Motion for Case Management in Pennrose Llc Vs Apc Associates Llc| Trellis.Law

On May 30, 2018 a Letter,Correspondence 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.

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BUR L 001147-18 09/13/2019 Pg 1 of 173 Trans ID: LCV20191667356

New Jersey Judiciary
Superior Court - Appellate Division
NOTICE OF MOTION

Russell Smith, Pro se
PO Box 597
Moorestown, NJ 08057
856-581-0704
r@russ-smith,com

I | Superior Court of New Jersey
I
/PENNROSI LLC | Appellate Division Docket Number
|
lA. com - a
i v.
tl MOTION FOR LEAVE TO
APC ASSOCIATES, LLC; KEENAN BUILDE RS, LLC; PPEAL
‘GIOVANNA F ERRIERA and ANDRE OLIVIE RA:
“CHARLES FURLONG andMARGOVFURLONG, SUSAN M.
(STEVENS: JOHN 8, RADOMSKI and CAROL L.
*RADOMSKI; SCOTT G. KERN and MARZ E. KERN;
;ANNE SMITE TONSAJ. SIGMOND and DARYL T.
!SIGMOND: DIANE SPEER and THEODORE J. SPEER, JR.
RUSSELL SMITH 4 EPHCAVALIERL, JOSE A.
COUTINHO and APARECIDA S. COUTINHO; JEFFREY
D. HERB and CHRISTINE I HERB; THOMAS B
MITCHE RECON INVESTMENT GROUP, LLC: MUIR
A.MCMA ELIZABETH FALCO: DEL 1, SCHIMMET
ind KATHERINE ©. SC IMM ee ING. BLYLER
and DORIS G. BLYLER: » MOL INO! and
CHAKRYA K, MOLINOFT BECCA CAS ALANOS
and DIEGO CAST LANC [SYED M. AHMED and
SYEDAE. AHMED: HOOVER QUINTERO-GARCIA,
JOHN M
PFROMMER; ROBT and KAREN WOZNICA, DANIEL
HANKS and VA HANKS: GEORGE PREUDENBERG
DAVID THERCOCK: EDWARD MULKA and WONGSDUAN
MULKA] RONNIE M, TARCLICHE UMUR SELEK: VITO
BRASILES RICHARD 1 SMEFTELand PAULET SMITII

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 856-581-0704 r@russ smithcom
BUR L 001147-18 09/13/2019 Pg 2 of 173 Trans ID :LCV20191667356

_—— — . _
JAMES E. WEIST: ROBERT GORE and ERIKA GORE;
GEORGE C. GREATREX JR. and CHRISTINE GREATREX;
CARL MULLER and CAROL MULLER; EUGENE M.
FLACCHE; MING T. SHIH and HUL Y. SHIH; JEFFREY B.
CANFIELD and ROSEANNE M, CANFIELD; JOANNE
K. WELCH,

PLEASE TAKE NOTICE that the undersigned hereby moves before the Superior
Court of New Jersey, Appellate Division, for an Order granting the above-listed
relief(s). In support of this motion, I shall rely on the attached:

Brief and Appendix

RESPONDING PARTIES: Per Rule 2:8-1, answers to this motion should be filed with the
Clerk of the Appellate Division within 10 days of your receipt of this motion unless otherwise
directed by the Clerk.

Trial court #: BUR-L-1147-18
Trial Court Disposition Date: 8/23/2019
Category: LAW-CIVIL PART
Type: Civil
County: Burlington
Trial Court Judge Name” Paula T. Dow

Osan th
For: Russell Smith, pro se

9{ 11/019

Russ Smith, Pro $c, PO Box 597, Moorestown, NJ 08057 856-581-0704 r@russ-smith.com
BUR L 001147-18 09/13/2019 Pg 3 of 173 Trans ID: LCV20191667356

New Jersey Judiciary
Superior Court-Appeliate Division
er Court Transcript Request (r. 2:5-3)
Transcript order is for: (j Non-Appeat > File with: - Select County-

Or
i Appeal” —> File with: Appellate Division Clerk's Office, Transcript Unit
Hughes Justice Complex, P.O. Box 968
Trenton, NJ 08625-0968
Appeal-Trans.Mailbox@njcourts.gov (609) 376-3040

Type of Service: ‘See attached cost estimates and transcript ordering instructions.
I Standard (30 Days) (1 Expedited (7 Days) (1 Daily (Next Business Day)
iPlaintiff(s) Trial Court Docket/Indictment #
Pennrose, LLC. BURL-L1147-18

Defendant(s) County/Court
APC Associates, LLC et als Burlington

Requesting Party ((] Attorney (For non-appeals only) I Self-Represented Litigant
Name Email Address Phone Number
Russell Smith t@russ-smith.com 856-581-0704
Address Name of Law firm {if applicable)
PO Box 597
City State Zip
Moorestown NJ 08052
Date(s) of Proceeding Type(s) of Proceeding (e.g. trial, sentencing, motion, etc.) Name of Judge(s)

