SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-0989-22 

TG ACQUISITIONS, LLC, 

 Plaintiff-Appellant, 

v.

BOROUGH OF FREEHOLD and 

MAYOR AND COUNCIL OF 

THE BOROUGH OF FREEHOLD, 

 Defendants-Respondents. 

 

Argued February 26, 2024 – Decided July 2, 2024 

Before Judges Marczyk and Chase. 

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Docket No. L-0684-22.

Donna M. Jennings argued the cause for appellant 

(Wilentz, Goldmanfaif and Spitzer PA, attorneys; 

Donna M. Jennings, of counsel and on the briefs). 

Matthew R. Goode argued the cause for respondents 

(Arbus, Maybruch & Goode, attorneys; Matthew R.

Goode, on the brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE 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-0989-22

 Plaintiff TG Acquisitions, LLC, appeals from the trial court's October 20, 

2022 order granting defendant Borough of Freehold summary judgment. Based 

on our review of the record and the applicable legal principles, we affirm. 

I.

 Plaintiff is a real estate developer with experience in developing mixeduse properties with affordable housing. It purchased property in Freehold 

identified as Block 110, Lots 8 and 8.01 ("500 Park Avenue property"). Plaintiff 

filed a builder's remedy lawsuit on March 9, 2022, seeking both a declaration 

that Freehold was in violation of its constitutional obligation to provide realistic 

opportunities for the construction of affordable housing for low- and moderateincome families and a builder's remedy seeking to rezone the 500 Park Avenue 

property to allow for the construction of two multi-family inclusionary 

residential buildings consisting of a total of 147 units, with twenty-two of those 

set aside for low- and moderate-income housing. A week later—on March 16, 

2022—Freehold filed a declaratory judgment action seeking a determination that 

it had complied with its fair share housing obligations under the Mount Laurel 

doctrine1 and the New Jersey Fair Housing Act, N.J.S.A. 52:27D-301 to -329. 

1

 See S. Burlington Cnty. N.A.A.C.P. v. Twp. of Mount Laurel (Mount Laurel 

I), 67 N.J. 151, 174 (1975) (holding developing municipalities are under a 
3 A-0989-22

 By way of background, plaintiff notes its affiliate companies, CT95-CT07 

200 Park LLC and DT95-DT07 200 Park LLC ("CT95/DT95"), had previously 

filed a builder's remedy on October 10, 2019, against Freehold in a separate 

action. The builder's remedy action was filed following what plaintiff 

characterizes as failed negotiations between the parties to develop low- and 

moderate-income residential housing at the 200 Park Avenue property in 

Freehold. Ultimately, a settlement was reached between the parties in February 

2022, but plaintiff alleges Freehold "dragged its feet" in coming to that 

agreement. 

 Plaintiff also references a "related" matter involving the Borough of 

Matawan in which another affiliate of plaintiff ("160 Main"), which was also 

represented by plaintiff's law firm, sought to negotiate construction of a mixeduse development with an affordable housing component. Matawan was 

represented by Freehold's former law firm—the Rainone firm. Plaintiff alleges 

the Rainone firm "blindside[d]" plaintiff in the Matawan case by filing a 

declaratory judgment action to cut off plaintiff's relief through a builder's 

constitutional obligation to provide a realistic opportunity for the creation of 

affordable housing) and S. Burlington Cnty. N.A.A.C.P. v. Mount Laurel Twp. 

(Mount Laurel II), 92 N.J. 158 (1983) (clarifying and reaffirming that 

constitutional requirement). 
4 A-0989-22

remedy suit after engaging in months of negotiations. Plaintiff contends the 

history of "bad faith in prior dealings with the Rainone Firm" justified plaintiff 

in seeking a builder's remedy in the present matter. 

In the present action, in September 2022, Freehold moved for summary 

judgment. It argued plaintiff failed to obtain relief through negotiations with 

Freehold before filing its builder's remedy action. Moreover, Freehold 

contended plaintiff was not entitled to a builder's remedy because the 

declaratory judgment action would ensure review of Freehold's compliance with 

its Mount Laurel obligations. Freehold further argued plaintiff could intervene 

in the declaratory judgment action to obtain relief. 

