                                NOT FOR PUBLICATION WITHOUT THE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-1534-18T4

VILLAGE 35 LP,

          Plaintiff-Respondent,

v.

MOUNTAIN HILL, LLC,

     Defendant-Appellant.
_________________________

                    Argued November 7, 2019 – Decided November 20, 2019

                    Before Judges Mayer and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-1191-18.

                    Gary E. Fox argued the cause for appellant (Fox &
                    Melofchik LLC, attorneys; Gary E. Fox, on the briefs).

                    Paul H. Schneider argued the cause for respondent
                    (Giordano Halleran & Ciesla, PC, attorneys; Paul H.
                    Schneider, on the brief).

PER CURIAM
      Defendant appeals from an October 26, 2018 order granting summary

judgment in favor of plaintiff. We affirm.

      In 2014, defendant contracted to sell real property located in Middletown

to plaintiff (contracted property). Plaintiff intended to develop a shopping

center on the property. The closing date for the real estate transaction was

contingent on plaintiff obtaining development approval for a shopping center

within a certain period of time (approval period). The approval period could be

extended for two additional years provided plaintiff paid $250,000 to defendant

for each year of the extension.

      The contract also contained a tolling provision, suspending all relevant

time periods, including the approval period and closing date, "during the

pendency of litigation in connection with any of the approvals, permits and/or

utilities . . . for the Property (or any portion thereof)" or "in the event of any

governmental delays in connection with the Approvals process; however in no

event shall the tolling exceed [two] years total."

      In 2015, the Middletown Planning Board (Board) granted plaintiff's

general development plan (GDP) for the contracted property.            The GDP

contemplated additional approvals and permits to construct the shopping center.




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      Thereafter, plaintiff applied for subdivision and site plan approval. The

Board held six public hearings on non-consecutive dates starting on June 1, 2016

and continuing until July 12, 2017. On July 17, 2017, the Middletown Township

Committee (Committee) adopted a resolution authorizing the Board to

determine if the contracted property and adjacent parcels met the requirements

for an area in need of redevelopment under the Local Redevelopment and

Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49 (Investigation Resolution).

      Representatives for plaintiff, defendant, and a third party to whom

defendant was selling another parcel allegedly met with municipal officials on

August 18, 2017. Municipal officials purportedly advised the Board "did not

like and would not approve [plaintiff's] site plan application ." The municipal

officials suggested that in the event the contracted property was recommended

for redevelopment, it would need to be developed pursuant to the LRHL and

would require changes to plaintiff's pending application. Defendant denies such

a conversation occurred.

      After adoption of the Investigation Resolution, plaintiff claimed the Board

refused to continue hearings on its application. Defendant claimed plaintiff

"chose to suspend the processing of its application as of October 2017."




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       On December 6, 2017, the Board recommended the Committee designate

the area, including the contracted property, an "area in need of redevelopment"

under the LRHL. The Committee agreed and, on December 18, 2017, adopted

Resolution No. 2017-294 (Redevelopment Resolution), designating the

contracted property suitable for redevelopment.

      About a month after adoption of the Redevelopment Resolution, a group

of local residents, known as Minding Middletown, LLC, filed a complaint in

lieu of prerogative writs, challenging the resolution designating portions of the

municipality for redevelopment (Minding Middletown Litigation).

      Based on the designation of the contracted property as an area in need of

redevelopment and the Minding Middletown Litigation, on February 27, 2018,

plaintiff notified defendant the tolling provision in the contract was triggered.

Defendant denied the contract was tolled as a result of either event, and claimed

"there [was] nothing prohibiting [plaintiff] from proceeding with the pending

application."

      Plaintiff filed an action on April 3, 2018, seeking a declaration that the

parties' contract was tolled. After defendant filed its answer, plaintiff moved

for summary judgment. Defendant filed opposition to plaintiff's motion and

cross-moved for summary judgment.


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                                       4
      On August 3, 2018, the motion judge heard the arguments of counsel on

the summary judgment motions. The judge issued an oral decision on August

31, 2018, granting plaintiff's motion and denying defendant's cross-motion.1

The judge found "the terms of the contract must govern." The judge explained

"the record plainly contradicts that [plaintiff] voluntarily withdrew and

suspended its application. . . . [W]hat is shown is that each of the parties were

advised that further hearings on the application would be suspended pending the

results of the [redevelopment] investigation." According to the judge, once the

municipality "determined that the subject property was, indeed, in need of

redevelopment . . . it can hardly be argued that [plaintiff] would be able to

comply with the terms of the contract" by obtaining non-appealable

governmental approvals. The judge also determined "[t]he Minding Middletown

litigation is a direct challenge to [the municipality]'s redevelopment plan. It can

hardly be argued that any result of that litigation is entirely independent or

concerning to this matter." Based on these findings, the judge concluded the

time periods under the contract tolled as of December 18, 2017.