August 2, 2019 hearing _Paula T. Dow

ener a

on - ~ cen

es oe

wee

“NOTE: Attornoys may only use this papor form for non-appoal transcript requoste. To ordor (ranscripts. for appeal (for
example, transcripts not already in attorney J ossession), atlornays must complete a system-genoraled transcript request fonn
through the eCourts jallate system. Sab Jotice to the Bar, Mandatory Appoltate Division Eluctrynic Filing for All Case Typos

sal
(September 26, 2017

Mh ignature of Requesting Party
9 fio f Dateeat,
You may requost a pacticular transcript agoncy if the transcript was nol previously ordered and prepared. Submit your daposit for
transcript(s) directly to the transcription agency or court reporter who will be proparing your traascript(s)

[ev sed Forin Prownalyueted by 0 521 82019 Notice tothe fan, ON HISD Conity TrissenptOtfices Bip oss nycours pay dooms TAK tronsceqil olfices pal
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Estimated Costs for Transcript

THIS CHART 1S FOR ESTIMATION PURPOSES ONLY
Only the transcript agency can provide you with the actual cost of your transcript

NOTE: An order granting relief to proceed as an indigent does not entitle you to transcripts at public
expense. Transcripts at public expense are typically granted only in criminal cases where the defendant
qualifies for that relief. For additional questions, please contact your case manager,
DO NOT EXPECT TO RECEIVE TRANSCRIPTS AT PUBLIC EXPENSE FOR A CIVIL OR FAMILY APPEAL

STANDARD EXPEDITED DAILY
{30 Calendar Days) (7 Calendar Days) {Next Business Day)

Original Only $4.29/page $6.44/page $8.58/page
Estinslede
$200 $300
cost Up to 1 Hour $250 $375 $500
Up to 2 Hours $500 $750 $1000
Up to % Day (3 hours) $775 $1150 $1500
ull Day (6 hours) $1550 $2300 $3100

Please Note.

Additional copies are no longer required per rule relaxation of R, 2:5-3 dated October 10, 2018. However, ifa
litigant chooses to do so, additional copies may be ordered at the following rates
o
Type of | Transcript to Be Fee for
Service Provided Within Copy of Transcript
“Standard | 30 calendar days | $0.72 per page

“Expedited — 7 to 10 calendar days $1.08 per page

Daily next calen jar day $1.44 per page
~ ~

The above calculations are based on the current page rates (as Set by NJ Statute 28:7-4) which are
effective through July 1, 2020.
An agency will not begin work on your transcript until they receive the estimated cost from the ordering
party.
The cost for a transcript is based upon the estimated number of pages that will comprise the final
transcript. A refund or balance due will be settied upon completion of a transcript (R. 2:5-3(d)).

Reavieaad 12018 CN $2188
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New Jersey Judiciary
Superior Court - Appellate Division
CERTIFICATION OF SERVICE

Russell Smith, Pro se
PO Box 597
Moorestown, NJ 08057
856-581-0704
r@russ-smith,com

| Superior Court of New Jersey |
/PENNROSE, LLC _ Appellate Division Docket Number I
A-

v. |
CERTIFICATION OF SERVICE.
“APC ASSOCIATES, LLC. KEENAN BUILDERS, LLC,
|GIOVANNA FERRIERA and ANDRE OLIVERIERA; | NOTICE OF LENGTHY
i
| CHARLES FURLONG andMARGOFURLONG: SUSAN M, | APPENDIX
ISTEV , JOHN S. RADOMSKI and CARO!
|RADOMSKI; SCOTT G, KERN and MARIEI LERN;
VANNETTE L. SMITIE TONIA J. SIGMOND and DARYLT.
i SIGMOND; DIANE ER and THEODORE SPEER. IR.
‘RUSSELL SMITH JOS PHECAVALIERI, JOS
-COUTINHO and APAR DAS. COUTINITO: J FREY
D1 RB and CHRISTIN HERB, THOMAS B.
MITCHELL; RECON INVE MENT GROUP, LLC, MUIR
A.MCMATIE ELIZABETEEFALCO; LEE EL SCHIMMEL
cand KATHERINE O. SCHIMMIEL. WARREN G. BLYLER
and DORIS G. BLYLER: JEF REY £., MOLINOFF and
CHAKRYA K. MOLINOFE ‘CA CASTELLANOS
and DINGO CASTELLANOSI SYED M. AHMED and
SYEDA FE, AUMED: HOOVER QUINTERO-GARCIA;
JOHN M.
PFROMMER: ROBT and KAREN WOZNICA, DANIEL.
HANKS and EVA HANKS; iHORGE PFREUDENBERG:
DAVID HERCOCK, DWARD MULKA and WONGSDUAN
MULKAIL RONNIE M. TARCTIICLIE:, UMUR § LEK; VITO
BRASILE: RICHARD J. SMITE and PAULEV TE SMITE

Rass Smith, Pro Se, PO Box 597, Moorestown, NJE08057 856-581-0704 r@russ-sinith.com
BUR L 001147-18 09/13/2019 Pg 6 of 173 Trans ID: LCV20191667356

.
JAMES E, WEIST; ROBERT GORE and ERIKA GORE;
GEORGE C. GREATREX JR. and CHRISTINE GREATREX;
CARL MULLER and CAROL MULLER; EUGENE M.
FLACCHE; MING T. SHIH and HUI Y. SHIH; JEFFREY B.
CANFIELD and ROSEANNE M. CANFIELD; JOANNE
LK. WELCH,

The Appendix in this matter is lengthy and too large to distribute hard copies. The parties in
the case have agreements to distribute pleadings via email and have done so throughout the
case. Five hard copies are being supplied to the clerk and 2 hard copies are being supplied to
Judge Dow and Nina M. Thomas with the Appendix in separate volumes from the pleadings.
All other parties will receive an electronic service.

