MON-L-004027-20 12/14/2020 12:19:39 PM Pg 1 of 9 Trans ID: LCV20202269641

SILLS CUMMIS & GROSS P.C.

Meryl A. G. Gonchar, Esq. (Atty. ID 022571981)
Mark E. Duckstein, Esq. (Atty. ID 030711987)
One Riverfront Plaza
Newark, New Jersey 07102
(609) 227-4639

Attorneys for Plaintiff

Monmouth Commerce Center, LLC

MONMOUTH COMMERCE CENTER, SUPERIOR COURT OF NEW JERSEY

LLC, LAW DIVISION – MONMOUTH COUNTY
DOCKET NO.
Plaintiff,
Civil Action
v.
COMPLAINT IN LIEU OF
HOWELL TOWNSHIP, and THE PREROGATIVE WRITS
HOWELL TOWNSHIP COUNCIL,

Defendants.

Plaintiff, MONMOUTH COMMERCE CENTER, LLC (“Monmouth Commerce”), by its

attorneys, Sills Cummis & Gross P.C., as and for its Complaint In Lieu of Prerogative Writs

against defendants Howell Township (“Township”) and the Howell Township Council

(“Township Council”), alleges as follows:

THE PARTIES

1. Plaintiff Monmouth Commerce is a limited liability company of the State of New

Jersey with an address of 1800 Water Works Road, Old Bridge, New Jersey 08857. Monmouth

Commerce is the contract purchaser of the property located at the intersection of Randolph Road

and Oak Glen Road, Howell, New Jersey 07731, and designated on the tax maps of Howell

Township as Block 5, Lots 2 and 3 (“Property”).

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2. Defendant Township is a body corporate and politic situated in Monmouth

County with offices at Howell Township Municipal Building, 4567 Route 9 North, Howell, New

Jersey 07731.

3. Defendant Township Council constitutes a body politic duly authorized under the

laws of the State of New Jersey, and serves as the governing body of the Township.

FACTUAL BACKGROUND

4. Monmouth Commerce submitted an application (the “Application”) to the

Howell Township Planning Board (“Board”) for preliminary and final site plan approval, several

design waivers/exceptions, and extended vested rights to develop the Property with nine (9)

warehouse buildings totaling approximately 1,242,102 square feet, along with accessory office

use and associated improvements in four phases.

5. Warehousing is a permitted use of the Property, and the Application met all

minimum setbacks and coverage limitations, as well as other bulk requirements such as building

height and minimum number of parking and loading spaces.

6. At the time of submission of the Application, the Board’s planner identified the

need for one variance pursuant to N.J.S.A. 40:55D-7(c) from Section 188-63 of the Township

Land Use Ordinance (“Ordinance”), which is Chapter 188 of the Administrative Code of the

Township of Howell (“Township Code”), to permit Monmouth Commerce to maintain existing

trees along a portion of the property frontage rather than tearing out those trees to plant new

landscaping in order to create the required 50-foot buffer plantings.

7. The possible need for a second variance pursuant to N.J.S.A. 40:55D-70(c) from

Section 188-79.B.(3)(b) of the Ordinance was identified during the course of the hearings on the

Application, in order to permit truck trailer parking in the side yard of the Property. The Board

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ultimately determined that truck and/or truck trailer parking constitutes “outdoor storage,” and

while outdoor storage is a permitted accessory use in the SED Zone, it is required to be located

in a screened rear yard. To the extent the truck and/or truck trailer parking was not in a screened

portion of the rear yard, the Board required Monmouth Commerce to secure a (c) variance.

8. Chapter 139 of the Township Code requires a non-refundable application fee of

$1,000 for each 10,000 square feet of building area, plus $100 for each additional 1,000 square

feet of building area beyond the initial 10,000 square feet of building area for preliminary site

plan approval.

9. The building area for the project totaled 1,242,202 square feet.

10. A review letter dated December 14, 2018, from the Board engineer calculated the

application fee for preliminary site plan approval at $124,220.00.

11. The Township Code further required an application fee for final site plan approval

in an amount equal to one-half of the application fee for preliminary site plan approval. The

Township Code required this application fee even where the final application is submitted with,

and is reviewed simultaneously with, the preliminary site plan application.

12. In the review letter dated December 14, 2018, the Board engineer calculated the

application fee for final site plan approval to be $62,110.00.

13. Monmouth Commerce paid a combined non-refundable application fee of

$186,330.00 on or about December 17, 2018.

14. Thereafter, Monmouth Commerce submitted revised site plans as part of the

Application and before the commencement of hearings, as a result of direction given by the

Board’s professionals to change the one building originally proposed for office use and replace it

with a ninth warehouse building. The Township Code requires an additional non-refundable

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application fee equal to the greater of $1,000 or ten percent (10%) of the initial application fee

for filing any revised plans.

15. The application fee for the submission of revised plans was $18,633.00.

Monmouth Commerce paid this additional $18,633.00 fee on or about February 12, 2019.

16. Monmouth Commerce paid application fees totaling $204.963.00.

17. Monmouth Commerce could not proceed with its Application for preliminary and

final site plan approvals or amend its Application without making such payments, and failure to

pay would preclude obtaining approvals necessary to develop its proposed project.

18. In addition to the application fees totaling $204,963.00, Monmouth Commerce

has to date paid the following amounts charged by the Township: (i) $122,999.93 in escrow fees

to cover the costs of the Board’s professionals’ review of the Application, including the Board’s

attorney (except for the cost of his attendance at regular board hearings on the Application), and

the Board’s consulting engineers, planners, traffic engineers and landscape architect; (ii)

$2,400.00 in fees for special meetings; and (iii) $1,000.00 in fees for Technical Review

Committee meetings.

