructed the site improvements
would be "technically impossible," finding plaintiff's LSRP had concluded
otherwise. The court explained that it was "put off" by defendant's claims that
allowing plaintiff's installation of the wells and defendant's construction on the
site at the same time could not be done without "the high likelihood of causing
damage or destruction to the groundwater wells" and that "removing so much
earth and other material" during construction of the site improvements was
"likely to disrupt the structural integrity of the well[s] causing irreparable
damage." The court stated that if defendant was "prophylactically worried about
the high likelihood of damaging the wells, then" it should not "do it." The court
also explained it was not "willing to" delay plaintiff's installation of the wells
while plaintiff awaited defendant's "site activities to be complete[d]."
The court entered a September 23, 2022 order denying defendant's
reconsideration motion. We subsequently denied defendant's emergent motion
for a stay of the access order. Defendant appealed from the September 23, 2022
order denying its reconsideration motion but did not appeal from the July 22,
2022 access order.
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In its merits brief on appeal, defendant raised an issue that had not been
presented to the court in support of its reconsideration motion. Defendant
argued the LSRP lacked the authority under the Site Remediation Reform Act,
N.J.S.A. 58:10C-1 to -29, to require plaintiff's installation of the wells, claiming
the LSRP could not require installation of wells without the prior approval of
the New Jersey Department of Environmental Protection (NJDEP) because
remediation of the site was under the NJDEP's direct supervision. Defendant
further argued the LSRP had never obtained the requisite NJDEP approval and,
therefore, the court's access order had been entered in error.
Subsequent to the filing of the parties' merits briefs and defendant's reply
brief, defendant moved to supplement the record with a January 31, 2023 letter
from the NJDEP directing in part that defendant install the monitoring wells on
defendant's property. In support of the motion, defendant argued the letter
established the LSRP did not have the authority to require the installation of the
monitoring wells and, as a result, the court's access order, which was based on
the LSRP's directive that the wells be installed, was entered in error.
Plaintiff opposed defendant's motion to supplement the record, arguing
defendant had been aware of the information in the NJDEP letter while the
matter was pending in the trial court, the letter did not permit or require a change
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in the trial court's access order, the letter should not be considered because
defendant had not challenged the LSRP's authority in its reconsideration motion,
and the letter constituted irrelevant evidence. We granted defendant's motion to
supplement the record with the NJDEP's January 31, 2023 letter, explaining that
its relevancy would be determined by the merits panel in its consideration of the
issues presented on appeal.
Plaintiff then moved to supplement the record with: a March 3, 2023
letter, including attachments, it had sent to the NJDEP detailing the scope of
work it intended to perform at defendant's property to install the two monitoring
wells pursuant to the NJDEP's directive; and a December 7, 2023 email from a
deputy attorney general confirming that on August 18, 2023, the NJDEP had
approved plaintiff's installation of the monitoring wells on defendant's property
and authorized plaintiff to proceed with the "approved scope of work."
Plaintiff also requested that we dismiss defendant's appeal as moot,
claiming the NJDEP had ordered the installation of the wells and, therefore, the
court's reliance on the LSRP's requirement that the wells be installed as the basis
for the access order, even if in error, was of no consequence. Stated, differently,
plaintiff argued the case should be dismissed as moot because the NJDEP had
separately directed the installation of the wells and therefore access to
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defendant's property pursuant to the access order—about which the court had
denied defendant's reconsideration motion—was no longer an issue in dispute.
Defendant did not oppose plaintiff's motion to supplement the record.
Rather it consented to the requested relief, arguing plaintiff's March 3, 2023
letter to the NJDEP confirmed that plaintiff's LSRP had lacked the authority to
direct the installation of the wells and that plaintiff had misrepresented to the
court the LSRP's authority when it requested the access order in the first
instance. Defendant further argued that, for those reasons, the issues presented
on appeal were not moot because the court had erred in granting an access order
that continued in full force and effect.
Defendant also filed a cross-motion to supplement the record with
additional correspondence and documents post-dating the court's orders granting
access and denying defendant's reconsideration motion. Defendant argued the
correspondence and documents further established the remediation of the site
had been under the NJDEP's direct supervision since 2014 and, as a result,
plaintiff's LSRP had lacked the authority to direct the installation of the
monitoring wells such that the court had erred by granting the access order and
denying defendant's reconsideration motion. Plaintiff did not oppose
defendant's cross-motion to supplement the record.
