NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3281-18T2
KAMMERMAN'S MARINE, INC.,
Appellant,
v.
NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY and NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondents. _____________________________
Submitted April 27, 2020 – Decided October 2, 2020
Before Judges Messano and Ostrer.
On appeal from the New Jersey Economic Development Authority.
Lieberman & Blecher, PC, attorneys for appellant (Stuart J. Lieberman, of counsel and on the briefs; Daniel E. Hewitt and Kacy C. Manahan, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondents (Donna Arons, Assistant Attorney General, of counsel; Matthew Reagan, Deputy Attorney General, on the briefs).
The opinion of the court was delivered by
OSTRER, J.A.D.
Marina operator Kammerman's Marine, Inc. (Marine) appeals from the
final agency decision of the New Jersey Economic Development Authority
(EDA) requiring that it repay a conditional hardship grant it received under the
Underground Storage Tank Finance Act, N.J.S.A. 58:10A-37.1 to -37.23 (Act),
to remediate leaking underground storage tanks. "Upon the sale of [the] facility"
for which a grant was made, the Act requires repayment according to a sliding
scale. N.J.S.A. 58:10A-37.10(b), -37.16(c). A "facility" means the underground
tanks. N.J.S.A. 58:10A-37.2. If the sale occurs after two years of operation,
seventy-five percent of the grant must be repaid; if after three years, fifty
percent; if after four years, twenty-five percent; and if the sale occurs after five
years, the grant is forgiven. The EDA's grant agreement with Marine likewise
states that "upon the sale of the Project Site and/or the Underground Storage
Tanks," the grant must be repaid, according to the sliding scale provision.
Relying on the Act and the agreement, the EDA required repayment of a $58,500
grant, minus a twenty-five percent discount, because it found that the property
A-3281-18T2 2 where Marine operates, and where the assisted remediation would occur, was
sold less than three years after the grant issued.
Marine presents four arguments to avoid repayment. It contends that,
although it received the grant, it is merely a tenant and marina operator on real
property others owned; and even if the real property was sold, Marine was not.
Therefore, it was not obliged to repay. Alternatively, Marine argues that the
transfer of title to the real property was not a sale, but a transfer without
consideration, which did not trigger repayment. Marine also invokes another
provision of the Act, which it contends shields it from repayment because it
continued to operate as it had when it received the grant. Finally, Marine
contends that requiring repayment violates the Act's legislative purpose.
We find none of these arguments persuasive. We are not bound by the
EDA's interpretation of the Act. See Mayflower Sec. Co. v. Bureau of Sec., 64
N.J. 85, 93 (1973). And a contract's meaning is a legal matter for our de novo
review. Kieffer v. Best Buy, 205 N.J. 213, 222 (2011). Although we depart in
some respects from the agency's reasoning, see State v. Heisler, 422 N.J. Super.
399, 416 (App. Div. 2011) (stating we may affirm for reasons other than those
relied on by the court below in the decision on appeal), we discern no error in
the EDA's demand for repayment pursuant to the Act and agreement. And,
A-3281-18T2 3 ample evidence supported the EDA's conclusion that the Project Site or Facility
was sold, see Brady v. Bd. of Review, 152 N.J. 197, 211 (1997) (stating courts
are obliged to accept an agency's factual finding supported by substantial
evidence).
We begin with Marine's contentions that its repayment obligation does not
apply, because it is merely an operator and tenant, and the property was not sold.
The sparse record before us certainly indicates that Marine was never the
title owner of the property where the assisted remediation was to occur.
However, in applying for the grant, Christian Kammerman listed himself and
Marine — a New Jersey corporation that he and Misty Kammerman equally own
— as both the "proposed owner of the project" and the "present owner of the
Project Site." The "Project Site" was said to be located at Block 566, Lot 10 in
Atlantic City. The subsequent grant agreement refers to Marine's application
for financial assistance to remove leaking underground storage tanks at the
"Project Site," and requires grant repayment upon sale of the "Project Site."
Reasonably interpreted, the term "Project Site" means the real property
where the tanks to be remediated are located. The grant agreement expressly
states that Marine "is, as of the date hereof, the owner of the Project Site." It
does not identify Marine as a mere tenant or operator. Marine does not explain
A-3281-18T2 4 how as tenant, it could "own" the Project Site. The application and agreement
should be read together. Lawrence v. Tandy & Allen, Inc., 14 N.J. 1, 6 (1953)
(stating that "where several writings are made as part of one transaction relating
to the same subject matter, they may be read together"). Having represented it
owned the Project Site, and received a grant based on that representation, Marine
is estopped from now denying ownership to avoid repayment upon the site's sale.