1
  The motion judge entered inconsistent orders memorializing his oral decision.
Amended orders, correcting the original motion judge's inadvertent error, were
signed by a different judge on October 26, 2018.
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      On appeal, defendant argues there were genuine issues of material fact

concerning "governmental delay in connection with the Approvals process,"

precluding a determination as a matter of law that the contract's tolling provision

was triggered.    In addition, defendant contends the Minding Middletown

Litigation was not "in connection with any of the approvals for the property"

and therefore did not trigger the contract's tolling requirement.

      Our review of rulings on motions for summary judgment is de novo,

applying the same legal standard as the trial court. Lee v. Brown, 232 N.J. 114,

126 (2018). Summary judgment shall be granted when there is no genuine issue

of material fact and the movant is entitled to judgment as a matter of law. R.

4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

      When a party files a cross-motion for summary judgment, alleging no

genuine disputes of material fact, that party's ability to argue genuine factual

issues is limited on appeal. Spring Creek Holding Co. v. Shinnihon U.S.A., 399

N.J. Super. 158, 177 (App. Div. 2008). "[S]ince both sides moved for summary

judgment, one may fairly assume that the evidence was all there and the matter

was ripe for adjudication." Morton Int'l Inc. v. Gen. Accident Ins. Co. of Am.,

266 N.J. Super. 300, 323 (App. Div. 1991).          A cross-movant may defeat

summary judgment if the cross-movant can prove a genuine issue of material


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                                        6
fact would exist if the moving party's version of the facts is accepted. O'Keeffe

v. Snyder, 83 N.J. 478, 487 (1980).           However, a factual dispute of an

"insubstantial nature" is not sufficient to defeat summary judgment. Inv'rs Bank

v. Torres, 457 N.J. Super. 53, 64 (App. Div. 2018) (citing Brill, 142 N.J. at 529-

30).

       "The interpretation of a contract is ordinarily a legal question for the court

and may be decided on summary judgment unless 'there is uncertainty,

ambiguity or the need for parol evidence in aid of interpretation. . . .'" Celanese

Ltd. v. Essex Cty. Improvement Auth., 404 N.J. Super. 514, 528 (App. Div.

2009) (omission in original) (quoting Great Atl. & Pac. Tea Co. v. Checchio,

335 N.J. Super. 495, 502 (App. Div. 2000)). In reviewing contract terms, the

term should be interpreted to give effect to the parties' objectively reasonable

expectations, considering the attendant circumstances and purpose of the

contract. Ibid. (citing Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171,

183-84 (1981)).

       An appellate "court must consider contractual language in the context of

the circumstances at the time of drafting and . . . apply a rational meaning in

keeping with the expressed general purpose. [I]f the contract into which the

parties have entered is clear, then it must be enforced as written." Serico v.


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                                          7
Rothberg, 234 N.J. 168, 178 (2018) (alterations in original) (quoting In re

County of Atlantic, 230 N.J. 237, 254-55 (2017)). "Where the terms of an

agreement are clear, [courts] ordinarily will not make a better contract for parties

than they have voluntarily made for themselves, nor alter their contract for the

benefit or detriment of either, particularly in a commercial, arms-length setting."

Carroll v. United Airlines, Inc., 325 N.J. Super. 353, 358-59 (App. Div. 1999).

      Applying these principles, we are satisfied that the time periods under the

parties' contract were tolled until the earlier of two years from December 18,

2017 or the "final disposition of the Minding Middletown [L]itigation and the

end of governmental delay in connection with the Approvals process." The

governmental delay occurred when the Committee adopted the Redevelopment

Resolution that included the contracted property. While defendant disputes

what may or may not have been said at the August 2017 meeting with municipal

officials, defendant does not, and cannot, dispute that, on September 13, 2017,

the Board declined to proceed with plaintiff's subdivision application

contemplation of redevelopment, thereby triggering the contract's tolling

provision based on a governmental delay in connection with the approval

process.




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                                         8
       We also conclude the judge properly determined that the Minding

Middletown Litigation triggered the contract's tolling provision because that

matter was "litigation in connection with" plaintiff's development approvals.

The Redevelopment Resolution did not indicate whether the redevelopment plan

would displace the existing underlying zoning or create overlay zoning. If

Minding Middletown, LLC was successful in its litigation challenging the

Redevelopment Resolution, plaintiff's application could have been impacted.

See N.J.S.A. 40A:12A-7(a) (requiring redevelopment projects to proceed only

"in accordance with a redevelopment plan adopted by ordinance of the municipal

governing body, upon its finding that the specifically delineated project area is

located in an area in need of redevelopment . . . according to [statutory]

criteria.").

       We are satisfied the contract's tolling provision was triggered by both the

"litigation in connection with" clause and the "governmental delay in connection

with" clause.

       Affirmed.




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