On May 30, 2018 a
Answer
was filed
involving a dispute between
Pennrose Llc,
and
Andre Oliveriera,
Annette L Smith,
Aparecida S Coutinho,
Apc Associates Llc,
Carl Muller,
Carol L Radomski,
Carol Muller,
Chakrya K Molinoff,
Charles Furlong,
Christine E Herb,
Christine Greatrex,
Daniel Hanks,
Daryl F Tonia,
David Hercock,
Diane Speer,
Diego Castellanos,
Doris G Blyler,
Edward Mulka,
Elizabeth Falco,
Erika Gore,
Eugene M Flacche,
Eva Hanks,
George C Greatrex Jr,
George Freudenberg,
Giovanna Ferriera,
Hoover Quintero Garcia,
Hui Y Shih,
James E Weist,
Jeffrey B Canfield,
Jeffrey D Herb,
Jeffrey L Molinoff,
Joanne K Welch,
John M Pfrommer,
John S Radomski,
Jose A Coutinho,
Joseph Cavalieri,
Karen Woznica,
Katherine O Schimmel,
Keenan Builders Llc,
Lee H Schimmel,
Margo Furlong,
Marie E Kern,
Ming T Shih,
Muir A Mcmath,
Paulette Smith,
Rebecca Castellanos,
Recon Investment Group Llc,
Richard J Smith,
Robert Gore,
Robert Woznica,
Ronnie M Tarchichi,
Roseanne M Canfield,
Russell Smith,
Scott G Kern,
Sigmund Tonia,
Susan M Stevens,
Syeda F Ahmed,
Syed M Ahmed,
Theodore J Speer Jr,
Thomas B Mitchell,
Umur Selek,
Vito Brasile,
Warren G Blyler,
Wongsduan Mulka,
for Mt. Laurel
in the District Court of Burlington County.
Preview
BUR L 001147-18 05/30/2018 Pg 1 of 17 Trans ID: LCV20181038372
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BARON & BRENNAN, P.A.
Jeffrey I. Baron, Esquire
Attomey I.D. No. 001451973
Jeffrey M. Brennan, Esquire
Attomey LD. No. 015542002
STAFFoRDSHIRE PRoFESSIoNAL CENTER
1307 White Florse Road
Building F- Suite 600
Voorhees, New Jersey 08043
Phone: 856-627-6000
Fax:. 856-627-4548
Attomeys for Third-Party Defendant
Russell Smith
IN THE MATTER OF THE SUPERIOR COURT OF NEW JERSEY
APPLICATION OF THE TOWNSHIP BURLINGTON COUNTY
OF MOORESTOWN, COTINTY OF LAW DIVISION
BURLINGTON
DOCKET NO. BUR-L-1 604.1 5
CIVIL ACTION
PENNROSE, LLC,
ANSWER TO THIR-D-PARTY
Third-Party Plaintiff, COMPLAINT, SEPARATE DEFENSES
AND AMENDED COUNTERCLAIM
vs
APC ASSOCIATES, LLC, et al.,
Third-Party Defendants.
Third-Party Defendant Russell Smith ("Smith"), by and tkough his undersigned
attomeys, and by way of Answer to the Third-Party Complaint filed by Intervenor-
Defendant/Third-Party Plaintiff Pennrose, LLC ("Perurose"), says as follows:
1. Admitted that Pennrose has filed a Third-Party Complaint. The remaining
allegations set forth in this paragraph are legal conclusions to which no response is required.
2. Admitted that Pennrose's Third-Party Complaint does not seek money damages.
The remaining allegations set forth in this paragraph are legal conclusions to which no response
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is required.
The Parties
3. Smith is without sufEcient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
4. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
5. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
6. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
7. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
8. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
9. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
10. Smith is without sufficient information to form a belief as to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
11. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
12, Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
13. Smith is without sufficient information to form a beliefas to the allegations set
2
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forth in this paragraph and therefore leaves Pennrose to its strict proofs.
14. Smith is without suffrcient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
15. Admitted.
16. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
17. Smith is without sufficient information to form a beliefas to the allegations set
fo(h in this paragraph and therefore leaves Pennrose to its strict proofs.
18. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
19. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
20. Smith is without sufiicient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
21. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
22. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
23. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
24. Smith is without sufficient information to form a belief as to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
25. Smith is without sufficient information to form a beliefas to the allegations set
J
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forth in this paragraph and therefore leaves Pennrose to its strict proof's.
26. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Penruose to its strict proofs.
27. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
28. Smith is without sufficient information to form a beliefas to the allegations set
lorth in this paragraph and therefore leaves Pennrose to its strict proofs.
29. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
30. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
31. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
32. Smith is without sufficient information to form a belief as to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
33. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Penrose to its strict proofs.
34. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
35. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
36. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
4
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37. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
38. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
39. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
40. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
41. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pemrose to its strict proofs.
42. Smith is without sufficient information to form a belief as to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
43. Smith is without sufficient information to form a beliefas to the allegations set
fo(h in this paragraph and therefore leaves Pennrose to its strict proofs.
44. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Penrrose to its strict proofs.
45. Smith is without sufficient information to form a belief as to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
46. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
Factual B acksround
A. Histo rv of the Pronertv and the Restrictive C ovenant
47. Smith is without sufficient information to form a belielas to the allegations set
5
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forth in this paragraph and therefore leaves Peruuose to its strict proofs.
48. The 1939 Indenture is a writing which speaks for itself.
49. The 1945 Indenture is a writing which speaks for itself.
50. The 1945 Indenture is a writing which speaks for itself.
51. The 1947 Indenture is a writing which speaks for itself.
52. The 1947 Indenture is a writing which speaks for itself.
B, Pennrose's Intent to Develorr the Property for Affordable Housing
53. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Peruuose to its strict proofs.
54. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
55. Denied that the Property is ideally suited for multifamily housing. By way of
further response, the Restrictive Covenant is a writing which speaks for itself.
56. Denied.
57. The allegations in this paragraph are legal conclusions to which no response is
required.
58. Denied.
59. Smith is without sufticient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Peruuose to its strict proofs.
60. Admitted.
6l . Denied.
6
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COUNT ONE
(Invalidation of Restrictive Covenant - Mount Laurel Doctrine and Public Policy)
62. Smith incorporates the responses to all ofthe foregoing paragraphs as ifthe same
were fully set forth at length herein.
63. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Peruuose to its strict proofs.
64. Denied.
65. Denied.
66. Denied.
67 . Denied.
WHEREFOR.E, Third-Party Defendant Russell Smith demands the entry of Judgment is
his favor and against Third-Party Defendant Pennrose, LLC, together with the dismissal ofthe
Third-Party Complaint, attomey's fees, costs and such other reliefthe Court should deem
equitable and just.
COUNT TWO
(Invalidation of Restrictive Covenant - Common Law)
68. Smith incorporates the responses to all ofthe foregoing paragraphs as ifthe same
were fully set lorth at length herein.
69. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
70. Denied.
71. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Peffrose to its strict proofs.
7
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72. Denied.
73. Denied.
'14. Denied.
75. Denied.
WHEREFORE, Third-Party Defendant Russell Smith demands the entry of Judgment is
his favor and against Third-Party Defendant Pennrose, LLC, together with the dismissal ofthe
Third-Party Complaint, attomey's fees, costs and such other reliefthe Court should deem
equitable and just.
COUNT THREE
(Invalidation of Restrictive Covenant - Invalid Neighborhood Scheme)
76. Smith incorporates the responses to all ofthe foregoing paragraphs as ifthe same
were fully set forlh at length herein.
77 . Smith is without sufficient information to form a belief as to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
78. Denied.
79. Denied.
80. Denied.
WHER-EFORE, Third-Parry Defendant Russell Smith demands the entry of Judgment is
his favor and against Third-Party Defendant Pennrose, LLC, together with the dismissal of the
Third-Party Complaint, attomey's fees, costs and such other reliefthe Court should deem
equitable and just.
8
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COUNT FOUR
(Declaratory Judgment)
81. Smith incorporates the responses to all ofthe foregoing paragraphs as if the same
were fully set forth at length herein.
82. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Pennrose to its strict proofs.
83. Denied.
84. Smith is without sufficient information to form a beliefas to the allegations set
forth in this paragraph and therefore leaves Penrrose to its strict proofs.
85. The allegations in this paragraph are legal conclusions to which no response is
required.
WHEREFORE, Third-Party Defendant Russell Smith demands the entry of Judgment is
his favor and against Third-Party Defendant Pennrose, LLC, together with the dismissal ofthe
Third-Party Complaint, attorney's fees, costs and such other reliefthe Court should deem
equitable and just.
BARON & BRENNAN, P.A.