See Knorr v. Smeal, 178 N.J. 169, 178 (2003) (setting forth elements of
equitable estoppel, which is "designed to prevent injustice by not permitting a
party to repudiate a course of action on which another party has relied to [its]
detriment").
Second, regardless of Marine's status as tenant or operator, the Act and
the grant agreement plainly require repayment upon sale of the Project Site or
the Facility, that is, the tanks. The record also clearly indicates that both were
sold. The Project Site is located at Block 566, Lot 10. The Facility consists of
the tanks. Both the Project Site and the Facility changed hands. In fact, two
sales occurred after the EDA entered the grant agreement in 2014. In July 2017,
Misty Kammerman transferred her fifty-percent interest in Block 566, Lots 10,
11.01 and 13 to Christian Kammerman for $130,400. As noted, Marine's
A-3281-18T2 5 application designated Lot 10 as the Project Site's location.1 Shortly thereafter,
Christian Kammerman transferred the three lots to a limited liability company,
Kamms Properties, which he and his wife, Stacey Kammerman, own. Although
the deed reflecting that transfer recited consideration of only $10, Christian
Kammerman executed a Seller's Residency Certification/Exemption and an
Affidavit of Consideration for Use by Seller, in which he acknowledged he
received consideration of $30,400 for the transfer — which was the balance of
the existing mortgage on the property. Therefore, we need not address Marine's
argument that an intra-family transfer for nominal consideration does not trigger
repayment. Cf. State v. Weissman, 73 N.J. Super. 274, 281 (App. Div. 1962)
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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-3281-18T2
KAMMERMAN'S MARINE, INC.,
Appellant,
v.
NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY and NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondents. _____________________________
Submitted April 27, 2020 – Decided October 2, 2020
Before Judges Messano and Ostrer.
On appeal from the New Jersey Economic Development Authority.
Lieberman & Blecher, PC, attorneys for appellant (Stuart J. Lieberman, of counsel and on the briefs; Daniel E. Hewitt and Kacy C. Manahan, on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondents (Donna Arons, Assistant Attorney General, of counsel; Matthew Reagan, Deputy Attorney General, on the briefs).
The opinion of the court was delivered by
OSTRER, J.A.D.
Marina operator Kammerman's Marine, Inc. (Marine) appeals from the
final agency decision of the New Jersey Economic Development Authority
(EDA) requiring that it repay a conditional hardship grant it received under the
Underground Storage Tank Finance Act, N.J.S.A. 58:10A-37.1 to -37.23 (Act),
to remediate leaking underground storage tanks. "Upon the sale of [the] facility"
for which a grant was made, the Act requires repayment according to a sliding
scale. N.J.S.A. 58:10A-37.10(b), -37.16(c). A "facility" means the underground
tanks. N.J.S.A. 58:10A-37.2. If the sale occurs after two years of operation,
seventy-five percent of the grant must be repaid; if after three years, fifty
percent; if after four years, twenty-five percent; and if the sale occurs after five
years, the grant is forgiven. The EDA's grant agreement with Marine likewise
states that "upon the sale of the Project Site and/or the Underground Storage
Tanks," the grant must be repaid, according to the sliding scale provision.
Relying on the Act and the agreement, the EDA required repayment of a $58,500
grant, minus a twenty-five percent discount, because it found that the property
A-3281-18T2 2 where Marine operates, and where the assisted remediation would occur, was
sold less than three years after the grant issued.
Marine presents four arguments to avoid repayment. It contends that,
although it received the grant, it is merely a tenant and marina operator on real
property others owned; and even if the real property was sold, Marine was not.
Therefore, it was not obliged to repay. Alternatively, Marine argues that the
transfer of title to the real property was not a sale, but a transfer without
consideration, which did not trigger repayment. Marine also invokes another
provision of the Act, which it contends shields it from repayment because it
continued to operate as it had when it received the grant. Finally, Marine
contends that requiring repayment violates the Act's legislative purpose.
We find none of these arguments persuasive. We are not bound by the
EDA's interpretation of the Act. See Mayflower Sec. Co. v. Bureau of Sec., 64
N.J. 85, 93 (1973). And a contract's meaning is a legal matter for our de novo
review. Kieffer v. Best Buy, 205 N.J. 213, 222 (2011). Although we depart in
some respects from the agency's reasoning, see State v. Heisler, 422 N.J. Super.
