SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 5236
- 15T1

ROBERT J. PACILLI HOMES, LLC, Plaintiff

- Appellant,

v.
TOWNSH IP 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 Before Judges Simone lli 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).

Mas on, Griff in & Pi erson, PC, attorneys for respond ent Harrison Township Joint Land Use Board (Cory K. Kestner, of counsel and on the brief). Brian J. Duffield, attorney for respondent Township of Harrison .

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opi nion shall not "constitute precedent or be binding upon any court . " A lthough 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.

November 1, 20172 A - 5236
- 15T1

PER CURIAM This appeal involves the enforcement of a settlement agreement between plaintiff Rober t 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 . T he Board passed a resolution gran ting 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 . Plainti ff installed asphalt driveway aprons instead of concrete aprons based on a n 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 enginee r, R&V, rejected the asphalt driveway aprons and required plaintiff to remove and replace them with concrete driveway aprons as required by the approvals . P laintiff responded
that the project was already completed, and demanded a release of
the performanc e bond it posted to ensure completion . To resolve the matter, p laintiff 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 field3 A - 5236
- 15T1

change (the proposed ch ange) . 1 The Board found it ap peared that Fralinger approved the change, but because it was not a minimal or de minimus deviation , it was outside th e scope of his authority to approve and plaintiff had to return to the Board for a
mod if i c ation to the requi rement for concrete driveway apron s.
T he 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 d id not want to remove the asphalt
dr iveway aprons , plaintiff's application "may be appropriately grant ed upon certification and proof that all [property owners] support the application." The Board passed a resolution , granting the application subject to t he 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 o f 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 pro perty owners to the proposed change.

1 Plaintiff also sought other changes not pertinent to this appeal.4 A - 5236
- 15T1

P laintiff 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, 20 16 . In a January 22, 2016 letter , the Board's attorney , Kevin A. Van Hise, advised the judge that "[p] ursuant to yesterday's settle ment 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 e nclosed a draft of a letter t he Board would send to all property owners . The letter notified the property owners of plaintiff's applica tion 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 owner s ] 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 wher e indicated, and return this form to

2 Plaintiff sought other relief not pertinent to this appeal.5 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. T he lett er also advised the property owners that the Board "agre ed 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 th e settlement was acceptable to [p] la intiff. As such, on Februar y 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 thu s, a majority did not consent to the proposed change.
All pa rties moved to enfo rce the settlement , and agreed t here was a settlement agreement and its term s were contained in Van Hise's January 22, 2016 letter . The parties differed as to t he6 A - 5236
- 15T1

meaning of the term "majority." Plaintiff argued that under the By - Laws of the Homeowners A ssociation , one - fourth, or six, of the property owners constituted a quorum . Thus, under this construct, it o btained the consent of more than a majority of the property

owners because seven consented to the proposed change . Defendants argued that plainti ff 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 m otion and granted d efendants' motion. After reviewing the documentary evidence , the judge inte rpreted 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 conta ined 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 [Boa rd's] letter that was prepare d 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 tha t it's a majority of the [property owners] versus some7 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] an d 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 o f 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 [prop erty owners] was required in order to achieve [p]laintiff's preferred result. Judge Curio also noted that plaintiff was "not an unsophistica ted particip ant in all of this[,]" and if "he relied

on [a] purported field chang e, 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

mot ion, granting defendants ' motion, confirming the settlement , and dismissing the complaint with prejudice. Plaintiff subsequently moved for reconsideration, which the judge denied.8 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 t he 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

st ates that "[o]nly a majority of those actually voting is required ." P laintiff 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 q u orum argument it raise d before the judge . 3

3 We decline to address plaintiff's alternative argument that the judge should have voided the s ettlement 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) (c itation 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 pres enting 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 d enying 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 parties9 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 c ircumstances,' should honor and enforce as it does other contracts." Brundage v. Estate of Cara m bio , 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) ). "T he 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 deferen ce 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 an d common sense manner," and enforce them " based on the intent of the parties, the express terms of the contract, surrounding circumstances and the unde rlying 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).10 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. (alterati on 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 , 41 8 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 Cente r 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, an d the purpose for which it was entered. M anahawkin 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 the11 A - 5236
- 15T1

contract. Conway , supra , 187 N.J. at 269 (ci ting 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

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

H ise'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 plaintif f "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 ma kes 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 th e Board's approval of plaintiff's application. Moreover, no document in evidence contains any reference to
the Homeowners A ssociation' 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 that12 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 act ually voted . Affirmed.