NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0070-24
ELY EDDI,
Plaintiff-Appellant,
v.
ELBERON MEMORIAL PRESBYTERIAN CHURCH, 1101 INVESTOR LLC, and COLIN GAINES,
Defendants-Respondents. ___________________________
Argued March 26, 2026 – Decided April 8, 2026
Before Judges Mawla and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1866-21.
Bruce D. Greenberg argued the cause for appellant (Lite DePalma Greenberg & Afanador, LLC, attorneys; Bruce D. Greenberg and Collin J. Schaffhauser, on the briefs).
Jeffrey A. Donner argued the cause for respondents (Donner Law Associates, LLC, attorneys; Jeffrey A. Donner, on the brief). PER CURIAM
Plaintiff Ely Eddi appeals from a July 30, 2024 judgment, which dismissed
his breach of contract claim against defendant Elberon Memorial Presbyterian
Church and his claim for tortious interference with the contract against
defendants 1101 Investor LLC (1101) and 1101's majority owner Colin Gaines.
We affirm.
This matter was the subject of a nine-day trial resulting in the trial judge
issuing a detailed written opinion. The parties are familiar with the facts, which
we summarize here.
The church owned property in Long Branch, located in an R-1 zone.1 It
wanted to sell a portion of the property and use the funds to repair the church
building.
Gaines owned two lots adjoining the church's property. In April 2019, the
church began discussions with him about a potential sale. In February 2020, the
church entered a contract to sell part of its property to plaintiff instead.
1 The R-1 zoning district is a one-family residential zone. It accounts for the lowest density and the largest single-family residential lot sizes in Long Branch. The master plan limits this zone to "single-family detached dwellings at densities of [two] to [four] units per acre." Long Branch, 2009 Master Plan 12, 19 (March 2010). The minimum lot size is 17,500 square feet. Long Branch, N.J., Ordinances §§ 345-20, -102. A-0070-24 2 The church's contract with plaintiff was negotiated over the subsequent
six months and finalized in July 2020. Plaintiff agreed to pay $725,000 for the
parcel, and the church agreed to obtain approval for a subdivision within six
months, with the option of a three-month extension.
After plaintiff and the church entered their contract, Gaines expressed
interest in purchasing the parcel. The church negotiated with Gaines,
culminating in an agreement reached by email in December 2020. While the
church was negotiating with Gaines, it was also discussing amendments to the
contract it had with plaintiff.
On May 27, 2021, the church's attorney sent a letter advising plaintiff the
church was not proceeding with the sale and terminating the contract. Plaintiff
sued the church the next day for specific performance, breach of contract, and
breach of the implied covenant of good faith and fair dealing. He later amended
the complaint to include a tortious interference with contractual relations claim
against 1101 and Gaines, and a consumer fraud claim against the church.
On June 4, 2021, the church entered a formal contract to sell the property
to 1101 for $675,000. The contract obligated 1101 to pay the costs of obtaining
subdivision approval.
A-0070-24 3 The trial judge heard testimony from twelve witnesses and considered
numerous exhibits. On the eighth day of trial, plaintiff moved to withdraw his
claim for specific performance with prejudice. Defendants opposed the
withdrawal, citing the fact they relied on plaintiff pursuing the claim. The judge
granted the withdrawal request, noting plaintiff's request for a monetary award
remained a part of the case.
The judge conducted a thorough analysis of plaintiff's remaining claims.
As for the breach of contract claim, she concluded the evidence showed the
church never provided a subdivision plat to plaintiff showing "the exact
proposed lot line[] in order to proceed with the preparation of plans that could
be submitted to the [p]lanning [b]oard." The church never had a surveyor
prepare the final subdivision plat. If it "believed it needed plans from [plaintiff]
. . . to finalize the subdivision plat, [it] never responded to [his] many requests
for the status of the subdivision application by advising that it needed [ him] to
provide the plans." Although the subdivision application could have been
submitted without plaintiff's plans, "the plans would have been ultimately
required by the . . . [b]oard."
