ROBERT MOSS VS. BOROUGH OF FRANKLIN (L-0418-19, SUSSEX 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NOT FOR PUBLICATION WITHOUT THE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-1812-19
ROBERT MOSS,
Plaintiff-Appellant,
v.
BOROUGH OF FRANKLIN,
BOROUGH OF FRANKLIN
PLANNING BOARD, SILK CITY
DEVELOPMENT, LLC, SILK
CITY RENTALS, LLC and
JCM INVESTORS 1012, LLC,
Defendants-Respondents.
______________________________
Argued January 19, 2021 – Decided February 24, 2021
Before Judges Rothstadt and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Sussex County, Docket No. L-0418-19.
Robert Moss, appellant, argued the cause pro se.
Tara Ann St. Angelo argued the cause for respondents
Borough of Franklin and Borough of Franklin Planning
Board (Gebhardt & Kiefer, PC, attorneys; Tara Ann St.
Angelo, on the brief).
Susan R. Rubright argued the cause for respondents
Silk City Development, LLC, Silk City Rentals, LLC
and JCM Investors 1012, LLC (Brach Eichler, LLC,
attorneys; Frances B. Stella and Lindsay P. Cambron,
of counsel and on the brief).
PER CURIAM
Plaintiff Robert Moss filed this action in lieu of prerogative writs to
challenge a settlement reached between defendants the Borough of Franklin and
its Planning Board (Board), defendants Silk City Development, LLC, Silk City
Rentals, LLC (collectively Silk City Rentals) and JCM Investors 1012, LLC
(JCM) as to the development of a residential real estate project within the
Borough. Among his contentions, plaintiff alleged the Borough engaged in
impermissible spot zoning and the Board's meeting to consider the plans
submitted under the settlement agreement violated the requirements of
Whispering Woods at Bamm Hollow, Inc. v. Middletown Township Planning
Board, 220 N.J. Super. 161 (Law Div. 1987). Judge Stuart A. Minkowitz,
dismissed plaintiff's complaint under Rule 4:6-2, setting forth his reasons in a
comprehensive written decision, which included the judge's findings that
plaintiff's spot zoning claim was time barred and that his Whispering Woods
claim was without merit.
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Plaintiff appeals from that determination, challenging Judge Minkowitz's
decision to dismiss the fourth count of his second amended complaint, which
alleged a Whispering Woods violation, and the ninth count which alleged illegal
spot zoning.1 We affirm substantially for the reasons expressed by Judge
Minkowitz in his sixteen-page December 24, 2019 written decision.
We discern the following facts from plaintiff's second amended complaint.
The parties' dispute relates to a parcel of property that had been designated as
Lot 17.01 in Block 66. In 2017, Silk City Rentals acquired the property. Its
related company, JCM, was to be responsible for the property's proposed
development.
Prior to Silk City Rentals' acquisition, in 1987, the Board approved a prior
owner of the property's plan to construct 350 condominium and townhouse units
on the land. The property was later sold in 2003. The approved project was not
constructed because in 2004 the Borough rezoned the area for single family
homes only. And, in 2005, the Board's attorney advised the owner that the
approvals had expired. Those events resulted in the property owner filing an
action against the Borough.
1
At oral argument before us, plaintiff confirmed that although his second
amended complaint and appellate brief addressed other issues, his appeal was
limited to the dismissal of the two counts only.
A-1812-19
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That action settled in 2007 when the parties entered into a consent order
that permitted the owner to develop 250 age-restricted housing units on the
property, twenty percent of which were to be set aside for affordable housing,
(2007 Consent Order). In order to facilitate that development, the Borough
amended its zoning ordinances in 2007 to create the Mixed Active Adult
Housing (MAAH) District, which allowed for the proposed construction.
Despite that action, the project remained unbuilt.
In 2017, after Silk City Rentals acquired the property, JCM pursued
approvals from the Board for variances relieving JCM from the density and age
restrictions applicable to the MAAH District. The Board denied this application
on September 18, 2017.