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We granted the parties' motions to supplement the record. We denied
plaintiff's motion to dismiss the appeal as moot.
In support of its appeal from the court's order denying the reconsideration
motion, defendant offers the following arguments:
POINT I
THE CHANCERY COURT INCORRECTLY
DETERMINED THAT [PLAINTIFF'S] LSRP HAD
AUTHORITY TO REQUIRE [PLAINTIFF] TO
INSTALL THE PROPOSED WELLS.
POINT II
THE CHANCERY COURT'S FINDING THAT IT IS
POSSIBLE FOR [DEFENDANT] TO CONDUCT ITS
REQUIRED SITE IMPROVEMENT ACTIVITIES
CONCURRENT WITH [PLAINTIFF'S]
INSTALLATION OF THE TWO PROPOSED DEEP
GROUNDWATER MONITORING WELLS IS
UNSUPPORTED BY CREDIBLE EVIDENCE.
POINT III
THE CHANCERY COURT ABUSED ITS
DISCRETION IN DENYING [DEFENDANT'S]
MOTION FOR RECONSIDERATION AND
GRANTING THE ORDERS DIRECTING
[DEFENDANT] TO PERMIT [PLAINTIFF] TO
INSTALL TWO DEEP GROUNDWATER
MONITORING WELLS AT THE SITE.
A. The Chancery Court Abused Its Discretion By
Making Factual Findings That Are Not
Supported by Clear and Convincing Evidence
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and By Arbitrarily Ignoring Evidence In The
Record.
B. The Chancery Court Erred by Failing to
Provide The Parties With the Guidance
Necessary to Carry Out Its Order.
C. By Foisting Unnecessary Burdens on
Defendant and Failing to Exercise Its Equitable
Jurisdiction, The Chancery Court Has Issued A
Fatally Flawed Order.
II.
Defendant's appeal is limited to its challenge to the court's September 23,
2022 order denying its reconsideration motion. It did not appeal from the July
22, 2022 order granting access to defendant's property. It is well established
that "it is only the orders designated in the notice of appeal that are subject to
the appeal process and review." W.H. Indust., Inc. v. Fundicao Balancins, Ltda,
397 N.J. Super. 455, 458 (App. Div. 2008). Where, as here, an appellant does
not designate an order in its notice of appeal as one from which an appeal is
taken, that order "and the issues related thereto, are not properly before this court
on appeal" and will not be considered. Peterson v. Meggitt, 407 N.J. Super. 63,
68 n.2 (App. Div. 2009); see also Pressler & Verniero, Current N.J. Court Rules,
cmt. 5.1 on R. 2:5-1(f) (2025) ("Courts have concluded that only the judgments,
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orders or parts thereof designated in the notice of appeal are subject to the
appellate process and review.").
"[W]e review a trial court's decision on a motion for reconsideration under
an abuse of discretion standard." In re Est. of Jones, 477 N.J. Super. 203, 216
(App. Div. 2023). A court abuses its discretion when its "'decision [is] made
without a rational explanation, inexplicably depart[s] from established policies,
or rest[s] on an impermissible basis.'" United States v. Scurry, 193 N.J. 492,
504 (2008) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
"A trial court's interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special deference." Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "[A] trial
court's legal conclusions are reviewed de novo." State v. Erazo, 254 N.J. 277,
297 (2023).
A motion for reconsideration is appropriate in "those cases which fall into
that narrow corridor in which either 1) the [c]ourt has expressed its decision
based upon a palpably incorrect or irrational basis, or 2) it is obvious that the
[c]ourt either did not consider, or failed to appreciate the significance of
probative, competent evidence . . . ." Triffin v. SHS Grp., LLC, 466 N.J. Super.
460, 466 (App. Div. 2021) (alterations in original) (quoting Cummings v. Bahr,
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295 N.J. Super. 374, 384 (App. Div. 1996)). Additionally, where "a litigant
wishes to bring new or additional information to the [c]ourt's attention which it
could not have provided on the first application, the [c]ourt should, in the
interest of justice (and in the exercise of sound discretion), consider the new
evidence." (quoting Cummings, 295 N.J. Super. at 384).