Attomeys for Third-Party Defendant
Russell Smith
JEFFREY M. BRENNAN, ESQUIRE
Dated
SI'PARATE DEFENSES
1. The Third-Party Complaint fails to state a claim upon which reliefmay be
granted.
9
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2. The claims set forth in the Third-Party Complaint fail to articulate a valid cause of
action.
3. Pennrose's claims are barred by the doctrine ofunclean hands.
4. Pennrose's claims are barred by the doctrine ofwaiver.
5. Pennrose's claims are barred by the doctrine oflaches.
6. Pennrose's claims are barred by estoppel.
7. Pennrose lacks standing to bring this lawsuit.
8. Pennrose has failed to exhaust its administrative remedies.
9. The Restrictive Covenant at issue is a valid, enforceable encr.rmbrance against the
properly which Pennrose seeks to acquire.
10. The Restrictive Covenant prohibits the development of multi-family dwellings.
11. The Restrictive Covenant at issue does not prohibit affordable housing.
12. No evidence exists to suggest that the original draftsman ofthe Restrictive
Covenant at issue intended to prohibit affordable housing.
13. The March 16,2018 settlement agreement entered into between the Township of
Moorestown and Fair Share Housing Center (Exhibit D, Page 7) acknowledges that the property
which Pennrose seeks to acquire "has a clear title and is free of encumbrances which preclude
development of affordable housing."
14. It is possible to accomplish the purpose ofthe Restrictive Covenant at issue and
simultaneously construct affordable housing.
15. The Restrictive Covenant at issue does not result in urmecessary harm to the
servient estates.
16. The Restrictive Covenant at issue has not been abandoned.
r0
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17. The Restrictive Covenant at issue cr€ated and/or promotes a neighborhood
scheme.
18. Other, unencumbered properties exist in Moorestown Township which are more
appropriate for the development of multi-family dwellings including, but not limited to, the
Nagle tract which the March i6, 2018 settlement agreement between the Township of
Moorestown and Fair Share Housing Center (Exhibit D, Page l) notes "was purchased by the
municipality in 1988 for the construction ofa 100% affordable housing project."
19. Pennrose's claims are frivolous as per R. l:4-8 and N.J.S.A. 2A:15-59.1.
20. Smith reserves the right to assert any additional Separate Defenses which may
become known throughout the course of continuing investigation and on-going discovery.
BARON & BRENNAN, P.A.
Attomeys for Third-Party Defendant
Russell Smith
JEFFREY M. BRENNAN, ESQUIRE
Dated:
AMENDED COUNTEITCLAIM
Third-Party Defendant Russell Smith ("Smith"), by and through his undersigned
attomeys, and by way of Amended Counterclaim to the Third-Party Complaint filed by
Intervenor-Defendant/Third-Party Plaintiff Pennrose, LLC ("Penrrose"), says as follows:
1. A Restrictive Covenant encumbers the property located at 160 West Route 38,
Moorestown, New Jersey, which property is also designated as Block 4801, Lot 12 on the
Moorestown Township Tax Map (the "Property").
2. The Restrictive Covenant encumbering the Property includes the following
restrictions:
1i
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(a) The use and occupancy ofthe said premises shall be restricted
to farm and residential uses and purposes and uses and purposes
ordinarily comected with or relating to a farm and residence...
(c) No dwelling house shall be erected on any lot having an area of
less than one-half acre-
3. Pennrose seeks to purchase the Property for the purpose ofdeveloping multi
family dwellings thereon.
COUNT I
(Declaratory Judgment)
4. Smith incorporates all ofthe foregoing paragraphs by reference as ifthose
paragraphs were fully set forth at length herein.
5. An actual controversy exists between the parties regarding the scope, validity,
applicability and enforceability of the Restrictive Covenant.
WHEREFORE, Third-Party Defendant Russell Smith demands the entry ofjudgment in
his favor and against Third-Party Plaintiff Pennrose, LLC, for the following:
(a) An Order declaring that the Restrictive Covenant constitutes a valid encumbrance
against the property located at 160 West Route 38, Moorestown, New Jersey,
which property also designated as Block 4801, Lot 12 on the Moorestown
Township Tax Map;
(b) An Order declaring that the Restrictive Covenant prohibits the development of
multi-family dwellings on the Property; and
(c) Such other reliefthe Court should deem equitable andjust.
t2
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BARO , P.A.