The trial court, as discussed more fully below, granted summary judgment 

noting a determination on whether Freehold failed to create a realistic 

opportunity for the development of affordable housing would be addressed in 

the declaratory judgment action, and that plaintiff was required to negotiate with 

Freehold regarding its interest in developing the 500 Park Avenue property prior 

to filing its builder's remedy lawsuit. Moreover, plaintiff's interest in developing 

the property could be adequately addressed by the interested party, Fair Share 

Housing Center, in Freehold's declaratory judgment action. 
5 A-0989-22

II. 

 Plaintiff argues the trial court erred in granting summary judgment 

because Freehold's motion was premature. Plaintiff further alleges the court 

erred in failing to find any efforts by plaintiff to negotiate with Freehold because 

negotiations would have been futile based on Freehold's past record. Plaintiff 

further contends the court erred in finding plaintiff should be limited to 

intervening in Freehold's declaratory judgment action. 

 A trial court must grant a summary judgment motion if "the pleadings, 

depositions, answers to interrogatories and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact 

challenged and that the moving party is entitled to a judgment or order as a 

matter of law." R. 4:46-2(c). "An issue of fact is genuine only if, considering 

the burden of persuasion at trial, the evidence submitted by the parties on the 

motion, together with all legitimate inferences therefrom favoring the nonmoving party, would require submission of the issue to the trier of fact." Ibid.; 

see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On 

appeal, we employ the same summary judgment standard. Townsend v. Pierre, 

221 N.J. 36, 59 (2015). If there is no factual dispute, and only a legal issue to 

resolve, the standard of review is de novo, and the trial court rulings "are not 
6 A-0989-22

entitled to any special deference." Manalapan Realty v. Manalapan Twp. 

Comm., 140 N.J. 366, 378 (1995). 

A.

 Plaintiff relies on Oceanport Holding, LLC v. Borough of Oceanport for 

the proposition that the trial court prematurely addressed Freehold's argument 

that plaintiff failed to negotiate in good faith prior to filing its builder's remedy 

action. 396 N.J. Super. 622, 633 (App. Div. 2007). Plaintiff asserts that a 

premature adjudication of plaintiff's entitlement to a builder's remedy would 

undermine the policy of encouraging Mount Laurel actions by developers to 

promote compliance by municipalities with the obligation to provide an 

opportunity for affordable housing. It asserts the summary judgment motion 

should have been denied so the trial court could first adjudicate whether 

Freehold satisfied its constitutional obligations to provide its fair share of 

affordable housing. 

 In Mount Laurel II, our Supreme Court noted: 

Builder's remedies will be afforded to plaintiffs in 

Mount Laurel litigation where appropriate, on a caseby-case basis. Where the plaintiff has acted in good

faith, attempted to obtain relief without litigation, and 

thereafter vindicates the constitutional obligation in 

Mount Laurel-type litigation, ordinarily a builder's 

remedy will be granted, provided that the proposed 

project includes an appropriate portion of low and 
7 A-0989-22

moderate income housing, and provided further that it 

is located and designed in accordance with sound 

zoning and planning concepts, including its 

environmental impact. 

[92 N.J. at 218 (emphasis added).]

 The trial court noted that our courts have upheld the obligation of 

developers to attempt to obtain relief in good faith. See Toll Bros. v. Twp. of 

W. Windsor, 173 N.J. 508, 559-60 (2002); Cranford Dev. Assocs., LLC v. Twp. 

of Cranford, 445 N.J. Super. 220, 226-27 (App. Div. 2016). We held in 

Oceanport, however, that a developer's obligation to seek relief from the zoning 

applicable to its property without litigation is "relevant only to the developer's 

entitlement to a builder's remedy. A developer does not have to make this 

showing in order to have standing to maintain a Mount Laurel action." 396 N.J. 

Super. at 624. Specifically, we noted: 

[I]f a trial court determined that a plaintiff-developer 

was not entitled to a builder's remedy before 

adjudicating the constitutionality of the municipality's 

zoning, the developer would be likely to dismiss the 

action because it no longer would have a sufficient

financial incentive to pursue its claim. Therefore, a 

premature adjudication of a plaintiff-developer's 

entitlement to a builder's remedy would undermine the 

Court's policy of encouraging Mount Laurel actions by 

developers to promote compliance by municipalities 

with the obligation to provide their fair share of 

affordable housing. 
8 A-0989-22

[Id. at 633.] 