The church claimed its inaction was not a breach of contract because it
was awaiting receipt of plans from plaintiff, who was the party in breach,
A-0070-24 4 because he did not provide plans for the construction of a residence on the
proposed subdivision. Because 1101 made a competing offer, the church
claimed it was impossible for it to obtain board approval for the subdivision as
a variance application pursuant to N.J.S.A. 40:55D-70(c)(1) or (2).
The judge rejected the church's arguments, noting it ignored the fact it was
obligated to obtain a subdivision plat to depict the subdivision line under its
contract with plaintiff. The contract with plaintiff also required the church to
keep plaintiff's counsel "fully informed as to the [s]ubdivision process and
status." The church never provided the subdivision plat to plaintiff and only
obtained it for 1101 after it entered the contract with 1101, which the judge
noted was "several months after the [c]hurch had advised [plaintiff] that it would
be selling the property to him. . . . The [c]hurch had the obligation to pursue the
application for subdivision approval."
The judge turned next to the June 2021 contract between 1101 and the
church. The contract did not state it was a backup or that it was contingent on
the termination of the contract between plaintiff and the church. But the contract
did acknowledge there was a prior proposed buyer and contained an
indemnification provision requiring 1101 to indemnify the church for its costs
defending a lawsuit by plaintiff.
A-0070-24 5 The judge noted "the [c]hurch operated on the belief, whether correct or
incorrect, that a subdivision application filed in accordance with [its] contract
[with plaintiff] would be difficult to obtain if Gaines made a reasonable offer to
purchase the property." Based on the evidence, the judge was "satisfied that
entering into a backup contract . . . subject to a contingent contract" was not a
breach of contract by the church. Nor was there a breach by "discussing the
potential contingent sale to 1101, exchanging communications on a potential
sale to 1101, [or] entering into the mid-December 2000 agreement with
1101/Gaines."
The judge found the breach was the church's failure to follow through on
its obligations to plaintiff. She concluded "the [c]hurch failed to pursue
subdivision approval as required under [its contract with plaintiff], and failed to
advise [plaintiff] of the progress, or lack of progress, on an application."
Plaintiff thus proved the initial three elements of a breach of contract claim,
namely: the parties had a contract with specific terms; plaintiff did what it was
required to do; and the church did not perform its obligations.
However, plaintiff's claim failed because he could not prove damages.
The evidence failed to show the board "would have granted the subdivision
application presented in accordance with the contract between [plaintiff] and the
A-0070-24 6 [c]hurch." Defendants adduced testimony from a planning expert who explained
a subdivision application would not have met the (c)(1) or (c)(2) criteria. The
church would not be able to establish a hardship necessitating the subdivision
because 1101 was an adjoining property owner who could purchase the non-
conforming lot, obviating the need of a variance.
The judge rejected plaintiff's expert's testimony to the contrary, reasoning
"[i]t is difficult to imagine that the offer by 1101 would not have come to the
attention of the . . . [b]oard, given Gaines' stated intent to appear before the . . .
[b]oard to object to a subdivision application filed under the [plaintiff/c]hurch
contract." She observed board members are permitted to rely upon their
knowledge of the area in deciding an application. It was expected they would
do so because "local boards are not limited in the evidence presented to the rules
of evidence and procedure that govern a trial in the Superior Court."
Plaintiff claimed, before trebling the damages per the Consumer Fraud
Act (CFA), N.J.S.A. 56:8-19, his damages totaled more than $2.1 million,
comprised of the purchase price of the land and construction costs of a residence
he intended to sell, less the realty transfer fee. The judge rejected his argument,
noting neither party's land use expert opined whether the board would have
granted the application. "No evidence was presented by either party of any
A-0070-24 7 history of subdivision applications resulting in undersized lots in the R -1 zone,
or any other zone in Long Branch." Although there was a nearby row of
properties that did not meet the R-1 zone requirements, "no evidence was
presented . . . those lots were created through variance approvals by the . . .