On October 13, 2017, Silk City Rentals entered into a consent order (2017
Consent Order) with the Borough modifying the 2007 Consent Order by
amending it to authorize construction of 300 market-rate units and removing all
age restriction requirements "except as pertains to the . . . affordable housing
obligations." In order to implement the 2017 Consent Order, on November 28,
2017, the Borough adopted Ordinance #20-2017 which renamed the MAAH
District as the Munsonhurst Planned Residential (MPR) District, removed the
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age restrictions imposed by the prior zoning ordinance, and permitted
development of 300 units.
On April 30, 2018, JCM submitted a site plan application to the Board,
which proposed 300 units of multi-family housing, twenty percent of which
would be reserved for affordable housing. The Board denied the application on
September 17, 2018.
Thereafter, in November 2018, JCM filed a complaint challenging the
Board's denial of its application. That action was resolved through the parties'
entry into a September 3, 2019 settlement agreement. The agreement provided,
in part, that JCM would submit a revised site plan application to the Board for
approval, and the Board "shall adopt a resolution consistent with th[e
a]greement." Specifically, the agreement stated the following: 2
[I]t is the intention of the Parties that after execution of
this Agreement, Plaintiffs shall apply to the Planning
Board via a Whispering Woods hearing for approval of
this Settlement Agreement, site plan approval and
variances from the steep slope disturbance
restrictions . . . .
The council also agreed not to pass "any new zoning ordinances that
related to the [p]roperty that [were] inconsistent with th[e] [a]greement or would
2
Plaintiff did not include a copy of the agreement in his appendix. We quote
the trial judge's reading of the agreement.
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interfere with the development of the [p]roperty in accordance with the Concept
Plan and Site Plan." The agreement provided that approval of the proposed
development was subject to consideration at a public hearing in conformance
with Whispering Woods.
On January 4, 2019, the Borough posted public notice of the meeting "in
Borough Hall" and published its notice in local newspapers advising that a
meeting would be held on August 20, 2019, to consider approval of the
settlement agreement. The notice included the meeting agenda for the council's
regular meeting on August 20, 2019, which listed the settlement agreement as
an agenda item under "Discussion of JCM Litigation Settlement." At the public
meeting, the settlement agreement was discussed prior to the council voting to
authorize execution of the agreement. The terms of the settlement agreement
"were released to the public on September 23, 2019."
Plaintiff, a self-described "open space advocate," who did not reside or
work in the Borough, filed his verified complaint in lieu of prerogative writs on
September 4, 2019. 3 Two days later, JCM submitted a revised site plan
application to the Board, as required by the agreement. The application was the
3
Despite the requirements of Rule 2:6-1, plaintiff's appendix does not contain
a copy of the original complaint or any other pleadings except for his second
amended complaint and defendants' notice of motion to dismiss.
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subject of public hearings held by the Board on October 21, 2019, and November
18, 2019. Prior to the October meeting, plaintiff filed his first amended
complaint.
At the October 21, 2019 meeting, there was a discussion about the Board's
ability to reject the site plan submitted pursuant to the settlement agreement. In
that discussion, the Board's attorney explained that although the council
approved the settlement agreement, the Board was not obligated to approve the
site plan and that the development contemplated by the settlement agreement
was ultimately subject to the Board's approval. In response to an objector's
attorney's inquiry if the meeting was a "pointless exercise," the Board's attorney
stated the following:
Well, it's not a pointless exercise, otherwise we'd be
done way before 10:35 at night, and it looks like we’re
not gonna finish tonight. We're vetting and questioning
the changes in the plan, which is what the Whispering
Woods concept is about: letting the public, including
yourself on behalf of your clients, to have an
opportunity, and letting the board question the details
of the new plan, as opposed to questioning the . . .
entirety of the concept back to whether it should be one
single-family house or not.
On October 30, 2019, plaintiff filed a second amended complaint that
contained nine counts. In count four, he alleged the "Planning Board illegally
agreed to approve an application other than by a vote at a public, properly
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noticed meeting," in contravention of Whispering Woods. Under that count,
plaintiff sought an injunction against the Board "hearing JCM's application and
voiding any acts by the Planning Board done under color of the 2019
Settlement." In count nine, he asserted that the creation of the MAAH District
in 2007 and the MPR District in 2017 constituted illegal spot zoning.