The following documents were sent September 11, 2019:

Notice of Motion
Brief and Appendix
Certification of Service
Court Transcript Request

To:

Appellate Court Clerk via overnight mail — 5 copies
Judge Paula T. Dow — 2 copies via Priority Mail
Nina M. Thomas — 2 copies via Certified mail

Pennrose — Meryl Gochar - 2 copies (except for appendix) via priority mail
Moorestown - 2 copies (except for appendix) via hand delivery

All documents via email to:

Meryl A.G. Gonchar - mgonchar@sillscummis.com
Joseph B. Fiorenz. - jfiorenzo@sillscummis.com
Victor J. Herlinsky, Jr. - vherlinsky@sillscummis.com
Michael $. Garucei - mearucci@sillscummis.com
Rick Perr - rperr@finemanlawlirm.com

Mark Carusiflo - mark@carusillolaw.com
Doug Heinold - dheinold@rchlawnj.com

Russ Smith, Pro Se, PO. Box 597, Moorestown, NE 08057 856-581-0704 r@russ-smith.cont
BUR L 001147-18 09/13/2019 Pg 7 of 173 Trans ID: LCV20191667356

Daryl Fox-Tonia - ztonia@comcast.net
Sigmund Tonia - ztonia@comcast.net
George Freudenberg - george@freudenbergfamily.com
David Hercock mlukixx@hotmail.com
Edward Mulka emulka@jafatech.com
Wongsduan Mulka emulka@jafatech.com
Umur Selek selekumur@gmail.com
Ronnie M Tarchichi ronnie.tarchichi@pennsauken.net

Kevin Walsh, Fair Share Housing Center kevinwalsh@fairsharehousing.org

Michael Edwards, Moorestown Township Affordable Housing counsel mje@surenian.com
Kevin Aberant, Moorestown Township solicitor aberant@tesalaw.com
Patricia Hunt, Moorestown Clerk phunt@moorestown.nj.us
Peter Thorndike, Moorestown planning Board solicitor pete@ryanandthorndike.com

Trial court # BUR-L-1147-18
Trial Court Disposition Date: 8/23/2019
Category: LAW-CIVIL PART
Type: Civil
County: Burlington
Trial Court Judge Name” Paula T. Dow

For: Russell Smith, pro se

Respectfully submitted,

Russ Smith, pro se
September 11, 2019

}

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 856-581-0704 r@russ-smith.com
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New Jersey Judiciary
Superior Court - Appellate Division

Brief in Support of Motion

Russell Smith, Pro se
PO Box 597
Moorestown, NJ 08057
856-581-0704
r@russ-smith.com

| Superior Court of New Jersey
[PPNNROST: LLC
MOTION FOR LEAVE TO
v, APPEAL

APC ASSOCI S, LLC; KEENAN BUILDERS, LLC: Superior Court of New Jersey
:GIOVANNA | RRIERA and ANDRE OLIVERIERA; Appellate Division
“CHARLES FURLONG andMARGOPURLONG, SUSAN M. |L
STEVENS; JOHN S$, RADOMSKI and CAROL 1. | Motion No.: _
|
‘RADO Kl; SCOTT G. KERN and MARIE E, KERN:
ANNETTE L. SMEPIE TONIA J, SIGMOND and DARYI.T. Civil Action
SIGMOND; DIANE SPEER and THEODORE J. SPEER, IRS
RUSSELL SMITH JOSEPHCAVALIE! 1, JOSTEA | On Appeal from: Interlocutory Order
{ of the Law Division, Burlington
COUTINITO and APAI IDA S. COUTINIIC FEREY
2D. HERB and CHRISTI RB. THOMAS Counly
MITCHELL: RI ON INV MENT GROUP, LEC: MUIR i
A.MCMA IZABBTH PALCO: LEE LL SCLUMMEL ‘Docket No, Below: BUR-L-1147-18
and KATHERINE ©. SCHIMMEL: WARREN G, BLYLER
and DORIS G, BLYLER: PREY LL, MOLINOFEF and Sat Below: Hon, Paula Y. Dow
CHAKRYA K. MOLINO REBECCA CASTELLANOS
and DIEGO CASTELLANOSI SYED M. ATLIMED and
SYEDA BE. AHMED: HOOVER QUINTERO-GARCIA:
JOLIN M,
PEROMMER: ROBT and KAREN WOZNICA; DANIEL,
HANKS and EVA HANKS; GEORGE FREUDENBERG
DAVID HERCOCK; EDWARD MULKA and WONGSDUAN
MULKAL RONNIE M. TARCTIICHE UMUR SEL K: VITO