 The trial court here distinguished Oceanport, noting the plaintiff there had 

submitted a concept for the development of the property that included affordable 

housing and engaged in discussions with Oceanport regarding the plan. The 

developer filed a builder's remedy lawsuit, and Oceanport sought to dismiss the 

complaint, alleging the plaintiff failed to negotiate in good faith. The trial court 

in Oceanport dismissed the plaintiff's action. Id. at 626-27. We reversed, 

noting:

In dismissing plaintiff's complaint on the ground 

it had failed to negotiate in good faith to obtain relief 

from the zoning applicable to its property without 

litigation, the trial court effectively converted this 

precondition for entitlement to a builder's remedy into 

a precondition for maintenance of a Mount Laurel 

action. However, the right to maintain an action is a 

standing not a remedies issue, see Anderson v. Sills, 56 

N.J. 210, 220-21 (1970), and the New Jersey courts 

have traditionally taken a liberal approach to issues of 

standing, see Crescent Park Tenants Assoc. v. Realty 

Equities Corp., 58 N.J. 98, 107-12 (1971). Moreover, 

the Court indicated in Mount Laurel II that "the need 

for a 'liberal approach' to standing is especially 

important in Mount Laurel litigation." 92 N.J. at 337. 

Under this liberal approach, a plaintiff-developer 

has standing "to pursue an action simply to vindicate 

the Mount Laurel right without seeking a builder's 

remedy." Id. at 327, 456. Similarly, a developer who 

seeks a builder's remedy but is unable to satisfy one of 

the preconditions for such relief has standing to 
9 A-0989-22

continue a Mount Laurel action. See id. at 316, 321. 

Therefore, there is no basis for requiring a plaintiffdeveloper to show that it has satisfied a precondition 

for obtaining a builder's remedy in order to pursue a 

Mount Laurel action. 

[Id. at 631-32.] 

 The trial court here noted our decision in Oceanport was distinguishable 

from the present matter. First, the court noted that plaintiff did not provide "any 

notice to . . . Freehold of its proposed affordable housing-inclusive development, 

or any information concerning its project. Unlike in the Oceanport . . . matter, 

[plaintiff] did not make any presentation or engage in any negotiations with . . . 

Freehold concerning its proposed project." 

 In Oceanport, we noted: 

A court ordinarily will not consider the remedies 

to which a party may be entitled until that party has 

established its cause of action. In a Mount Laurel case, 

the cause of action is the alleged unconstitutionality of 

the defendant-municipality's zoning because of its 

failure to provide for the municipality's fair share of 

affordable housing. See Mount Laurel II, 92 N.J. at 

214-16. If a plaintiff establishes this cause of action, 

the trial court then proceeds to the remedies stage of the 

case. Id. at 278.

[396 N.J. Super. at 630.] 

The trial court here noted, "[a]bsent evidence of an attempt to negotiate, 

the developer may be able to successfully show that the municipality's zoning 
10 A-0989-22

plan is unconstitutional . . . but the developer would be unable to obtain the sitespecific remedy sought—court-ordered approval for the . . . builder's property." 

The trial court further observed: 

In the present builder's remedy action, while 

plaintiff . . . would be able to proceed on the claim that 

[Freehold's] zoning plan is unconstitutional, arguing 

that it does not sufficiently provide for the development 

of affordable housing, absent efforts to negotiate with 

[Freehold] prior to the filing of a builder's remedy 

complaint or showing that negotiations would be futile, 

plaintiff is not entitled to a site-specific builder's 

remedy . . . . 

Notably, the court further observed, "[t]he issue to be decided by the court in 

the present builder's remedy suit is thus simply whether the municipality's 

zoning plan passes constitutional muster. A determination on this issue can and 

in fact will be made in [Freehold's declaratory judgment] action." Accordingly, 

the trial court noted the issue before it did not concern, unlike the Oceanport 

case, whether plaintiff had standing to proceed in the builder's remedy action. 

Rather, the court noted the issue before it was whether plaintiff should be 

permitted to proceed when there is a declaratory judgment action filed by 

Freehold addressing "the issue of whether [Freehold] has failed to create a 

realistic opportunity for the development of affordable housing," which is the 
11 A-0989-22

precise issue that would initially be addressed in plaintiff's builder's remedy 

lawsuit. 

We affirm substantially for the reasons set forth by the trial court. 