Atto Party Defendant
a
Dated
Preview
BUR L 001147-18 05/30/2018 Pg 1 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 05/10/2018 12:24:52 PM Pg 1 of 13 Trans lD: 1CV2018824050 BARON & BRENNAN, P.A. Jeffrey I. Baron, Esquire Attomey I.D. No. 001451973 Jeffrey M. Brennan, Esquire Attomey LD. No. 015542002 STAFFoRDSHIRE PRoFESSIoNAL CENTER 1307 White Florse Road Building F- Suite 600 Voorhees, New Jersey 08043 Phone: 856-627-6000 Fax:. 856-627-4548 Attomeys for Third-Party Defendant Russell Smith IN THE MATTER OF THE SUPERIOR COURT OF NEW JERSEY APPLICATION OF THE TOWNSHIP BURLINGTON COUNTY OF MOORESTOWN, COTINTY OF LAW DIVISION BURLINGTON DOCKET NO. BUR-L-1 604.1 5 CIVIL ACTION PENNROSE, LLC, ANSWER TO THIR-D-PARTY Third-Party Plaintiff, COMPLAINT, SEPARATE DEFENSES AND AMENDED COUNTERCLAIM vs APC ASSOCIATES, LLC, et al., Third-Party Defendants. Third-Party Defendant Russell Smith ("Smith"), by and tkough his undersigned attomeys, and by way of Answer to the Third-Party Complaint filed by Intervenor- Defendant/Third-Party Plaintiff Pennrose, LLC ("Perurose"), says as follows: 1. Admitted that Pennrose has filed a Third-Party Complaint. The remaining allegations set forth in this paragraph are legal conclusions to which no response is required. 2. Admitted that Pennrose's Third-Party Complaint does not seek money damages. The remaining allegations set forth in this paragraph are legal conclusions to which no response BUR L 001147-18 05/30/2018 Pg 2 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 05/10/2018 1224.52 Pt\il Pg 2 of 13 Trans lD: 1CV2018824050 is required. The Parties 3. Smith is without sufEcient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 4. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 5. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 6. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 7. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 8. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 9. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 10. Smith is without sufficient information to form a belief as to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 11. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 12, Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 13. Smith is without sufficient information to form a beliefas to the allegations set 2 BUR L 001147-18 05/30/2018 Pg 3 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 0511012018 12.24.52 Pt\ilPg 3 of 13 Trans lD: 1CV2018824050 forth in this paragraph and therefore leaves Pennrose to its strict proofs. 14. Smith is without suffrcient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 15. Admitted. 16. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 17. Smith is without sufficient information to form a beliefas to the allegations set fo(h in this paragraph and therefore leaves Pennrose to its strict proofs. 18. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 19. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 20. Smith is without sufiicient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 21. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 22. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 23. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 24. Smith is without sufficient information to form a belief as to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 25. Smith is without sufficient information to form a beliefas to the allegations set J BUR L 001147-18 05/30/2018 Pg 4 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 0511012018 12:24:52 PN/ Pg 4 of 13 Trans lD: 1CV2018824050 forth in this paragraph and therefore leaves Pennrose to its strict proof's. 26. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Penruose to its strict proofs. 27. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 28. Smith is without sufficient information to form a beliefas to the allegations set lorth in this paragraph and therefore leaves Pennrose to its strict proofs. 29. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 30. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 31. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 32. Smith is without sufficient information to form a belief as to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 33. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Penrose to its strict proofs. 34. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 35. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 36. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 4 BUR L 001147-18 05/30/2018 Pg 5 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 OSl1Ol2O18 12:24:52 PN/ Pg 5of l3Trans lD: 1CV2018824050 37. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 38. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 39. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 40. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 41. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pemrose to its strict proofs. 