COUNT I

IMPROPER APPLICATION FEES AND FEE ORDINANCE

19. Monmouth Commerce incorporates the allegations of paragraphs 1 through 18

above as if fully set forth herein.

20. The purpose of application fees, pursuant to N.J.S.A. 40:55D-8.b., is to cover

“the administrative costs” associated with implementation of the New Jersey Municipal Land

Use Law, N.J.S.A. 40:55D-1 et seq. (“MLUL”) and to “defray the cost of tuition for those

persons required to take the course in land use law and planning in the municipality” as required

by statute.

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21. The mandatory application fees paid by Monmouth Commerce far exceed the

administrative costs associated with the Application and could pay the costs of tuition for land

use courses for at least dozens of board members -- far more than contemplated by the MLUL.

22. The Application was not complex or complicated from an administrative

standpoint.

23. Upon information and belief, the fees paid by Monmouth Commerce far exceed

the actual costs of all municipal operations involved with the handling and processing of the

Application.

24. Upon information and belief, the fees paid by Monmouth Commerce far exceed

the actual costs of tuition for land use courses for all members of the Board.

25. The escrow fees paid by Monmouth Commerce, exceeding $122,000, covered the

costs of all other charges incurred by the Board and the Township relative to the Application

(i.e., all charges other than administrative expenses), including approximately 19 attorneys,

engineers, landscape architect, planners, and traffic engineers, for the review of plans and

documents submitted by Monmouth Commerce, attendance at meetings and hearings, and

preparation of review letters and the Resolution.

26. While the proposed development that is the subject of the Application is large, the

size of the proposed development, in terms of building square footage, bears no correlation to the

administrative costs related to the Application, particularly where, under Township practices,

equally excessive escrow fees are collected to defray the cost of all charges from consultants

(except the Board attorney’s charges for attendance at regular Board hearings that are paid from

the application fees).

27. The formula used by the Township to calculate application fees is not reasonably

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related to the amount of administrative costs necessitated by the subject application.

28. The application fees charged to Monmouth Commerce in connection with its

application were unreasonable and constitute an illegal exaction.

29. Chapter 139 of the Township Code is in violation of the MLUL, both on its face

and as applied.

WHEREFORE, Plaintiff, MONMOUTH COMMERCE CENTER, LLC, respectfully

requests that this Court enter judgment in favor of Plaintiff as follows:

a. Invalidating Chapter 139 of the Township Code;

b. Awarding Plaintiff reimbursement of excessive and unreasonable

application fees;

c. Awarding Plaintiff pre-judgment interest;

d. Awarding Plaintiff its attorneys’ fees and costs of suit; and

e. Granting such other and further relief as the Court deems appropriate.

SILLS CUMMIS & GROSS P.C.

Attorneys for Plaintiff MONMOUTH COMMERCE
CENTER, LLC

By: s/Mark E. Duckstein

Mark E. Duckstein
Meryl A. G. Gonchar

Dated: November 14, 2020

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DESIGNATION OF TRIAL COUNSEL

Plaintiff hereby designates Meryl A. G. Gonchar, Esq. and Mark Duckstein, Esq. as trial

counsel.

SILLS CUMMIS & GROSS P.C.

Attorneys for Plaintiff MONMOUTH COMMERCE
CENTER, LLC

By: s/Mark E. Duckstein

Mark E. Duckstein
Meryl A. G. Gonchar

Dated: November 14, 2020

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R. 4:5-1 CERTIFICATION

I certify that the matter in controversy is not the subject of any other action pending in

any other court or in any arbitration proceeding (except that Plaintiff has submitted to the

Monmouth County Construction Board of Appeals an objection to and appeal of the escrow

funds charged by the Board’s consultants in connection with the Application that is the subject of

this litigation (appeal number 20-09 and appeal number 20-10), and except that Plaintiff has

appealed the denial of the application by the Board (docket number MON-L-001585-20)), that

no such proceedings are contemplated and that no other party should be joined in this action. I

am not aware, based on facts known to date, of any non-party who should be joined in the action

pursuant to R. 4:28 or who is subject to joinder pursuant to R. 4:29-1(b) because of potential

liability to any party on the basis of the same transactional facts. Plaintiff reserves its right to

join additional defendants based on plaintiff’s ongoing factual investigation. I acknowledge

plaintiff’s continuing obligation to amend this certification pursuant to R. 4:5-1.

I certify that the foregoing statements made by me are true. I understand that if the any

of the foregoing statements made by me are willfully false, I am subject to punishment.

SILLS CUMMIS & GROSS P.C.

Attorneys for Plaintiff MONMOUTH
COMMERCE CENTER, LLC

By: s/Mark E. Duckstein

Mark E. Duckstein
Meryl A. G. Gonchar
Dated: November 14, 2020

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R. 4:69-4 CERTIFICATION

Pursuant to R. 4:69-4, I certify that there are no transcripts relevant to the matter in

dispute in this Complaint.

I certify that the foregoing statements made by me are true. I understand that if the any

of the foregoing statements made by me are willfully false, I am subject to punishment.

SILLS CUMMIS & GROSS P.C.

Attorneys for Plaintiff MONMOUTH
COMMERCE CENTER, LLC

By: s/Meryl A. G. Gonchar

Meryl A. G. Gonchar
Dated: November 14, 2020