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. 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2697-16T4

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. 
3 A-2697-16T4

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 multiphase project. The project involved the construction of agerestricted 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 
4 A-2697-16T4

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.
6 A-2697-16T4

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 thirdparty 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 
7 A-2697-16T4

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.
8 A-2697-16T4

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 
9 A-2697-16T4

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 
10 A-2697-16T4

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 
11 A-2697-16T4

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.