William F. Thilly v. Township of Cranford

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2321-24 WILLIAM F. THILLY, Plaintiff-Appellant, v. TOWNSHIP OF CRANFORD, NEW JERSEY, and TOWNSHIP COMMITTEE OF THE TOWNSHIP OF CRANFORD, Defendants-Respondents, and 750 WALNUT AVENUE RESIDENTIAL URBAN RENEWAL LLC, 750 WALNUT DEVELOPMENT LLC, and HARTZ MOUNTAIN INDUSTRIES, INC., Defendants/Intervenors- Respondents. ___________________________ Argued September 15, 2026 – Decided October 9, 2026 Before Judges Rose and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-4334-24. William F. Thilly, appellant, argued the cause on appellant's behalf. Tracy N. Lucas argued the cause for respondents Township of Cranford, New Jersey, and Township Committee of the Township of Cranford (Jardim Meisner Salmon Sprague & Susser PC, attorneys; Scott D. Salmon, of counsel and on the brief; Julia Burzynski, on the brief). Judah Skoff argued the cause for respondents 750 Walnut Avenue Residential Urban Renewal LLC, 750 Walnut Development LLC, and Hartz Mountain Industries, Inc. (Greenbaum Rowe Smith & Davis LLP, attorneys; Judah Skoff, of counsel and on the brief; Irene Hsieh and Emmalise Earl, on the brief). PER CURIAM Self-represented plaintiff William F. Thilly appeals from a February 21, 2025 Law Division order dismissing with prejudice all claims—except fraud, which was dismissed without prejudice—asserted in his November 21, 2024 complaint in lieu of prerogative writs against defendants Township of Cranford, New Jersey (Township) and Township Committee of the Township of Cranford (Township Committee) (together, Township defendants), on a Rule 4:6-2(e) motion filed by 750 Walnut Avenue Residential Urban Renewal LLC, 750 Walnut Development LLC, and Hartz Mountain Industries, Inc. (collectively, A-2321-24 2 Developers), and joined by the Township defendants. Plaintiff also appeals from an April 25, 2025 order denying his motion to amend the complaint asserting the Township committed fraud against him, the public, and the Township Committee. We affirm. This appeal has its genesis in the redevelopment of real property located at 750 Walnut Avenue in the Township and owned by the Developers (Property). After resolving 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, the Township designated the property "an area in need of redevelopment." The Township and Developers then executed a series of agreements regarding the Property's redevelopment, including a December 21, 2020 memorandum of understanding (MOU). In the MOU, the parties contemplated further agreements, including a payment in lieu of taxes (PILOT) agreement in accordance with the Long Term Tax Exemption Law, N.J.S.A. 40A:20-1 to -22. Under the terms of the PILOT agreement, the Developers would receive a tax 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 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, 208 (1983) (clarifying and reaffirming that constitutional requirement). A-2321-24 3 abatement and pay an annual service charge (ASC). In the MOU, the parties agreed to a formula for calculating the ASC. The Township defendants then retained Phoenix Advisors, LLC (Phoenix), to review the proposed PILOT agreement. In a June 1, 2022 memorandum to the Township (Phoenix report), Phoenix suggested the terms of the proposed PILOT agreement could be negotiated to yield a more favorable outcome. Guided by the terms of the MOU, Township counsel rejected the suggested revision outlined in the Phoenix report. That same month, on June 28, 2022, the parties executed a redevelopment agreement, contingent upon the execution of a PILOT agreement. On December 13, 2022, the Township Committee voted to adopt Ordinance No. 2022-27 (2022 Ordinance), which approved the Developers' application for a PILOT agreement, but contained an unexecuted financial agreement. The Developers refused to sign the financial agreement and, on January 9, 2023, filed a lawsuit against the Township asserting, among other claims, breach of the MOU. Shortly thereafter, on January 27, 2023, plaintiff filed a three-count complaint in lieu of prerogative writs against the Township defendants challenging the 2022 Ordinance on different grounds than those asserted by the A-2321-24 4 Developers.2 In his first count, plaintiff asserted the Township defendants violated the New Jersey Constitution by unlawfully taking additional taxes under the 2022 Ordinance without just compensation. In his second count, plaintiff claimed "the Township Committee unlawfully donated tax exemptions to a for-profit developer" enabling a "sizeable profit at the expense of [Township] taxpayers." In his third count, plaintiff asserted the Township Committee violated the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, by failing to deliberate in public and cutting short his remarks at the public hearing on the 2022 Ordinance. After consolidating both actions and affording extensive discovery, on July 17, 2023, Assignment Judge Lisa Miralles Walsh granted the Developers' motion for summary judgment, dismissing plaintiff's complaint with prejudice. Plaintiff moved for leave to appeal. We denied the motion noting the Developers' action remained pending in the trial court and plaintiff failed to move to sever the actions. Thilly v. Twp. of Cranford & Twp. Comm. of Twp. Cranford, No. A-3952-22 (App. Div. Feb. 8, 2024) (slip op. at 1-2). 