In its challenge to the order denying its reconsideration motion, defendant
argues the court first erred by finding plaintiff's LSRP had the authority to
require that plaintiff install the monitoring wells as part of plaintiff's remediation
obligations and then compounded its error by relying on the LSRP's imposition
of the requirement as the basis for its finding the requested access was
"reasonable and necessary" under the Access Statute. Defendant did not make
that argument to the trial court in support of the reconsideration motion, and
plaintiff argues we therefore should not address the argument on appeal.
"Appellate review is not limitless. The jurisdiction of appellate courts
rightly is bounded by the proofs and objections critically explored on the record
before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1,
19 (2009). We generally do not consider arguments presented for the first time
on appeal unless they "go to the jurisdiction of the trial court or concern matters
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of great public interest." Id. at 20 (quoting Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973)). We find no such circumstances here.
Defendant contends we should excuse its failure to make the argument in
support of its reconsideration motion that the LSRP lacked the authority to
require the installation of the monitoring wells because the remediation site was
under the NJDEP's direct supervision. Defendant claims its argument the LSRP
lacked the requisite authority is based on correspondence and other documents—
which are included in the record on appeal as supplemented pursuant to the
parties' motions—that constitute new evidence because they post-date the court's
orders granting access and denying defendant's reconsideration motion.
Plaintiff cites to conflicting evidence in the record as support for its claim
the remediation site was not under the NJDEP's direct supervision when the
LSRP required that plaintiff install the monitoring wells and that defendant's
claims to the contrary are therefore not supported by the evidence. Plaintiff
further argues that defendant was aware of the NJDEP's limited role—which
plaintiff contends did not include direct supervision over the site—when it made
its motions for access and for reconsideration and that defendant had waived the
argument the LSRP lacked the authority to require installation of the wells by
failing to make the argument in support of its reconsideration argument.
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We need not enter the fray over the LSRP's authority to require installation
of the wells because the record presented, even as supplemented, is insufficient
to permit a proper resolution of the competing factual contentions; each party
points to conflicting evidence concerning the nature to the NJDEP's
involvement—and whether it included direct supervision—over the remediation
at the site when the LSRP had directed installation of the wells.
Moreover, defendant's claim the order denying the reconsideration motion
should be vacated based on newly-discovered evidence should have been
asserted in a motion for relief under Rule 4:50-1, but defendant never moved
before this court for a temporary remand to the trial court for the filing and
disposition of a motion for relief under that Rule. See Hodgson v. Applegate,
31 N.J. 29, 42 (1959) (explaining the "correct course" for seeking relief from a
judgment based on newly discovered evidence following the filing on an appeal
is to move before the appellate court for "a partial remand to the trial court for
determination of the motion"). And, based on the record presented, we will not
otherwise exercise original jurisdiction to decide on appeal what is tantamount
to a motion for relief under Rule 4:50-1. See Rivera v. Union Cnty. Prosecutor's
Off., 250 N.J. 124, 146 (2022) (explaining the exercise of original jurisdiction
under Rule 2:10-5 "should be invoked 'sparingly,' and is generally used when
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the record is adequately developed and no further fact-finding is needed"
(citations omitted)).
Nonetheless, we have determined the court abused its discretion by
denying defendant's reconsideration motion because, as defendant had correctly
argued in support of the motion, the court had erred in its issuance of the access
order by deciding a material factual dispute without conducting an evidentiary
hearing. More particularly, the court's access order was based in part on the
court's finding that "[t]o the extent practicable, the extent of the wells can and
should occur alongside the continued development of the site and without
interference with same." That determination, however, was based on findings
of fact and a credibility determination made by the court based on its review of
conflicting affidavits.
In support of its motion for reconsideration, defendant argued that in
making the determination plaintiff's installation of the monitoring wells and
defendant's construction at the site could take place simultaneously, and
granting plaintiff access on that basis, the court had erred by ignoring that the
evidence presented established there was a factual dispute over whether plaintiff
could properly install the monitoring wells at the same time defendant
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constructed the site improvements and by deciding the issue without an
evidentiary hearing.
In support of its order to show cause seeking the access order, plaintiff
had submitted an affidavit from its LSRP explaining that defendant could engage
in its redevelopment of the property without damaging the wells by exercising
customary care. The LSRP noted he had "experience at multiple construction
and redevelopment sites undergoing simultaneous remediation" and stated the
wells he had required that plaintiff install "should not be at material risk of
damage during [defendant's] construction."