On November 18, 2019, the Board completed its hearing on JCM's new
application. At the meeting's conclusion, all but one member voted to approve
the application. A confirming resolution was adopted at the Board's regular
meeting the following month.
In the meantime, defendants responded to the second amended complaint
by filing motions to dismiss under Rule 4:6-2. Plaintiff filed opposition to the
motions and defendants replied. On December 6, 2019, Judge Minkowitz heard
oral argument and on December 24, 2019, he issued his order granting
defendants' motions and dismissing plaintiff's complaint with prejudice.
In response to plaintiff's argument that the Borough's approval of the
settlement agreement improperly prevented the Borough's council or its
successors from being able to change its zoning ordinance in the future, Judge
Minkowitz stated that plaintiff's claims could not be brought, as they were
outside of the forty-five-day time period for filing challenges as set forth for
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such claims under Rule 4:69-1. Nevertheless, he proceeded to evaluate the
merits of plaintiff's argument, citing to Warner Co. v. Sutton, 274 N.J. Super.
464, 477 (App. Div. 1994) and McCrink v. West Orange, 85 N.J. Super. 86, 91
(App. Div. 1964) for the proposition that municipalities may freely enter into
agreements to settle litigation related to zoning issues. He concluded that, to
the extent plaintiff challenged the MAAH District or the MPR District, plaintiff
had presented "no evidence that . . . the[] zoning changes were enacted in an
unreasonable, arbitrary or capricious manner," which further justified dismissal.
Addressing plaintiff's assertion that the Borough's approval of the
settlement agreement violated Whispering Woods, Judge Minkowitz found that
the approval of the settlement agreement satisfied the procedural requirements
of Whispering Woods, noting that the Borough publicly discussed the agreement
at its regular meeting on August 20, 2019, and that the agreement itself required
JCM to apply to the Board under Whispering Woods for approval of a revised
and resubmitted site plan and certain variances contemplated by the settlement
agreement. He further noted that JCM thereafter submitted a revised site plan
application as directed by the settlement agreement and that JCM's application
was the subject of a duly noticed public hearing in compliance with Whispering
Woods, which began on October 21, 2019. Accordingly, Judge Minkowitz
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found plaintiff's allegations failed to state a claim for a violation of Whispering
Woods and dismissed count four of the second amended complaint.
Finally, Judge Minkowitz addressed plaintiff's allegations that the
Borough engaged in impermissible spot zoning with its creation of the MAAH
District and later the MPR District. There, he found that even though plaintiff's
second amended complaint did not specify the date the MAAH District had been
created, and therefore did not specify when the alleged illegal spot zoning
occurred, it did indicate that the MAAH District had been renamed as the MPR
District on November 28, 2017. Based on this, Judge Minkowitz concluded that
the date the alleged spot zoning occurred was, at a minimum, two years prior to
the initiation of plaintiff's case—well beyond the expiration of the forty-five-
day period provided for bringing claims under Rule 4:69-1. As such, count nine
of the second amended complaint was dismissed along with the other counts of
the second amended complaint. This appeal followed.
On appeal, plaintiff contends Judge Minkowitz's dismissal of his
"challenge to the present zoning" was improper because Judge Minkowitz did
not "cit[e] any material reason or authority; or alternatively, [he] improperly
requir[ed] proof of a factual allegation." He also avers that Judge Minkowitz
incorrectly concluded that the settlement agreement was properly approved at a
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public meeting that complied with Whispering Woods because the judge
"ignored plaintiff's claims and relied on facts asserted by the defense," and
because the judge incorrectly concluded that plaintiff's acknowledgement that a
"certain discussion took place at a Whispering Woods hearing . . . constitute[d]
an admission that it was a valid Whispering Woods hearing." Finally, he argues
that his spot zoning claim was not "out of time." We find no merit to any of
these contentions.