[b]oard."
Plaintiff, therefore, "did not prove . . . his assertion that '[h]ad the [church]
fulfilled its [contractual] obligations[,] . . . [he] would have acquired the
[property].' This is a necessary element of [plaintiff]'s claim." Because plaintiff
could not prove the board would have granted the application, he could not prove
he suffered monetary damages due to the church's breach.
The judge also found plaintiff's proof of damages "unconvincing" because
the comparable properties used to derive the sale price of the property plaintiff
intended to build "were fully functioning homes that were landscaped. Many
had upper-end finishes. All or most of the comp properties had swimming
pools." The estimate plaintiff provided for the home he intended to build lacked
these characteristics and "was incomplete." According to the judge, plaintiff
attempted "to provide an off-the-cuff and non-specific estimate [of] the cost of
. . . many items that were excluded from [his] estimate," which "was not at all
convincing."
A-0070-24 8 Because plaintiff withdrew his claim for specific performance, neither
party briefed nor argued the issue at trial. As a result, the judge concluded she
could not address whether specific performance was possible.
The judge found plaintiff did not prove a breach of the covenant of good
faith and fair dealing because, having reviewed the evidence, she could not
conclude the church "engage[d] in behavior with a 'bad motive or intention,' or
a 'malice-like element.'" The church had the legal right "to negotiate and enter
into a backup contract for the sale of the property with 1101/Gaines." This claim
also suffered from a lack of proof of damages.
Plaintiff predicated the tortious interference claim on the assertion 1101
and Gaines knew about plaintiff's contract with the church yet interfered with it
by appearing before the board to object to the subdivision with intent to impede
the contract and damage plaintiff. The judge recalled plaintiff's counsel
conceded Gaines' appearance before the board to object to the subdivision
"would not provide a basis for a tortious interference with [plaintiff]'s
contractual rights claim, but rather the claim was based upon Gaines' negotiation
[of] a contract with the [c]hurch while [plaintiff]'s contract with the [c]hurch
was pending." Even so, "1101 had a constitutional right to appear through
Gaines . . . before the . . . [b]oard to object to the subdivision" because "1101
A-0070-24 9 owned two adjoining properties, and Gaines was [its] shareholder . . . and
managing member."
The judge also rejected plaintiff's assertion the negotiation of a backup
contract constituted a tortious interference. No legal authority supported the
notion "a seller is not permitted to enter into a backup contract providing for the
sale of real property to a buyer, contingent upon a contract already entered into
by the seller with another person or entity."
The record also lacked evidence of malice because "[w]hen 1101 entered
into the contract with the [c]hurch[,] . . . the [c]hurch had taken the position,
correctly or incorrectly, that the contract with [plaintiff] had been terminated ."
This was not evidence of "actual interference with a contract." As with the
breach claims, the tortious interference claim failed because plaintiff lacked
evidence showing "defendants' interference caused damage."
The judge entered a final judgment dismissing all of plaintiff's claims,
including the CFA claim, which is not part of this appeal. She granted the
church's counterclaim to discharge plaintiff's lis pendens and dismissed its
counterclaim against plaintiff for breach of the covenant of good faith and fair
dealing.
A-0070-24 10 I.
On appeal, plaintiff challenges the trial judge's rulings he did not prove
damages because he could not show whether the board would have approved the
subdivision. He asserts the judge should have considered the evidence herself
to decide whether a subdivision would have been granted. The judge also erred
because she improperly relied upon the church's misconduct and breach of
contract—which ultimately doomed plaintiff's subdivision application—as a
basis to conclude the board would not grant the application.
Plaintiff argues he proved an undue hardship, showing the board would
have granted him a (c)(1) variance. He also met the positive criteria for a (c)(2)
variance, as well as the negative criteria for a (c)(1) and (c)(2) variance.