Plaintiff will have the opportunity to assert the same arguments in the 

declaratory judgment action challenging Freehold's assertion that it satisfied its 

constitutional obligation by creating a realistic opportunity for the development 

of affordable housing. The Oceanport case did not involve a parallel declaratory 

judgment action. In short, we discern no error by the trial court on this issue. 

B.

 Plaintiff next argues the trial court erred by failing to find plaintiff's duty 

to negotiate with Freehold was discharged because any efforts to negotiate 

would have been futile. Plaintiff contends the trial court improperly 

characterized its action in filing the builder's remedy lawsuit as a "race to the 

courthouse." Plaintiff further asserts it was compelled to file the builder's 

remedy lawsuit because of the bad faith efforts of defendant's prior attorney. 

Plaintiff also asserts the trial court did not properly consider the record of 

negotiations involving Freehold and the Rainone firm. 

Plaintiff recounts its years of discussions with Freehold to develop a 

similar site for affordable housing and the Rainone law firm's actions, in another 
12 A-0989-22

case involving Matawan, to cut off plaintiff's affiliates' access to a builder's 

remedy. Plaintiff alleges its affiliate 160 Main put Matawan on notice regarding 

its non-compliance with its fair share housing obligations. Plaintiff contends 

the Rainone firm assured 160 Main it was waiting for the planner's review of a 

concept plan, but the negotiations were actually "a guise to forestall a lawful 

builder's remedy action by 160 Main." Plaintiff asserts that given the Rainone 

firm's actions in the Matawan matter, it was concerned that defendants would 

rush to file a declaratory judgment action here and that any efforts to negotiate 

would be futile. Plaintiff maintains the Rainone firm's failure to engage in good 

faith negotiations in a virtually identical case in Matawan demonstrates that 

plaintiff approaching Freehold regarding the 500 Park Avenue property in this 

matter "would have resulted in [d]efendants rushing to file a declaratory 

judgment action" even though they were on notice for a number of years their 

ordinance did not provide a realistic opportunity to develop affordable housing. 

 Plaintiff further alleges that it was discharged of its duty to negotiate with 

Freehold before initiating its builder's remedy suit because of the futility of 

further negotiations. Plaintiff contends that despite a settlement ultimately 

reached with Freehold regarding the 200 Park Avenue property, the court failed 

to consider the record as a whole and the Rainone firm's tactics in the Matawan 
13 A-0989-22

case. Plaintiff contends there is no need to exhaust administrative remedies 

when the pursuit of those remedies would be futile or illusory. 

 We are unpersuaded by plaintiff's arguments regarding the futility issue. 

The trial court considered the history between the parties, along with plaintiff's 

argument regarding the Matawan case. The court properly rejected plaintiff's 

arguments regarding the relevance of the Matawan case and the prior history of 

negotiations with Freehold in the 200 Park Avenue matter. Specifically, the 

court noted: 

This court can take judicial notice that the governing 

body of . . . Matawan is a different body than the 

governing body of . . . Freehold. What . . . Matawan 

has or has not done with reference to its Mount Laurel 

obligations is not relevant to the present matter. While 

Matawan and Freehold . . . may both be represented by 

the same law firm, the court cannot conclude based 

upon the information presented that any steps taken 

. . . by . . . Matawan are attributable [to Freehold's prior 

law firm]. What has or has not happened in . . . 

Matawan . . . is not relevant to the present matter and 

cannot be considered by this court on the present 

motion. 

 The court further noted, "[p]erhaps the best evidence of whether efforts to 

negotiate with . . . Freehold on the interest of [plaintiff] to develop the subject 

property is found in the manner in which the [CT95/DT95] . . . matter was 

resolved." The court noted that Freehold settled the builder's remedy lawsuit 
14 A-0989-22

with plaintiff's affiliate in that separate action. The court commented, "[i]t is 

difficult to imagine the presentation of clearer evidence that efforts to negotiate 

the development of property to include affordable housing [within Freehold] can 

succeed . . . ." As the court observed, Freehold had entered into a settlement 

with plaintiff's affiliate a month prior to the filing of the builder's remedy action 

in this case. Accordingly, the court concluded, "[t]he assertion by [plaintiff] 

that any effort to reach a negotiated resolution of its claim with . . . Freehold 

would have been futile is not factually supported and is thus rejected by this 

court." We find no basis to disturb the court's conclusions. 

C.