Russ Smith, Pro Se, PO Box 597, Moorestown, Nd 08057 856-581-0704 r@russ-smith.com
BUR L 001147-18 09/13/2019 Pg 9 of 173 Trans ID: LCV20191667356

en ———

| BRASILE: RICHAJ. SMITH
RD and PAULETTE SMITH;
JAMES E. WEIST; ROBERT GORE and ERIKA GORE;
GEORGE C. GREATREX JR. and CHRISTINE GREATREX;
CARL MULLER and CAROL MULLER; EUGENE M.
FLACCHE; MING T. SHIH and HUI Y. SHIH; JEFFREY B.
CANFIELD and ROSEANNE M. CANFIELD; JOANNE
.. WELCH, -

Brief of Russell Smith
in support of
Motion for Leave to Appeal

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 456-581-0704 r@russ-smith.com
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Table of Contents

TABLE OF ORDERS APPEALED FROM IV

PRELIMINARY STATEMENT seteeenes.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
ARGUMENT

A. Smith’s motion for leave should be granted because the interest
of justice demands novel and important legal issues with private
property and Constitutional issues should be decided promptly .

B. Smith should not be entangled in a dispute between an
affordable housing developer and a municipality ....

CONCLUSION seeeavecnnesueseneeesnecneesseeseenes seenseanearens 4

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 856-581-0704 r@russ-smith.com

MH
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Table of Authorities

Arena v. Saphier, 201 N.J. Super. 79 (App. Div. 1985) santennes: 3

Bd. of Educ. v. Caffiero, 173 N.J. Super. 204 (App. Div. 1980), aff’d, 86 N.J. 308 (1981) 3

Brundage v. Estate of Carambio, 195 N.J. 575 (2008) deesetareneaeasaaeeseesseeeeeesosoonneree

RULES OF COURT

R. 2:2-4 eee!

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 856-581-0704 r@russ-smith.com
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Table of Orders Appealed From

1. Order denying adding Moorestown Township a party to the case and covering the case
to a condemnation proceeding. August 23, 2019. pp. la—8a.

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 856-581-0704 r@russ-smith.com
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Preliminary Statement

This matter arises from Moorestown Township (“Moorestown”) filing a lawsuit to seek
court approval of their affordable housing requirements under the Mount Laurel doctrine
(Builder’s Remedy Lawsuit”)(Case BURL-1604-15) for which Pennrose, LLC (“Pennrose”)
filed as intervenor (2a — 6a). Moorestown then entered into settlement agreement with the Fair
Share Housing Center (“FSHC Settlement Agreement”) (9a ~ 20a) that included a provision to
file suit against numerous properties in order to build a 76-unit affordable housing apartment
building (“Pennrose Project”). Russell Smith’s (“Smith”) property was named a third-party

defendant in Moorestown’s Builder’s remedy suit via the Pennrose Third-Party Complaint (34a
~ 47a). The Pennrose Third-Party Complaint was severed from the Builder’s Remedy Lawsuit
and is now case BURL-L-1147-18(G1a — 62a). Moorestown is not currently party to the

severed case,
Smith asserts he would not be defendant but for Moorestown entering into the FSHC
Settlement Agreement and authorizing Pennrose to file the suit against him. Moorestown

stands to substantially benefit at the expense of Smith should the restrictive covenants be
removed from the Smith property by settling their Builder’s Remedy lawsuit. Smith asserts
counts 1, 2 and 4 of the Pennrose Complaint is effectively a condemnation proceeding by
Moorestown based on public policy rather than a lawsuit between private parties based ona
private dispute, (85a - 90a, 129a ~ 132a, 151a).
Moorestown now asserts they are removing the Penrose project from their affordable
housing plans (4a — Ga, 115a - 1174). However, since Moorestown is not a party to the case

Pennrose is continuing to litigate the matter claiming Moorestown still needs the Pennrose
Project to satisfy a public policy need. Smith is prejudiced by these actions and Smith now

bears the burden of fighting a legal battle between Moorestown and Pennrose. Pennrose has a

pending appeal to the Moorestown Affordable housing plan FSHC Settlement Agreement
where they claim the Pennrase project was “unjustifiable removed” from the FSHC Settlement

Russ Smith, Pro Se, PO Box 597, Moorestown, Nd 08057 856-581-0704 raoruss-smith,com
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Agreement and they seek to have it reinstated (149a).
Procedural History and Statement of Facts'

Moorestown filed their Builder’s Remedy Lawsuit in 2015, Pennrose became an
intervenor in Jaunary 2019. Moorestown then entered into the FSHC Settlement Agreement
(9a - 20a) and the Third-Party Complain(34a — 60a) was filed against Smith in March 2018.
The Pennrose Third-Party Complained was severed in May 2018 (61a - 62a). Various
summary judgment motions were filed and denied (78a - 81a) and the Court issued a
management order which set dates for expert witness rebuttal, dispositive motions, and the trial
(82a — 83a).
On July 1, 2019 Smith filed a motion to join Moorestown and have the case converted to
a condemnation proceeding (84a — 147a,). The order being appealed was issued August 23,
2019. Smith filed a reconsider request in a letter on September 1, 2019 (150a - 153a)

ARGUMENT

SMITH’S MOTION FOR LEAVE SHOULD BE GRANTED BECAUSE THE
INTEREST OF JUSTICE DEMANDS NOVEL AND IMPORTANT LEGAL
ISSUES WITH PRIVATE PROPERTY AND CONSTITUTIONAL ISSUES
SHOULD BE DECIDED PROMPTLY AND SMITH SHOULD NOT BE
ENTANGLED IN A DISPUTE BETWEEN AN AFFORDABLE HOUSING
DEVELOPER AND A MUNICIPALITY