In opposition to the order to show cause, defendant submitted a conflicting
affidavit from the vice president of a "consulting, engineering, and construction
management firm," stating the wells could not be installed prior to defendant's
construction at the redevelopment site because necessary "massive earth-
moving" activities would render it impossible to protect the wells from damage.
For example, the vice-president explained that excavation on defendant's
property would create "craters that extend [ten] to [twenty] feet below current
grade" and reduce "surface elevation by several feet, perhaps more than [ten]
vertical feet" such that the monitoring wells would be damaged, undermined,
buried, compromised, or destroyed. The affidavit also described other
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construction- and excavation-related actions that defendant would undertake on
its property that would damage the monitoring wells.
Defendant argued in support of the reconsideration motion that the court
had erroneously disregarded the vice-president's affidavit in making its
determination plaintiff's installation of the wells could occur simultaneous with
defendant's construction and excavation on the property. Addressing that
argument, the court stated it had not disregarded the affidavits and that it had
relied "more strongly on the opinion of the LSRP that in his experience the[]
activities can co-exist and that it can at this site." Stated differently, the court
accepted the LSRP's version of the facts and opinion and rejected the opinion
and facts offered in the affidavit submitted by defendant in support of its
opposition to plaintiff's access request.
It is well-established that "[a] court, when presented with conflicting
factual averments material to issues before it, ordinarily may not resolve those
issues without a plenary hearing." J.G. v. J.H., 457 N.J. Super. 365, 372 (App.
Div. 2019) (quoting K.A.F. v. D.L.M., 437 N.J. Super. 123, 137 (App. Div.
2014)). Similarly, "a court may not make credibility determinations or resolve
genuine factual issues based on conflicting affidavits." Ibid. (quoting K.A.F.,
437 N.J. Super. at 137-38).
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The motion court erred by granting the access order based on a finding
that defendant's construction and excavation at the site could occur at the same
time as the installation of the wells. The competing affidavits presented
conflicting facts and opinions concerning the feasibility of such an arrangement
and the court opted to accept plaintiff's LSRP's opinion and version of the facts
over those offered in the affidavit submitted by defendant in opposition to
plaintiff's access request. When defendant argued in support of its
reconsideration motion that the court had erred by ignoring the facts and opinion
in its witness's affidavit, the court rejected the argument but effectively
confirmed its error—explaining it had accepted and relied on the LSRP's facts
and opinion as a basis the access order.
The court therefore abused its discretion in denying defendant's
reconsideration motion because defendant had demonstrated the court granted
access on a "palpably incorrect or irrational basis," Triffin, 466 N.J. Super. at
466, (quoting Cummings, 295 N.J. Super. at 384) by making a credibility
determination and findings of fact based on conflicting affidavits and without a
plenary hearing, see J.G., 457 N.J. Super. at 372. We therefore reverse the
court's September 23, 2022 order denying defendant's reconsideration motion,
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vacate the court's July 22, 2022 access order, and remand for a plenary hearing
on plaintiff's access request.
We recognize the circumstances may have changed since the entry of the
July 22, 2022 access order, and we offer no opinion as to whether such an order
is required at present based on what the parties have represented is the NJDEP's
directive requiring access. Nor do we offer any opinion on the merits of the
plaintiff's access request, defendant's defenses to the request, or any other issues
related to the merits of the request as set forth in plaintiff's complaint.
The court shall conduct such proceedings as it deems appropriate to
consider and decide the claims made in plaintiff's complaint seeking access and
defendant's defenses to the complaint based on the record presented by the
parties on remand. The remand court shall allow such amendments to the
pleadings as may be appropriate based on any changed circumstances or as
otherwise permitted under the rules, and it shall permit the parties to engage in
discovery as appropriate and necessary to resolve the claims and defenses
asserted.
Because we have vacated the July 22, 2013 access order and remand for
consideration anew of plaintiff's request for access as alleged in the complaint
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based on the record presented to the remand court, we find it unnecessary to
address the parties' remaining arguments presented on appeal.
Reversed in part, vacated in part, and remanded for further proceedings in
accordance with this opinion. We do not retain jurisdiction.
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