When reviewing orders dismissing a complaint for failure to state a claim,
we consider the matter de novo, applying the same standard as the trial court.
McNellis-Wallace v. Hoffman, 464 N.J. Super. 409, 415 (App. Div. 2020).
Under Rule 4:6-2(e), a complaint can be dismissed if the facts alleged in the
complaint do not state a viable claim as a matter of law. The standard for
determining the adequacy of a plaintiff's pleadings is "whether a cause of action
is 'suggested' by the facts." Green v. Morgan Props., 215 N.J. 431, 451-52
(2013) (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739,
746 (1989)). In its review, a court is also permitted to consider additional
documents when those documents are relied on by or form the basis of plaintiff's
allegations in the complaint. Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183
(2005).
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The review of a pleading and the documents it references "is to be
'undertaken with a generous and hospitable approach,'" McNellis-Wallace, 464
N.J. Super. at 415 (quoting Printing Mart, 116 N.J. at 746), and "every
reasonable inference of fact" should be drawn in plaintiff's favor. Banco, 184
N.J. at 183 (quoting Printing Mart, 116 N.J. at 746). However, where a
complaint "states no basis for relief and discovery would not provide one," the
complaint should be dismissed. McNellis-Wallace, 464 N.J. Super. at 415
(quoting Rezem Fam. Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103,
113 (App. Div. 2011)).
Applying our de novo standard of review, we conclude Judge Minkowitz
correctly dismissed plaintiff's complaint, substantially for the reasons expressed
in the judge's thorough written decision. We add only the following comments.
To the extent that plaintiff's 2019 complaint challenged as illegal spot
zoning any municipal action taken in 2007 or 2017, plaintiff's complaint was
time barred by Rule 4:69-6. The Rule requires, except under certain
circumstances that do not apply here, see R. 4:69-6(c)4; Hopewell Valley
4
Defendants contend that plaintiff did not argue before Judge Minkowitz that
Rule 4:69-6(c) required his time barred claims be considered. Rather, he raises
it for the first time on appeal and under Nieder v. Royal Indemnity Insurance
Co., 62 N.J 229, 234 (1973), we should not consider it. However, none of the
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Citizen's Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569, 578-83
(2011), that "[n]o action in lieu of prerogative writs shall be commenced later
than 45 days after the accrual of the right to the review, hearing or relief
claimed." R. 4:69-6(a).
Similarly, because plaintiff's action against the Board was filed before it
rendered a decision on JCM's application in 2019, plaintiff's claim against the
Board was premature. His entitlement to relief, if any, was contingent upon the
Board approving the plan it was still considering when plaintiff filed. An action
in lieu of prerogative writs accrues upon publication of the Board's decision on
an application. See N.J.S.A. 40:55D-10(i); R. 4:69-6(b)(3). Because plaintiff
filed his complaint before the Board completed its consideration of the
application and published its decision, his challenge was not ripe for a court's
review. See Gross v. Iannuzzi, 459 N.J. Super. 296, 299 n.3 (App. Div. 2019)
parties have supplied us with an appendix that contains any document that
confirms whether the issue was raised. To the contrary, the only evidence in the
record that broaches the topic—a portion of plaintiff's brief supporting his
opposition to dismissal which he provided in a reply appendix—asserts that an
argument on enlargement of time should be "advanced in a full briefing
preceding a decision by the . . . [c]ourt, rather than in a motion to dismiss."
Regardless, we conclude there was no basis to extend the time period for filing
a complaint.
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(finding an issue not ripe where a local planning/zoning board had not issued a
decision).
Regardless of its untimeliness, plaintiff's Whispering Woods challenge
based upon an allegation that the Board was somehow bound to approve the
2019 site plan was unsupported by the limited record we were provided. Rather,
as noted above, it is apparent from the record that the Board considered JCM's
new application in detail, which included accepting input from members of the
public.
Addressing plaintiff's other argument about the Board's October 21, 2019
meeting violating Whispering Woods, it appears he essentially contends that the
meeting did not satisfy Whispering Woods because a comment by the Board's
attorney limited discussions about the number of units that could be built under
the new proposed plan submitted pursuant to the settlement agreement.