A. Smith’s motion for leave should be granted because the interest of justice
demands novel and important legal issues with private property and Constitutional

1 The Procedural History and Statement of Facts are linked and are therefore recited together for
brevity and clarity

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 856-581-0704 r@russ-smith.cont
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issues should be decided promptly.
R. 2:2-4 states in pertinent part: “[TJhe Appellate Division may grant leave to appeal, in
the interest of justice, from an interlocutory order of a court...” While the Appellate Division
enjoys considerable discretion to decide whether the interest of justice standard has been met,
see Brundage v. Estate of Carambio, 195 N.J. 575, 599-600 (2008), this Court has granted leave
to review orders relating to novel questions of law, see, e.g., Arena v, Saphier, 201 N.J. Super.
79, 81 (App. Div. 1985), and issues of constitutional magnitude, see, e.g., Bd. of Educ. v.
Caffiero, 173 N.J. Super. 204, 206-08 (App. Div. 1980), aff’d, 86 N.J. 308 (1981).
This case raises novel questions of law with constitutional magnitude because they bear
directly on whether a Pennsylvania Corporation can claim authority to pursue public policy
issues on new Jersey to sue private residents of New Jersey. In this case the transfer would
benefit the municipality by satisfying affordable housing requirements under the Mount Laurel
doctrine.
Moorestown tried to sidestep the condemnation laws back in 2018 and decided to
change direction in 2019. However, Moorestown does not deny they caused the lawsuit and
the expenses to Smith. Moorestown argues they no longer wants Co pursue the Pennrose
project moving forward. Moorestown did not address whether authorizing the lawsuit in the
2018 FSHC Settlement Agreements was effectively a condemnation proceeding (115a — 117a).
Further, now that Pennrose has filed an appeal of the removal of the Pennrose Project
from the Moorestown Affordable Housing plan it cannot be stated for certain that Moorestown
will permanently remove the Pennrose project from ail their Affordable Housing plans (149a).

B. Smith should not be entangled in a dispute between an affordable housing
developer and a municipality
His a miscarriage of justice to entangle Smith ina lawsuit on these is es which is
effectively a dispute between Pennrase and Moorestown and delay this appeal. Under the case

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 856-581-0704 r@russ-smith.com
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management order Smith must prepare a defense to the Pennrose public policy claims and
related expert(s) before a dispositive motion can be filed (82a — 83a). This is in spite of
Moorestown’s assertion they no longer need the restrictive Covenants on the Smith property
removed on the basis of public policy.
Whether Moorestown needs the restrictive convents removed is the subject of the appeal
in Moorestown’s Builder’s Remedy lawsuit (149a).. Smith has already spent a significant
percentage of the value of his home in defending this matter (93a) and Smith’s home should not
be depleted further because of the Pennrose-Moorestown dispute.

Conclusion
Whether Moorestown now wants to remove the Pennrose Project the FSHC Settlement
Agreement now in 2019 is irrelevant.
Smith should be granted leave at this time because delaying the issues will prejudice
Smith and force him to expend resources in litigating a dispute between Pennrose and
Moorestown.

Whether Moorestown should be made a party to this case based on the March 2018
FSHC Settlement Agreement and whether the matter should be converted to a condemnation
proceeding is an important and novel legal issue that needs to be addressed promptly.

Respectfully submitted,

a
Russ
Resell
Smith, pro se
September 10, 2019

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 856-581-0704 r@russ-smith.com
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New Jersey Judiciary
Superior Court - Appellate Division

Appendix in Support of Motion

Russell Smith, Pro se
PO Box S97
Moorestown, NJ 08057
856-581-0704
r@russ-smith.com

i
[Superior Court of New Jersey
| PENNROSE, LLC |
i
MOTION FOR LEAVE TO
i |
v. i
I APPEAL
I

‘APC ASSOCIATES, LLC; KEENAN BUILDERS, LLC \ Superior Court of New Jersey
GIOVANNA FERRIERA and ANDRE OLIVERIERA Appellate Division
CHARLES FURLONG andMARGOFURLONG; SUSAN M
|
1
STEVENS: JOLIN S, RADOMSKI and CAROL L, Motion No
RADO SKI, SCOT G. KERN and MARIE E. KERN:
SANNETTE J SMITE TONIAJ. SIGMOND and DARYL 1 Civil Action
SIGMONI, DIANI! SI ER and THEODORE SPEER IR
RUSSELL SMITH JOS PHCAVALIERL, JOSE A i On Appeal from: Interlocutory Order
COUTFINETO and APAI CIDAS, COUTINHO; JEFFREY of the Law Division, Burlington
1, HERB and CHRISTIN HERB; THOMAS 1B County
MITCHEL! RECON INV MENT GROUP, LLC: MUIR
A. MCMA LIZABETH FALCO: LEE HL. SCHHIMMEL Docket No. Below: BUR-L-1147-18
and KATHERINE O, SCTIIMM WARREN G. BLYLER
and DORIS G. BLYLER Ri 1 MOLINOFF and Sat Below Hon. Paula7. Dow
CHAKRYA K. MOLINO RI CA CAST LLANOS
and DIEGO CAST LLANOSI SYED M, ALIME and
SYEDA EF. AHMED; HOOVER QUINTERO-GARCIA
JOLINM
PFROMMER; ROBT and KAREN WOZNICA, DANIEE
HANKS and EVA HANKS: GEORGE PREUDENBERG
DAVID HERCOCK; EDWARD MULKA and WONGSDUAN
MULKAL RONNIE M. TARCLUCTIE UMUR SELER: VITO

