A Christmas present for Paradise Park: Part 2, “in contemplation”
[Continued from yesterday's Part 1.]
As we saw yesterday, to make In the ruling (available here in .pdf) handed down two days before Christmas regarding the applicability of the New Jersey Mobile Home Protection Act to Paradise Park, a story I’ve been following this story for 2½ years (early posts in Part 1, Part 2, Part 3, Part 4, Part 5, and slow expulsion from Paradise), the court has to define what this meant:
a. Any sale or transfer of the property of a private residential leasehold community which is not made in contemplation of changing that property to a use or uses other than as a private residential leasehold community.
Now I might do it pat, now he is praying;
And now I’ll do’t. And so he goes to heaven,
And so am I revenged.
Statutes are written by people striving to produce particular results, not are seldom those who have to administer the statutes they write. They thus can use phrases which are easy to understand and very hard to discern when in dispute. Further, the court cannot go back and ask the legislature to clarify its intent – that legislature is long since dispersed, and in any case it is a presumption of jurisprudence that legislatures meant what they wrote and wrote what they meant. The court, therefore, has to proceed from written evidence in the statute, and from the body of law pertaining to a statute.
The means used by courts to accomplish this task are well settled. In interpreting a statute, we must determine the Legislature’s intent. D’Annunzio v. Prudential Ins. Co. of Am.,192 N.J. 110, 119 (2007). To determine that intent, we start with the plain language of the statute, and “ascribe to the statutory language its ordinary meaning.” Ibid. “If the plain language leads to a clear and unambiguous result, then our interpretive process is over.”
The court held that:
We now define the term “in contemplation” of changing the use as denoting a state of mind involving less commitment to action than would an “intent” to change the use.
This makes perfect sense. Precisely because conscience does make cowards of us all, I can contemplate many things that I did not intend to do; indeed, it’s hard to imagine that I intend something without having spent an interval, even if a brief one, contemplating whether doing it is worth the risk or cost.
and am I then revenged,
To take him in the purging of his soul,
When he is fit and season’d for his passage?
No!
This is an inner state of mind, something a court cannot adjudicate, so the court converts this metaphysical abstraction into a concrete obligation, and places squarely on the contemplator:
In this context, we further hold that a seller invoking such an exemption must have a rational, good faith basis to believe, under all of the attendant circumstances, that the sale was not made “in contemplation” of changing the use of the property.
While I wasn’t there, I suspect that at this moment the original seller (Mr. Somers) and his legal counsel both sat up as straight as if touched by a taser.
I’m responsible?!?
Based on the evidence presented to the trial court, we are satisfied that a rational fact finder could find that Somers, as the seller, did not have a good faith basis to invoke the exemption in N.J.S.A. 46:8C-13(a). We thus reverse the trial court’s grant of summary judgment and remand.
The sellers had thought themselves merely as bystanders in a dispute between Mr. Bollerman as buyer and the Paradise Park residents – and now the court was saying – is saying, subject to a factual trial where everyone including the seller will be under oath – that the seller is not free from this controversy.
Bummer, dude
What’s the evidence regarding ‘contemplation’ of a change in use?
In seeking for the elusive ‘contemplation,’ the court looked at the trial record regarding three things, and found “a wealth of probative evidence of defendants’ state of mind concerning the future use of the Park property” (Page 36)
The contract was subject to a ninety-day due diligence period. On October 21, 2004, approximately two months after the signing of the contract, Bollerman’s attorney Gary Edelson [Since disbarred – Ed.] wrote Somers’s counsel a letter requesting that the due diligence period be extended until February 26, 2005 [Which, as we will see, was granted – Ed.]
1. Lobbying activities of the seller and buyer
The record makes crystal clear that the seller was fully cognizant of the
If only it were as easy as giving them a cake
On June 4, 2004, Somers wrote a letter to the Highlands Planning Board, intending that it be accepted in lieu of his formal testimony. Under the then prevailing zoning requirements for front, rear, and side yard clearances, only fifteen or sixteen modern mobile homes could fit on the site. According to Somers, it had become necessary to apply to the Zoning Board of Adjustment for a variance whenever a mobile home was replaced.
Zoning changes with whim and fashion, and with the evolving modern American home. What was big enough fifty years ago is anachronistically obsolescent today. Ordinarily this doesn’t matter to the owners of existing homes, but because mobile homes fall into a netherworld, neither real estate nor truly movable chattel, they get caught up in these absurdities, such as applying for a rezoning each time an existing home is swapped for another existing home.
Arguing that the site’s mobile home use had become obsolete, Somers asserted that the park, as presently constituted, would not be able to accommodate the modern mobile homes sold in today’s market. Somers thus urged the Board to re-zone the park property to permit the development of single-family type homes.
At this precise moment, it seems Mr. Somers was ‘in contemplation’ of a change in use – from mobile homes to single-family stick-built homes. Further, the record suggests he intended this to happen via an orderly transition, not a wholesale redevelopment. Let me reiterate – this is perfectly reasonable, and from a real estate perspective understandable, as it improves the locality’s basic budget algebra:
My parents can’t afford to pay for schools
In so doing, Somers made the following statements about the potential development of the site, and the resulting benefits to the municipality:
[snip]
5. The Boro collects no taxes on mobile homes. They are specifically exempt under the State Statute.
Still more evidence that mobile homes are in a netherworld, neither property nor chattel.
(The right policy answer, by the way, is that they are real estate the same way a condo or co-op unit is real estate, and should be seen as such.)
Correct-amundo!
That does not apply to town homes, of course. This rezoning will provide a permanent and reliable higher tax base. I suspect there will also be some building fees.
Mr. Somers knew full well that a resident-protection statute applied:
Somers noted the “very serious State laws long in effect that govern the closing/ conversion of Mobile-home parks.” He added that residents of these parks had “the most protected type of tenancy in
He certified that he wrote the letter in response to a newspaper story about the Planning Board reviewing the master plan, thinking that rezoning his property might benefit himself and the town. He claimed that the letter was thus “not related to any sale of the property.”
The picture of Mr. Somers emerging from the court’s decision is of an individual who becomes entangled with his neighbor, loses a judgment that he cannot satisfy by any meanings short of selling the property, and suspects his neighbor intends to do something he would not.
On June 10, 2004, six days after the date of this letter, the Planning Board held a public hearing at which Bollerman testified under oath. According to Dibble’s certification, Bollerman testified about “redevelopment plans.” Conversely, Bollerman claimed that his appearance was not related to any application for development. He was simply invited to testify as a local property owner to discuss the master plan. It is undisputed that both Bollerman and Somers sought” zoning flexibility for the property.
At the time of the Board meeting, Bollerman and Somers were engaged in active pre-contract negotiations, eventually leading to the agreement signed by them on August 26, 2004.
As the court put it:
The Lobbying Activities of Seller and Buyer: The record shows that during contract negotiations, and even after the signing of the final agreement, both Bollerman and Somers engaged in conduct which can be fairly characterized as lobbying to change the municipal zoning code to permit the development of the property for a use other than as a mobile home park (our emphasis).
If you think that’s good evidence that change in use was ‘in contemplation,’ wait until you see what follows:
[Continued tomorrow in Part 3.]
Write a comment