Despite relying on that comment, plaintiff failed to provide us with a copy
of the transcript from the meeting. He alleges that when the objector's attorney
asked an expert if a reduced number of buildings could be constructed, the
Board's attorney reminded counsel that "there[ is] a settlement . . . that provides
there be 260 units an acre," so whether fewer units could be built was irrelevant.
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Notwithstanding plaintiff's omission, and contrary to his contention on
appeal, there is nothing in Whispering Woods to suggest that the public must be
given wide latitude at a hearing to renegotiate the terms of an agreement settling
an action in lieu of prerogative writs. Whispering Woods requires that a
settlement agreement be "subject to public presentation, a public hearing thereon
and a public vote." Whispering Woods, 220 N.J. Super. at 172.5 The court ruled
in that case that any settlement must lead to "official action by the public body,"
and must be subject to all statutory conditions "necessary to vindicate the public
interest," including "notice, public hearing, public vote, written resolution, etc."
Ibid.Here, plaintiff made no allegation that inadequate notice was provided for
the October 21, 2019 meeting or that the matter was not subjected to a public
5
Though Whispering Woods, a Law Division case, is not binding authority on
this court, the precepts underlying the decision are persuasive, and its influence
on settlement procedures in land use cases has been widespread. Indeed, we
have cited the opinion with approval on multiple occasions. See Friends of
Peapack-Gladstone v. Borough of Peapack-Gladstone Land Use Bd., 407 N.J.
Super. 404, 424 (App. Div. 2009) (noting that "the process utilized by the Board
here, as in Whispering Woods, fulfilled 'all of the statutory conditions necessary
to vindicate the public interest,' including 'notice, [a] public hearing, [a] public
vote, [and a] written resolution'" (alterations in original) (quoting Whispering
Woods, 220 N.J. Super. at 172)); Gandolfi v. Town of Hammonton, 367 N.J.
Super. 527, 548 (App. Div. 2004) (citing Whispering Woods for the proposition
that in land use settlement cases, the public's interest must be protected).
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hearing. He acknowledges that a meeting took place on October 21, 2019, to
discuss the agreement and present JCM's new plan.6 He only argues, without
any authority, that the Board's attorney's one comment undermined the integrity
of the meeting's conformance with Whispering Woods. His contention is
without merit. Accordingly, Judge Minkowitz appropriately found that the
procedures followed in approving the settlement agreement comported with the
requirements of Whispering Woods and dismissed plaintiff's claim.
Turning to plaintiff's contention Judge Minkowitz misapplied the standard
for deciding motions under Rule 4:6-2 by considering the language of the
settlement agreement rather than limiting his considerations to the portions
plaintiff quoted in his complaint, we conclude the argument is equally without
merit. In determining whether dismissal under the Rule is appropriate, courts
can consider a document referred to and relied on by a party in making the
complaint, or documents that are in the public record. See Teamsters Loc. 97 v.
State, 434 N.J. Super. 393, 413-14 (App. Div. 2014).
Also, to the extent plaintiff argues that Judge Minkowitz misread or
misquoted the 2019 settlement agreement, because plaintiff has failed to provide
6
The minutes of the Board's regular meeting on November 18, 2019, also refer
to the fact that the matter was presented and subjected to public discussion
before a resolution was adopted on December 16, 2019.
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us with a copy of the agreement, we are unable to review his claim. See State
v. Robertson, 438 N.J. Super. 47, 57 n.4 (App. Div. 2014) (citing to language
now found in R. 2:6-1(a)(1)(I) and stating: "We obviously cannot address
documents not included in the record"); Gross v. Borough of Neptune City, 378
N.J. Super. 155, 159 (App. Div. 2005) (affirming the trial court's decision where
the challenging party failed to include the evidence relied on by the trial court
in the record, thereby providing "no basis for disagreeing with the judge's
determination").
To the extent we have not addressed any of plaintiff's remaining
arguments, we conclude they are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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