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 856-581-0704 r@russ-smith,com
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—_ —_ — —
BRASILE: RICHARD J. SMITH and PAULETTE SMIT
JAMES E. WEIST; ROBERT GORE and ERIKA GORE;
GEORGE C. GREATREX JR. and CHRISTINE GREATREX;
CARL MULLER and CAROL MULLER; EUGENE M.
FLACCHE; MING T. SHIH and HUT Y. SHIH; JEFFREY B.
CANFIELD and ROSEANNE M. CANFIELD; JOANNE
|
K, WELCH, |

Appendix of Russell Smith
in support of
Motion for Leave to Appeal

(Pages 1a to 154a)

Index to Appendix

i Order denying adding Moorestown Township a party to the case and covering the case
to a condemnation proceeding. August 23, 2019. pp. la— 8a.

Settlement agreement between Moorestown Township and Fair Share Housing Center.
And relevant portions of the appendix. March 16, 2018 pp. 9a — 20a.

First Amended Answer and Third-Party Complaint of Pennrose, LLC filed in
Moorestown Township's Mount Laurel doctrine builder's remedy lawsuit BURL-L-
1604-15. March 5, 2018 pp. 21a—- 60a.

Order Severing Pennrose. LLC's Third-Party Complaint. May 30, 2018, pp. Gla — G2a.

c
Russell Smith’s Answer to Third-Party Complaint, Separate Defenses, and Amended
Counterclaim. May 10, 2018, pp. 63a — 75a.

6. Pennrose, LLCG’s Answer to Amended Counterclaim Filed by Russell Smith, June 14,
2018. pp. 76a
~ 77a.

Order Denying Motions for Summary Judgment. April 12, 2019. pp. 78a = 79a.

8 Order Denying Plaintiff's Motion for Summary Judgment Without Prejudice, June 27,
2019. pp. 80a ~ Bla.

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 856-581 0704 r@drussesmith.cont
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9. Case Management order. July 19, 2019. pp. 82a
~ 83a.

10. Russell Smith’s Memorandum of Law in Support of Motion to Join Moorestown
Township. July 1, 2019. pp. 84a- 90a.

11. Certification of Russell Smith in Support of Motion to Join Moorestown Township with
exhibits. July 1, 2019. pp. 91a— 114a.

12 Opposition of Moorestown Township to Russell Smith’s Motion to Join Moorestown
Township with exhibits, July 24, 2019. pp. 115a— 128a.

13. Reply to opposition by Moorestown Township in Support of Motion to Join Moorestown
Township with exhibits. July 26, 2019. pp, 129a — 147a.

14, Excerpt from Brief of Intervenor Pennrose in Support of Motion for leave to Appeal
Fairness Hearing decision from case BURL-1604-15. August 8, 2019. pp. 148a—
149a.
c
1 9 Letter to Court requesting reconsideration of Motion to Join Moorestown Township.
August 21, 2019, pp. 150a ~ 152a.

16, Letter requesting written decision of reconsideration request of Motion to Join
Moorestown Township. September 1, 2019, pp. 153a— 154a.

Russ Smith, Pro Se, PO Box 597, Moorestown, NJ 08057 856-581-0704 r@russ-smith.con
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Filed with the Court

AUG 23 2018
PREPARED BY THE COURT Paula T. Dow, P.J.Ch.
PENNROSE, LLC, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION
Plaintiff,
BURLINGTON COUNTY
VS.
DOCKET NO. BUR-L-001147-18
APC ASSOCIATES, et al.,
CIVIL ACTION
Defendants.
ORDER

THIS MATTER having come belore the court by way motion filed by Defendant Russel!

Smith, appearing pro sc, with Kevin Ei. Aberant, lisq. of Taenzer, Ettenson & Abcrant appearing

for Respondent Moorestown Township; and the court having considered the partic: papers and

ad.
oral arguments herein; and for good cause shown:

IT IS this ¢a3 ) _ day of August, 2019, ORDERED as follows:

Defendant Russell Smith’s request to compel Moorestown ‘Township to be added as a party

to this litigation pursuant to R. 4:28 is DUNILD.

Defendant Russell Smith's request that the court declare this matter a condemnation

proceeding initiated by Moorestown is DENIED.

IT IS FURTHER ORDERED that a copy of this order shall be served upon all parties

Ss
within Seven (7) days of its receipt.
) 2
- ae

Paula‘ dow, h

Da la
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ee UE LES WOUT
T

AUG 23 2019
Paula T. Dow, P.J.Ch.
PREPARED BY THE COURT

SUPERIOR COURT OF NEW JERSEY
PENNROSE, LLC, CHANCERY DIVISION
Plaintiff, BURLINGTON COUNTY
¥.