42. Smith is without sufficient information to form a belief as to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 43. Smith is without sufficient information to form a beliefas to the allegations set fo(h in this paragraph and therefore leaves Pennrose to its strict proofs. 44. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Penrrose to its strict proofs. 45. Smith is without sufficient information to form a belief as to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 46. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. Factual B acksround A. Histo rv of the Pronertv and the Restrictive C ovenant 47. Smith is without sufficient information to form a belielas to the allegations set 5 BUR L 001147-18 05/30/2018 Pg 6 of 17 Trans ID: LCV20181038372 BUR-L-oo1604-15 0511012018 12:24:52 PIV Pg 6 of 13 Trans lD: 1CV2018824050 forth in this paragraph and therefore leaves Peruuose to its strict proofs. 48. The 1939 Indenture is a writing which speaks for itself. 49. The 1945 Indenture is a writing which speaks for itself. 50. The 1945 Indenture is a writing which speaks for itself. 51. The 1947 Indenture is a writing which speaks for itself. 52. The 1947 Indenture is a writing which speaks for itself. B, Pennrose's Intent to Develorr the Property for Affordable Housing 53. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Peruuose to its strict proofs. 54. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 55. Denied that the Property is ideally suited for multifamily housing. By way of further response, the Restrictive Covenant is a writing which speaks for itself. 56. Denied. 57. The allegations in this paragraph are legal conclusions to which no response is required. 58. Denied. 59. Smith is without sufticient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Peruuose to its strict proofs. 60. Admitted. 6l . Denied. 6 BUR L 001147-18 05/30/2018 Pg 7 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 osl1ol2118 12.24.52 PM PgTof 13 Trans lD: 1CV2018824050 COUNT ONE (Invalidation of Restrictive Covenant - Mount Laurel Doctrine and Public Policy) 62. Smith incorporates the responses to all ofthe foregoing paragraphs as ifthe same were fully set forth at length herein. 63. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Peruuose to its strict proofs. 64. Denied. 65. Denied. 66. Denied. 67 . Denied. WHEREFOR.E, Third-Party Defendant Russell Smith demands the entry of Judgment is his favor and against Third-Party Defendant Pennrose, LLC, together with the dismissal ofthe Third-Party Complaint, attomey's fees, costs and such other reliefthe Court should deem equitable and just. COUNT TWO (Invalidation of Restrictive Covenant - Common Law) 68. Smith incorporates the responses to all ofthe foregoing paragraphs as ifthe same were fully set lorth at length herein. 69. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 70. Denied. 71. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Peffrose to its strict proofs. 7 BUR L 001147-18 05/30/2018 Pg 8 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 05/10/2018 12:24:52 PNI Pg 8 of 13 Trans lD: 1CV2018824050 72. Denied. 73. Denied. '14. Denied. 75. Denied. WHEREFORE, Third-Party Defendant Russell Smith demands the entry of Judgment is his favor and against Third-Party Defendant Pennrose, LLC, together with the dismissal ofthe Third-Party Complaint, attomey's fees, costs and such other reliefthe Court should deem equitable and just. COUNT THREE (Invalidation of Restrictive Covenant - Invalid Neighborhood Scheme) 76. Smith incorporates the responses to all ofthe foregoing paragraphs as ifthe same were fully set forlh at length herein. 77 . Smith is without sufficient information to form a belief as to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 78. Denied. 79. Denied. 80. Denied. WHER-EFORE, Third-Parry Defendant Russell Smith demands the entry of Judgment is his favor and against Third-Party Defendant Pennrose, LLC, together with the dismissal of the Third-Party Complaint, attomey's fees, costs and such other reliefthe Court should deem equitable and just. 8 BUR L 001147-18 05/30/2018 Pg 9 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 05/10/2018 12:24:52 PN/ Pg I of 13 Trans lD: 1CV2018824050 COUNT FOUR (Declaratory Judgment) 81. Smith incorporates the responses to all ofthe foregoing paragraphs as if the same were fully set forth at length herein. 82. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Pennrose to its strict proofs. 83. Denied. 84. Smith is without sufficient information to form a beliefas to the allegations set forth in this paragraph and therefore leaves Penrrose to its strict proofs. 85. The allegations in this paragraph are legal conclusions to which no response is required. WHEREFORE, Third-Party Defendant Russell Smith demands the entry of Judgment is his favor and against Third-Party Defendant Pennrose, LLC, together with the dismissal ofthe Third-Party Complaint, attorney's fees, costs and such other reliefthe Court should deem equitable and just. BARON & BRENNAN, P.A. Attomeys for Third-Party Defendant Russell Smith JEFFREY M. BRENNAN, ESQUIRE Dated SI'PARATE DEFENSES 1. The Third-Party Complaint fails to state a claim upon which reliefmay be granted. 