2 Plaintiff's appellate appendix does not include his January 27, 2023 complaint. We glean plaintiff's claims from the trial judge's decisions in the present matter and related matters. A-2321-24 5 During the bench trial on the Developers' claims against the Township defendants, the parties settled their claims. On September 10, 2024, the Township introduced to the public Ordinance No. 2024-21 (2024 Ordinance), which was consistent with the terms of the parties' settlement agreement, including a new financial agreement. Plaintiff was afforded an opportunity to comment at the committee meeting and the ensuing official meeting. At both meetings, plaintiff inquired about the terms of the amended financial agreement. On October 8, 2024, the 2024 Ordinance again was presented to the public. Neither plaintiff nor any member of the public commented at the conference meeting. During the official meeting that followed, plaintiff noted he "was an Independent candidate for Township Committee" and "spoke about his plans to revoke PILOT agreements if elected." At the conclusion of the public meeting, the Township Committee voted to adopt the 2024 Ordinance. On November 21, 2024, plaintiff filed his present complaint, challenging the propriety of the 2024 Ordinance. Similar to his January 2023 complaint, plaintiff asserted three counts, alleging the PILOT agreement adopted pursuant to the 2024 Ordinance: (1) constituted an unlawful taking; (2) amounted to an unlawful donation; and (3) violated the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. Subsumed within his third count, plaintiff further alleged A-2321-24 6 the Township engaged in "fraudulent concealment" by failing to negotiate a more favorable PILOT agreement and hiding portions of the Phoenix report from public access. In January 2025, Judge Miralles Walsh granted the Developers' motion to intervene in the present action. That same month, the Developers moved to dismiss plaintiff's complaint for failure to state a claim under Rule 4:6-2(e). The Township defendants joined the motion. Following arguments on February 14, 2025, the judge reserved decision. On February 21, 2025, Judge Miralles Walsh issued a well-reasoned written decision and memorializing order. In her decision, the judge accurately recited the law governing dismissal motions under Rule 4:6-2(e). The judge then squarely addressed the arguments raised in view of the related res judicata and entire controversy doctrines. Quoting our Supreme Court's decision in Watkins v. Resorts International Hotel & Casino, Inc., 124 N.J. 398, 412 (1991), the judge recognized the res judicata doctrine applies when three criteria are met: (1) the judgment in the prior action must be valid, final, and on the merits; (2) the parties in the later action must be identical to or in privity with those in the prior action; and (3) the claim in the later action must grow out of the same transaction or occurrence as the claim in the earlier one. A-2321-24 7 Applying those criteria here, the judge found: (1) she "reached the merits of plaintiff's first [c]omplaint and rendered a final, valid judgment of dismissal" in that action; (2) the parties were identical in both actions; and (3) plaintiff's claims in the present action "gr[e]w out of the same transaction or occurrence as the claim[s]' in the earlier consolidated action." The judge therefore concluded the res judicata doctrine precluded all claims raised in plaintiff's present complaint—except his newly raised fraud allegations. Judge Miralles Walsh nonetheless thoroughly considered plaintiff's unlawful taking, unlawful donation, and OPMA violation claims contentions against the applicable legal principles and found they failed to state a claim under Rule 4:6-2(e). We briefly summarize the judge's conclusions. In addressing plaintiff's unlawful taking claim, the judge cited the Court's decision in 515 Assocs. v. City of Newark, 132 N.J. 180, 186 (1993), and noted municipal ordinances are entitled to a presumption of validity, which can be overcome only by "a clear showing that an ordinance is arbitrary or unreasonable." Referencing her prior decision dismissing plaintiff's first action, the judge reiterated no authority supported plaintiff's claim that a PILOT agreement constitutes an unconstitutional taking. A-2321-24 8 Turning to plaintiff's unlawful donation claim, the trial judge quoted Article VIII, Section III, Paragraph 1 of the New Jersey Constitution, permitting tax exemptions for the redevelopment of blighted areas. The judge further recognized: "The Township has wide discretion to determine the parameters of the PILOT agreement," and the tax exemption in this case was part of "an arms- length transaction with consideration on both sides, also known as a contract." Regarding plaintiff's OPMA claim, the judge noted plaintiff's participation at the conference and public meetings concerning the 2024 Ordinance. The judge further found N.J.S.A. 10:4-12(b)(7) permits public bodies to exclude the public from negotiations of contracts such as the PILOT agreement. Lastly, the judge addressed plaintiff's "fraudulent concealment" allegations. Citing the "heightened pleading requirement" imposed under Rule 4:5-8(a),3 the judge was not convinced plaintiff "provided clear and convincing evidence that he or other members of the public would have reasonably relied 3 Rule 4:5-8(a) provides, in pertinent part: "In all allegations of misrepresentation, fraud, mistake, breach of trust, willful default or undue influence, particulars of the wrong, with dates and items if necessary, shall be stated insofar as practicable. Malice, intent, knowledge, and other condition of mind of a person may be alleged generally." A-2321-24 9 on the missing sections of the [Phoenix] report and ultimately attempted to negotiate a 'better deal' with the Township." Noting a dismissal motion "ordinarily [is] without prejudice" and plaintiff raised the claim for the first time, the judge dismissed his fraud allegations without prejudice. The judge granted plaintiff twenty days to move for leave to file an amended complaint. Following procedural irregularities, on March 17, 2025, plaintiff moved for leave to file his amended complaint. In his amended complaint, plaintiff asserted a single count of fraud against the Township defendants. In her ensuing decision, Judge Miralles Walsh framed the crux of plaintiff's allegations as follows: Plaintiff alleges that the Township attorneys misrepresented material information to the Township Committee before they voted to adopt the original Ordinance. Plaintiff claims the Township Committee was given a "doctored report" from a consulting group, [Phoenix,] that was advising the Township attorneys, which excluded information regarding the potential for "a better PILOT" for the Town[ship]. Plaintiff maintains that had such material information been provided, the Township Committee could have voted differently on the [2022] Ordinance . . . and would have also voted differently on the amended [2024] Ordinance . . . or at very least could have attempted to negotiate a better deal. After hearing argument on the motion, Judge Miralles Walsh reserved decision. On April 25, 2025, the judge issued a cogent written decision and A-2321-24 10 memorializing order denying plaintiff's motion. The judge thoughtfully addressed the issues, reiterating the heightened pleading standard for a fraud claim. According to the judge, the original Phoenix report was "subject to change" following "further discussions with the Township." Thus, the judge determined any changes did not constitute material misrepresentations. Additionally, the judge found plaintiff's proposed amended complaint failed to indicate the Township "defendants knew the information [they] provided to the Committee was false and that [they] intended for the Committee to rely on such information." The judge further deemed speculative plaintiff's allegations that the information in the draft report could have caused the commissioners to vote differently. On appeal, plaintiff raises various arguments challenging the trial judge's decision dismissing his complaint. In four overlapping points, he asserts the judge erroneously: considered evidence adduced at the prior trial because he did not partake in those proceedings; applied the res judicata doctrine; determined his complaint failed to state valid causes of action; and showed bias in favor of defense counsel. Contending the judge incorrectly required him to "prove fraud at the motion-to-dismiss stage rather than applying the proper A-2321-24 11 arbitrary and capricious prerogative writ standard," plaintiff maintains the judge erroneously denied his motion to amend the complaint. We have considered plaintiff's reprised contentions in view of the applicable legal principles, including our de novo review of the trial court's decision on a motion to dismiss for failure to state a claim under Rule 4:6-2(e), see Lowe v. Audet, 264 N.J. 494 , 500 (2026), and our discretionary standard of review of the court's decision on a motion to amend a complaint, see Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). We conclude plaintiff's contentions lack sufficient merit to warrant extended discussion in our written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Miralles Walsh in her well-reasoned decisions. Little need be said regarding plaintiff's newly-minted contentions that the judge was biased against him. As a preliminary matter, because plaintiff did not request the judge remove herself from the matter, his argument is improperly raised for the first time on appeal. See Cnty. of Passaic v. Horizon Healthcare Servs., Inc., 474 N.J. Super. 498 , 506 (App. Div. 2023); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We have nonetheless considered plaintiff's contentions and conclude they are unsupported. "Absent a showing of bias or prejudice, the participation of a A-2321-24 12 judge in previous proceedings in the case before him is not a ground for disqualification." State v. Walker, 33 N.J. 580, 591 (1960). Indeed, plaintiff fails to cite the judge's discussions with any party that would lead to an "objectively reasonable" "belief that the proceedings were unfair." State v. Marshall, 148 N.J. 89, 279 (1997). Plaintiff has not established his bias claim here. Affirmed. A-2321-24 13