DOCKET NO. L-{147-18
APC ASSOCIATES, RUSSELL SMITH, CIVIL ACTION
et al.
Defendants. STATEMENT OF REASONS

Russel! Smith, pro se

Kevin E, Aberant, Esq., Tacnzer, Rttenson & Aberant
Attorney for Respondent, Moorestown Township

This application was opposed.
Proofof service addressed below.

RELIEF REQUESTED

Pending belore the court by way of motion is Petitioner’s request to: 1) compel

Moorestown ‘Vownship to be added as a party to this litigation pursuant to R. 4:28; and 2) declare

this matter a condemnation proceeding initiated by Moorestown, Mor the reasons stated below,

the courl DENIES Plaintiff's requested relicts,

BACKGROUND

In the pending litigation, captioned Pennrose, LLC vy APC Assosiales, ef al., Docket No.

Bur-L-1147-18, Plaintiff Pennrose, 11. (“Pennrose”) seeks a declaratory judgment invalidating

a deed restriction that, by its terms, prohibits the construction of affordable housing on properly

identified as “the Penrose Property.” Russell Smith (“Petitioner”) is the current owner of 16

Meadow Drive, Moorestown, NJ (“Petitioner's Property”). Petitioner avers he is one of 46

Da 2a
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named defendants in this litigation whose real property is also subject to the same restrictive

covenants, Smith Cert,, ff] 1-2..

Petitioner states that in late 2017, Pennrose LLC (“Pennrose”) approached Moorestown

Township (“the Township” or “Respondent”) with plans to intervene in the Township’s separate

declaratory judgement action, entitled In the Matter of the Application of the Township of

Moorestown, County of Burlington, Docket No. BUR-L-1604-15, with an offer to develop

affordable housing on the Pennrose Property, Petitioner states that the Township agreed to

include Pennrose in ils settlement agreement with Fair Share Housing Center (“FSHC”). Smith

Cert, Ex. F, Parsuant lo that agreement, Moorestown proposed to satisly its Mount Laurel

obligation, in part, through the development of a 75-unit affordable housing development on the

Pennrose Properly. Petitioner avers that the Pennrose Property is encumbered by restrictive

covenanis, including a minimum one-half acre or more requirement for any dwelling house, Id.

at 45. Pennrose filed the captioned action to invalidate the deed restrictions that prohibit the

construction of affordable housing,

Petitioner states Pennrose amended its answer to the Township’s Declaratory Judgment

action lo include a third-party Complaint against Petitioner and other homeowners whose

properties are subject to the restrictive covenants. Petitioner avers that Pennrose represented in

its ‘Third-Party Complaint that the removal of the restrictive covenants would assist the

‘Yownship in fulfilling its affordable housing obligation, Pennrose ‘Third-Party Compl,, 457.

Petitioner contends that if the Township required the removal of the restrictive covenants, the

‘Township would then be required to condemn Petitioner's properly and pay appropriate

compensation to PetiGoner and others.

Da 3a
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Petitioner states that on or about June 6, 2019, during a conference before the Hon,

Ronald Bookbinder, A.J., Penrose informed the court that its litigation challenging the deed

restrictions could take approximately two (2) years. Smith Cert. ¥ [4. Petitioner asserts that

during the June 2019 Fairness Hearing, the Township represented it was engaged in negotiations

to purchase the property rights for the Miles Technology Site, located in a different area of

Moorestown, as an alternative to the Pennrose Property, for the development of affordable

housing.!

Petitioner contests the ‘fownship’s alternative plan involving the Miles Technology Site

arguing that Moorestown’s Affordable Housing Plan is part of its Master Plan, which makes

extensive references to the Pennrose project. Petitioner requests this court lo compel

Moorestown’s joinder as a necessary party in Pennrose’s separate, ongoing declaratory judgment

suit and (o declare this matter a condemnation proceeding under applicable New Jersey laws.

Petitioner claims the ‘Township acted in bad faith with respect to the Penrose project, and that

the ‘Township will eventually require additional affordable housing not covered by its most

recent settlement agreement with FSHC.?

Moorestown opposes Petitioner’s motion to join the Township in Pennrose’s fitigation.

‘The Township contends it is not a named party to this litigation, that it has no intent to initiate

any condemnation proceedings involving the affected propertics, and that Petitioner filed this

motion ( make the Township responsible for legal fees and compensation recoverable in

condemnation proceedings.

ae ane we
ati th week Moot own unnounced iis considering other property, not yet disclosed, to satisty its
immediite Mount Laurol obligation,
? Petitioner states that if Respondent cannot be joined as a purty to this litigation, he will be forced to cither file #
third-party claim against Respondent, fle as intervenor in the declaratory judgment case, or tile a completely
separate lawsull, Petitioner contunds these alternatives would only further complicate the pending matter.

Da 4a
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Respondent explains that the Pennrose Property was initially part ofMoorestown’s

Affordable Housing Plan in the Township’s separate declaratory judgement action, pursuant to

the Township’s Settlement Agreement with FSHC, dated March 16, 2018. Moorestown

Township Opp’n, Fx. A. Respondent avers that agreement contemplated the development of 75

affordable housing units on the Pennrose Property, and that Section 10 of the 2018 Settlement

Agreement acknowledged the existence of the deed restriction:

10. With regard to the Pennrosc 100% affordable development addressed in Exhibit D to
this Agroement, the parties agree that the Township has an obligation to demonstrate
before or during the compliance hearing in this matter that the site is available and that no
valid deed restrictions timit the ability of the developer to develop the site in the manner
contemplated by this Agrecment. In the event that the municipality cannot demonstrate
that this site ig available for its proposed use, the municipality shall provide alternative
compliance mechanisms that will provide the number of affordable family rental units
with the same bedroom and affordability restrictions planned for the Pennrose site.