9 BUR L 001147-18 05/30/2018 Pg 10 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 05/10/2018 12:24:52 PIr/ Pg '10 of 13 Trans lD: 1CV2018824050 2. The claims set forth in the Third-Party Complaint fail to articulate a valid cause of action. 3. Pennrose's claims are barred by the doctrine ofunclean hands. 4. Pennrose's claims are barred by the doctrine ofwaiver. 5. Pennrose's claims are barred by the doctrine oflaches. 6. Pennrose's claims are barred by estoppel. 7. Pennrose lacks standing to bring this lawsuit. 8. Pennrose has failed to exhaust its administrative remedies. 9. The Restrictive Covenant at issue is a valid, enforceable encr.rmbrance against the properly which Pennrose seeks to acquire. 10. The Restrictive Covenant prohibits the development of multi-family dwellings. 11. The Restrictive Covenant at issue does not prohibit affordable housing. 12. No evidence exists to suggest that the original draftsman ofthe Restrictive Covenant at issue intended to prohibit affordable housing. 13. The March 16,2018 settlement agreement entered into between the Township of Moorestown and Fair Share Housing Center (Exhibit D, Page 7) acknowledges that the property which Pennrose seeks to acquire "has a clear title and is free of encumbrances which preclude development of affordable housing." 14. It is possible to accomplish the purpose ofthe Restrictive Covenant at issue and simultaneously construct affordable housing. 15. The Restrictive Covenant at issue does not result in urmecessary harm to the servient estates. 16. The Restrictive Covenant at issue has not been abandoned. r0 BUR L 001147-18 05/30/2018 Pg 11 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 05/'10/20'18 12:2452 PM Pg 11 of 13 Trans lD: LCV2018824050 17. The Restrictive Covenant at issue cr€ated and/or promotes a neighborhood scheme. 18. Other, unencumbered properties exist in Moorestown Township which are more appropriate for the development of multi-family dwellings including, but not limited to, the Nagle tract which the March i6, 2018 settlement agreement between the Township of Moorestown and Fair Share Housing Center (Exhibit D, Page l) notes "was purchased by the municipality in 1988 for the construction ofa 100% affordable housing project." 19. Pennrose's claims are frivolous as per R. l:4-8 and N.J.S.A. 2A:15-59.1. 20. Smith reserves the right to assert any additional Separate Defenses which may become known throughout the course of continuing investigation and on-going discovery. BARON & BRENNAN, P.A. Attomeys for Third-Party Defendant Russell Smith JEFFREY M. BRENNAN, ESQUIRE Dated: AMENDED COUNTEITCLAIM Third-Party Defendant Russell Smith ("Smith"), by and through his undersigned attomeys, and by way of Amended Counterclaim to the Third-Party Complaint filed by Intervenor-Defendant/Third-Party Plaintiff Pennrose, LLC ("Penrrose"), says as follows: 1. A Restrictive Covenant encumbers the property located at 160 West Route 38, Moorestown, New Jersey, which property is also designated as Block 4801, Lot 12 on the Moorestown Township Tax Map (the "Property"). 2. The Restrictive Covenant encumbering the Property includes the following restrictions: 1i BUR L 001147-18 05/30/2018 Pg 12 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 0511012018 12:24:52 PM Pg '12 of 13 Trans lD: 1CV2018824050 (a) The use and occupancy ofthe said premises shall be restricted to farm and residential uses and purposes and uses and purposes ordinarily comected with or relating to a farm and residence... (c) No dwelling house shall be erected on any lot having an area of less than one-half acre- 3. Pennrose seeks to purchase the Property for the purpose ofdeveloping multi family dwellings thereon. COUNT I (Declaratory Judgment) 4. Smith incorporates all ofthe foregoing paragraphs by reference as ifthose paragraphs were fully set forth at length herein. 5. An actual controversy exists between the parties regarding the scope, validity, applicability and enforceability of the Restrictive Covenant. WHEREFORE, Third-Party Defendant Russell Smith demands the entry ofjudgment in his favor and against Third-Party Plaintiff Pennrose, LLC, for the following: (a) An Order declaring that the Restrictive Covenant constitutes a valid encumbrance against the property located at 160 West Route 38, Moorestown, New Jersey, which property also designated as Block 4801, Lot 12 on the Moorestown Township Tax Map; (b) An Order declaring that the Restrictive Covenant prohibits the development of multi-family dwellings on the Property; and (c) Such other reliefthe Court should deem equitable andjust. t2 BUR L 001147-18 05/30/2018 Pg 13 of 17 Trans ID: LCV20181038372 BUR-L-001604-15 05/10/2018 12:24:52 PM Pg 13 of 13 Trans lD: 1CV2018824050 BARO , P.A. Atto Party Defendant a Dated