SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5236-15T1

ROBERT J. PACILLI HOMES, LLC,

Plaintiff-Appellant,

v.

TOWNSHIP 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 Simonelli 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).

Mason, Griffin & Pierson, PC, attorneys for 

respondent 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NOT FOR PUBLICATION WITHOUT THE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 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.

November 1, 2017
2 A-5236-15T1

PER CURIAM

This appeal involves the enforcement of a settlement 

agreement between plaintiff Robert 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. The Board passed a resolution granting 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. 

Plaintiff installed asphalt driveway aprons instead of 

concrete aprons based on an 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 engineer, R&V, rejected the asphalt driveway aprons and 

required plaintiff to remove and replace them with concrete 

driveway aprons as required by the approvals. Plaintiff responded 

that the project was already completed, and demanded a release of 

the performance bond it posted to ensure completion. 

To resolve the matter, plaintiff 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 field 
3 A-5236-15T1

change (the proposed change).

1 The Board found it appeared that 

Fralinger approved the change, but because it was not a minimal 

or de minimus deviation, it was outside the scope of his authority 

to approve and plaintiff had to return to the Board for a 

modification to the requirement for concrete driveway aprons. 

The 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 did not want to remove the asphalt

driveway aprons, plaintiff's application "may be appropriately 

granted upon certification and proof that all [property owners] 

support the application." The Board passed a resolution, granting 

the application subject to the 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 of 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 property owners to the proposed change.

 

1 Plaintiff also sought other changes not pertinent to this 

appeal.
4 A-5236-15T1

Plaintiff 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, 2016. In a January 22, 2016 letter, the 

Board's attorney, Kevin A. Van Hise, advised the judge that 

"[p]ursuant to yesterday's settlement 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 enclosed a draft of a letter the Board would send 

to all property owners. The letter notified the property owners

of plaintiff's application 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 owners] 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 where 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. The letter also advised the 

property owners that the Board "agreed 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 codefendants, and by telephone conversation with 

[p]laintiff's counsel on February 4, with 

minor modification to the originally drafted 

letter, I was advised that the settlement was 

acceptable to [p]laintiff. As such, on 

February 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 thus, a majority did not consent to the proposed 

change.

All parties moved to enforce the settlement, and agreed there 

was a settlement agreement and its terms were contained in Van 

Hise's January 22, 2016 letter. The parties differed as to the 
6 A-5236-15T1

meaning of the term "majority." Plaintiff argued that under the 

By-Laws of the Homeowners Association, one-fourth, or six, of the 

property owners constituted a quorum. Thus, under this construct, 

it obtained the consent of more than a majority of the property 

owners because seven consented to the proposed change. Defendants 

argued that plaintiff 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 motion and granted defendants' 

motion. After reviewing the documentary evidence, the judge

interpreted 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 contained 

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 [Board's] letter that was 

prepared 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 that it's a 

majority of the [property owners] versus some 
7 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] and 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 

of 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 [property owners] was required in order 

to achieve [p]laintiff's preferred result.

Judge Curio also noted that plaintiff was "not an 

unsophisticated participant in all of this[,]" and if "he relied 

on [a] purported field change, 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 

motion, 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 the 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 

states that "[o]nly a majority of those actually voting is 

required." Plaintiff 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 quorum 

argument it raised before the judge.

3

 

3 We decline to address plaintiff's alternative argument that the 

judge should have voided the settlement 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) (citation 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 presenting 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 denying 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 parties 
9 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 circumstances,' should 

honor and enforce as it does other contracts." Brundage v. Estate 

of Carambio, 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)). "The 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 deference 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 and common 

sense manner," and enforce them "based on the intent of the 

parties, the express terms of the contract, surrounding 

circumstances and the underlying 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. (alteration 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, 418 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 Center 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, and the purpose for 

which it was entered. Manahawkin 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 the 
11 A-5236-15T1

contract. Conway, supra, 187 N.J. at 269 (citing 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 

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

Hise'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 plaintiff "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 makes 

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 the 

Board's approval of plaintiff's application. 

Moreover, no document in evidence contains any reference to 

the Homeowners Association'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 that 
12 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 actually voted.

Affirmed.