However, the judge erroneously relied upon defendants' expert when she
concluded neither variance would be granted.
Plaintiff claims the judge misapplied the law when she dismissed the
tortious interference claim. She made a similar mistake when she decided
plaintiff could not prove damages.
II.
"Our review of a judgment following a bench trial is limited."
Accounteks.Net, Inc. v. CKR L., LLP, 475 N.J. Super. 493, 503 (App. Div.
A-0070-24 11 2023). "[F]indings [of fact] by the trial court are binding on appeal when
supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154
N.J. 394, 411-12 (1998).
Questions of law, however, are reviewed de novo. Rowe v. Bell & Gossett
Co., 239 N.J. 531, 552 (2019). "A trial court's interpretation of the law and the
legal consequences that flow from established facts are not entitled to any
special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995).
It is fundamental that "[c]ourts cannot substitute an independent judgment
for that of the [local municipal] boards in areas of factual disputes; neither will
they exercise anew the original jurisdiction of such boards or trespass on their
administrative work." Kramer v. Bd. of Adj., 45 N.J. 268, 296 (1965). "Local
officials who are thoroughly familiar with their community's characteristics and
interests and are the proper representatives of its people[] are undoubtedly the
best equipped to pass initially on . . . applications for variance." Ward v. Scott,
16 N.J. 16, 23 (1954).
Pursuant to these principles, we reject plaintiff's argument the trial judge
erred in finding he did not prove the board would have granted the subdivision.
Although it was undisputed the church breached its contract with plaintiff, the
A-0070-24 12 judge correctly held the evidence did not show the board would have granted
the variance, even if the church had complied with its contractual obligations.
Indeed, the trial evidence showed the subdivision and variance
applications would have been contested. Plaintiff's expert testified he would
have argued the (c)(1) and (c)(2) variances were necessary for the subdivision,
while the defense expert would have argued they were not. Gaines testified he
would have opposed a subdivision application made pursuant to plaintiff's
contract with the church. He would have told the board he was offering fair
market value for the property, and he intended to add to his parcels to create an
oversized lot conforming to the R-1 zone requirements, rather than create an
undersized lot.
It was not enough for plaintiff to show a breach of contract; he had to
establish the damages were a "reasonably certain consequence" of the church's
breach. Nelson v. Elizabeth Bd. of Educ., 466 N.J. Super. 325, 343 (App. Div.
2021) (quoting Donovan v. Bachstadt, 91 N.J. 434, 445 (1982)). Given the
idiosyncrasies of land use matters, including the specialized nature of land use
boards and the deference courts owe to them, the judge was correct not to
prognosticate on whether the subdivision application would have been granted.
See Popular Refreshments, Inc. v. Fuller's Milk Bar & Recreation Ctr., Inc., 85
A-0070-24 13 N.J. Super. 528, 536, 540 (App. Div. 1964) (affirming denial of damages under
contract for sale of land where "[s]ubdivision approval by the local planning
board or governing body was an implied condition of the contract . . . and was
never fulfilled" because compliance with the contract "rest[ed] in the will or
discretion of a third party uncontrolled by the defendant," and "there was no
assurance that the . . . subdivision would have been approved"); Ridge
Chevrolet-Oldsmobile, Inc. v. Scarano, 238 N.J. Super. 149, 152, 156-57 (App.
Div. 1990) (declining to order specific performance of a land sale contract where
"the condition precedent" to the contract—obtaining site plan, wetland, and
variance approval from the local board—was "neither . . . met nor waived," and
noting "whether such conditions w[ould] ever be met [wa]s a matter solely
within the discretion of a third party, the [b]oard of [a]djustment").