 Plaintiff next contends the trial court erred in finding plaintiff should be 

limited to intervening in the declaratory judgment action because Freehold had 

not yet received immunity from the builder's remedy lawsuits. Plaintiff asserts 

Freehold did not file a declaratory judgment action back in July 2015 because it 

had not received substantive certification from the Council on Affordable 

Housing. Although Freehold indicated in response to the builder's remedy 

action concerning the 200 Park Avenue property that it planned to file a 

declaratory judgment action, it failed to do so until after the underlying builder's 

remedy action was filed. Plaintiff asserts Freehold delayed until it finally 
15 A-0989-22

indicated at a case management conference in February 2022, it would file a 

declaratory judgment action by March 18, 2022. Plaintiff asserts because of 

these delays, it had no reason to expect defendants would follow through with 

such filing and therefore proceeded with its builder's remedy action. Because 

Freehold failed to comply with its obligations to provide realistic opportunities 

for the construction of low- and moderate-income housing and failed to file in a 

timely manner for immunity, plaintiff argues it was appropriate for it to file a 

builder's remedy suit. Plaintiff further contends Freehold has an "urgent" need 

for affordable housing that has not been met, and it is entitled to a builder's 

remedy as a matter of law. Plaintiff argues its "right to a builder's remedy is not 

obviated by the mere possibility of an interested party advocating on its behalf 

in the declaratory judgment action." 

 Freehold counters that in order to succeed in a builder's remedy action, 

the developer must demonstrate noncompliance of the ordinance and propose a 

project with a substantial amount of affordable housing that is suitable for the 

site. Mount Laurel II, 92 N.J. at 279-80. At that point, builder's remedies will 

be afforded to plaintiffs "[w]here the plaintiff has acted in good faith [and] 

attempted to obtain relief without litigation." Id. at 218. Freehold contends that 

a municipality's failure to timely file for immunity is immaterial to whether a 
16 A-0989-22

builder's site-specific remedy will lie. It further notes that plaintiff's builder's 

remedy was not obviated by the declaratory judgment action but rather its failure 

to approach Freehold with a plan prior to filing this suit.

 We affirm substantially for the reasons set forth by the trial court in 

addressing this issue. The court noted: 

There are two matters pending before this court, 

the builder's remedy suit filed by [plaintiff] and the 

[declaratory judgment] action filed by . . . Freehold. 

[Plaintiff] cannot obtain an actual builder's remedy, that 

is, approval for development of its property in its

builder's remedy suit because it did not attempt to

negotiate a resolution with [Freehold] before filing the 

builder's remedy lawsuit and . . . has not shown that it 

would have been futile to do so. 

The trial court properly noted that plaintiff's builder's remedy lawsuit requires 

that a determination be made as to whether Freehold's zoning plan provides a 

constitutionally acceptable opportunity for the development of affordable 

housing. However, "the same determination can, and will be made in 

[Freehold's declaratory judgment] action." The court determined that as a matter 

of judicial economy, it did not make sense for parallel matters to proceed. 

Specifically, the court noted: 

It would constitute [an] inappropriate waste of 

resources on the part of . . . Freehold, Fair Share

Housing Center, the Special [Adjudicator] appointed 

in Mount Laurel proceedings . . . to allow both matters,
17 A-0989-22

the [declaratory judgment] action and the builder's

remedy action, to proceed at the same time. 

The court noted the evidence presented indicates that while Freehold did not file 

a declaratory judgment action immediately following the Supreme Court's 

decision in Mount Laurel IV2 in 2015, it was "not sitting idly by waiting for a

builder's remedy action to be filed before taking action." The court noted that it 

is "more appropriate" to address Freehold's constitutional obligation to provide 

an opportunity for the development of affordable housing in the declaratory 

judgment action. The court further stated that plaintiff alleged Freehold had an 

unmet need of eighty-five housing units. However, "[t]he Fair Share Housing 

[Center] is an interested party in the [declaratory judgment] action, as it is in all 

Mount Laurel matters, and the court finds it difficult to imagine that the [Center] 

will not take notice of [plaintiff's] interest in developing residential housing" in 

Freehold. Accordingly, the court granted Freehold summary judgment. We 

discern no basis to disturb that decision. 

 Affirmed. 

2

 In re Adoption of N.J.A.C. 5:96 & 5:97, 221 N.J. 1, 7 (2015).