Respondent asserts that in June 2019, prior lo a scheduled Compliance [earing,

Moorestown amended its Settlement Agreement with SHC to include the following

amendment:

Section 10. The parties to this agreement recognize that the Honorable Ronald
Bookbinder, A.J.S.C, issued a decision, dated March 25, 2019, with regard to the issue of
the availability of the Pennrose 100% affordable development located al Block 4801, Lot
12; a.k.a., 160 W. Route 38 for the purpose in which it was included in the earlier
Agreement in this alter, Based upon that decision, it does not appear that (he Township
can demonstrate, within the timeframes contemplated in the carlicr Agreement in (his
matter that the Pennrose site is available for development, ‘The parties agree that the
‘Township shall nevertheless have the opportunity on or before the rrently scheduled
June 19, 2019 Fairness Hearing to show that the Pennro: site is available and that no
deed restriction, currently in effect, limits the ability of the development to develop the sit
in the manner contemplated by the earlier Agreement. In (he event that the municipality
cannot conclusively demonstrate that the site is available before or at the time of the
Fairness Hearing, the Township agrees that it will rely on and shall demonstrate the
provision of a realistic opportunity on the “Mile echnology Site” instead of on the
Pennrose site.

Moorestown ‘Township Opp'n, Hx. B.

4
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On June 24, 2019, the court approved the Amendment. On July 19, 2019, the court

signed an Order Approving Settlement Agreement. Petitioner avers that once the court approved

the Amendment to the Settlement, the Township substituted the Miles ‘Technology Site for the

Pennrose Property in its affordable housing plan. The ‘Township represents that because itis no

longer interested in developing the Pennrose Property, it neither intends nor desires to exercise

its power of eminent domain to condemn the Pennrose Property or the adjacent properties in

order to invalidate the deed restriction at issue in this case, The township contends that

Pennrose’s declaratory judgment action is between private parties, and that because Moorestown

is no longer interested in the Pennrose Property, the Township’s involvement is not required for

a just adjudicati

Case Info

Judge

Paula T Dow Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

September 13, 2019

Case Filing Date

May 30, 2018

County

Parties

Andre Oliveriera Defendant
Annette L Smith Defendant
Anthony P Costa Attorney for the Defendant
Aparecida S Coutinho Defendant
Apc Associates Llc Defendant
Carl Muller Defendant
Carol L Radomski Defendant
Carol Muller Defendant
Chakrya K Molinoff Defendant
Charles Furlong Defendant
Christine E Herb Defendant
Christine Greatrex Defendant
Daniel Hanks Defendant
Daryl F Tonia Defendant
David Hercock Defendant
Diane Speer Defendant
Diego Castellanos Defendant
Doris G Blyler Defendant
Douglas Lynn Heinold Attorney for the Defendant
Edward Mulka Defendant
Elizabeth Falco Defendant
Erika Gore Defendant
Eugene M Flacche Defendant
Eva Hanks Defendant
George C Greatrex Jr Defendant
George Freudenberg Defendant
Giovanna Ferriera Defendant
Hoover Quintero Garcia Defendant
Hui Y Shih Defendant
James E Weist Defendant
Jeffrey B Canfield Defendant
Jeffrey D Herb Defendant
Jeffrey L Molinoff Defendant
Joanne K Welch Defendant
John M Pfrommer Defendant
John S Radomski Defendant
Jose A Coutinho Defendant
Joseph Cavalieri Defendant
Karen Woznica Defendant
Katherine O Schimmel Defendant
Keenan Builders Llc Defendant
Lee H Schimmel Defendant
Margo Furlong Defendant
Marie E Kern Defendant
Mark G Carusillo Attorney for the Defendant
Ming T Shih Defendant
Muir A Mcmath Defendant
Paulette Smith Defendant
Pennrose Llc Plaintiff
Rebecca Castellanos Defendant
Recon Investment Group Llc Defendant
Richard J Perr Attorney for the Plaintiff
Richard J Smith Defendant
Robert Gore Defendant
Robert Woznica Defendant
Ronnie M Tarchichi Defendant
Roseanne M Canfield Defendant
Russell Smith Defendant
Scott G Kern Defendant
Sigmund Tonia Defendant
Susan M Stevens Defendant
Syeda F Ahmed Defendant
Syed M Ahmed Defendant
Theodore J Speer Jr Defendant
Thomas B Mitchell Defendant
Umur Selek Defendant
Vito Brasile Defendant
Warren G Blyler Defendant
Wongsduan Mulka Defendant
Joseph Fiorenzo Attorneys for Plaintiffs
Victor Herlinsky Attorney
Mark Guralnick Attorney
Meryl Gonchar Attorneys for Defendants
ANTHONY COCCA Attorney

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Letter,Correspondence: Pennrose Llc Vs Apc Associates Llc

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