Setting aside the fact the subdivision decision belonged to the board in the
first instance, we are unconvinced the record supports plaintiff's argument the
judge could have decided plaintiff's variance applications would have been
approved. "An applicant who pursues a variance under N.J.S.A. 40:55D -
70(c)(1) must establish that the particular conditions of the property present a
hardship." Ten Stary Dom P'ship v. Mauro, 216 N.J. 16, 29 (2013). In addition
to showing a hardship, "an applicant for a (c)(1) variance must satisfy the
A-0070-24 14 negative criteria" which "require[s] proof that the variance will not result in
substantial detriment to the public good or substantially impair the purpose of
the zoning plan." Id. at 30.
"The efforts made to bring the property into compliance with the
ordinance are factors that must be considered." Id. at 29-30. "Those efforts may
include attempts to acquire additional land or offers to sell the nonconforming
lot to adjacent property owners." Id. at 30. "[A] fair market value offer to
purchase the property by an adjoining owner is a relevant, but not dispositive,
consideration in determining whether hardship exists." Davis Enters. v. Karpf,
105 N.J. 476, 482-83 (1987). Rather, "such an offer would constitute a
circumstance to be considered in the application of the [b]oard's statutory
discretion to the whole case." Id. at 483 (quoting Gougeon v. Bd. of Adj., 54
N.J. 138, 148-49 (1969)).
"The availability of a hardship variance depends on how the hardship was
created." Jock v. Zoning Bd. of Adj., 184 N.J. 562, 590 (2005). "Where the
hardship has been created by the applicant, or a predecessor in title, relief will
normally be denied . . . ." Id. at 591.
"N.J.S.A. 40:55D-70(c)(2) permits a variance for a specific property, if
the deviation from bulk or dimensional provisions of a zoning ordinance would
A-0070-24 15 advance the purposes of the zoning plan and if the benefit derived from the
deviation would substantially outweigh any detriment." Ten Stary Dom P'ship,
216 N.J. at 30. "For a (c)(2) variance, approval must be rooted in the purposes
of the zoning ordinance rather than the advancement of the purposes of the
property owner." Ibid. "Thus, the positive criteria include proof that the
characteristics of the property present an opportunity to put the property more
in conformity with development plans and advance the purposes of zoning."
Ibid. "[T]he grant must actually benefit the community in that it represents a
better zoning alternative for the property." Jacoby v. Zoning Bd. of Adj., 442
N.J. Super. 450, 471 (App. Div. 2015). "As with the (c)(1) variance, the
negative criteria include proof that the variance would not result in substantial
detriment to the public good or substantially impair the purpose of the zone
plan." Ten Stary Dom P'ship, 216 N.J. at 30.
The substantial credible evidence in the record does not convince us the
variances would have been granted. The board could have concluded the
hardship was self-created or it was better to deny the variance in favor of 1101
acquiring the property, keeping it in conformance with the R-1 zone. The trial
judge essentially found the experts' opinions were in equipoise, meaning
plaintiff did not meet his burden of proof. Under the preponderance of the
A-0070-24 16 evidence standard, "[i]f the evidence is in equipoise, the burden has not been
met." Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006) (quoting Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 5a on N.J.R.E.
101(b)(1) (2005)).
It is not our role to re-weigh the judge's assessment of the expert
testimony. "[T]he weight to be given to the evidence of experts is within the
competence of the fact-finder." LaBracio Fam. P'ship v. 1239 Roosevelt Ave.,
Inc., 340 N.J. Super. 155, 165 (App. Div. 2001). A trial judge has "wide
discretion to accept or reject an expert's testimony, either in whole or in part."
Sipko v. Koger, Inc., 251 N.J. 162, 188 (2022).
Finally, we affirm the rejection of plaintiff's evidence on the amount of
his alleged damages and the finding there was no tortious interference with his
contract with the church for the reasons expressed by the trial judge. On both
scores, the judge's rulings were sound and based on the substantial credible
evidence in the record. We decline to second guess the judge's fact-finding and
are unconvinced she misapplied the law.
Affirmed.
A-0070-24 17