399, 416 (App. Div. 2011) (stating we may affirm for reasons other than those
relied on by the court below in the decision on appeal), we discern no error in
the EDA's demand for repayment pursuant to the Act and agreement. And,
A-3281-18T2 3 ample evidence supported the EDA's conclusion that the Project Site or Facility
was sold, see Brady v. Bd. of Review, 152 N.J. 197, 211 (1997) (stating courts
are obliged to accept an agency's factual finding supported by substantial
evidence).
We begin with Marine's contentions that its repayment obligation does not
apply, because it is merely an operator and tenant, and the property was not sold.
The sparse record before us certainly indicates that Marine was never the
title owner of the property where the assisted remediation was to occur.
However, in applying for the grant, Christian Kammerman listed himself and
Marine — a New Jersey corporation that he and Misty Kammerman equally own
— as both the "proposed owner of the project" and the "present owner of the
Project Site." The "Project Site" was said to be located at Block 566, Lot 10 in
Atlantic City. The subsequent grant agreement refers to Marine's application
for financial assistance to remove leaking underground storage tanks at the
"Project Site," and requires grant repayment upon sale of the "Project Site."
Reasonably interpreted, the term "Project Site" means the real property
where the tanks to be remediated are located. The grant agreement expressly
states that Marine "is, as of the date hereof, the owner of the Project Site." It
does not identify Marine as a mere tenant or operator. Marine does not explain
A-3281-18T2 4 how as tenant, it could "own" the Project Site. The application and agreement
should be read together. Lawrence v. Tandy & Allen, Inc., 14 N.J. 1, 6 (1953)
(stating that "where several writings are made as part of one transaction relating
to the same subject matter, they may be read together"). Having represented it
owned the Project Site, and received a grant based on that representation, Marine
is estopped from now denying ownership to avoid repayment upon the site's sale.
See Knorr v. Smeal, 178 N.J. 169, 178 (2003) (setting forth elements of
equitable estoppel, which is "designed to prevent injustice by not permitting a
party to repudiate a course of action on which another party has relied to [its]
detriment").
Second, regardless of Marine's status as tenant or operator, the Act and
the grant agreement plainly require repayment upon sale of the Project Site or
the Facility, that is, the tanks. The record also clearly indicates that both were
sold. The Project Site is located at Block 566, Lot 10. The Facility consists of
the tanks. Both the Project Site and the Facility changed hands. In fact, two
sales occurred after the EDA entered the grant agreement in 2014. In July 2017,
Misty Kammerman transferred her fifty-percent interest in Block 566, Lots 10,
11.01 and 13 to Christian Kammerman for $130,400. As noted, Marine's
A-3281-18T2 5 application designated Lot 10 as the Project Site's location.1 Shortly thereafter,
Christian Kammerman transferred the three lots to a limited liability company,
Kamms Properties, which he and his wife, Stacey Kammerman, own. Although
the deed reflecting that transfer recited consideration of only $10, Christian
Kammerman executed a Seller's Residency Certification/Exemption and an
Affidavit of Consideration for Use by Seller, in which he acknowledged he
received consideration of $30,400 for the transfer — which was the balance of
the existing mortgage on the property. Therefore, we need not address Marine's
argument that an intra-family transfer for nominal consideration does not trigger
repayment. Cf. State v. Weissman, 73 N.J. Super. 274, 281 (App. Div. 1962)
(stating that "[t]he broad aspect of the term 'sale' signifies the transfer of
property from one person to another for a consideration of value," but
1 On appeal, Marine contends that the property was jointly owned by Christian, Misty, Desiree and Leslie C. Kammerman when the grant was issued in 2014. That is belied by the record. The 2017 deed recites that in 2013, Desiree and Leslie C. Kammerman transferred their respective twenty-five-percent interests to Christian and Misty Kammerman. The four Kammermans jointly received title to the properties by deeds from another Kammerman family-member's trust and estate in 2006 and 2008. For reasons that are not apparent, Marine evidently submitted to the EDA as part of its 2014 grant application a copy of one of the 2006 deeds, which transferred a partial interest in Lot 13 (not Lot 10). In its responding brief, the EDA also mistakenly relies on that 2006 deed in support of the erroneous statement that the four Kammermans owned the property when the grant issued. A-3281-18T2 6 acknowledging that the term may have broader or narrower meaning). Misty
Kammerman received more than nominal consideration to transfer her fifty-
percent share of the property to Christian Kammerman, and Christian
Kammerman received more than nominal consideration to transfer his sole
ownership of the property to the LLC.
We also reject Marine's argument that it is not obliged to repay the grant
because it has continued to operate its marina. Marine misinterprets N.J.S.A.
58:10A-37.16, which entitles the EDA to a lien on the real property where the
tanks to be remediated are located. The lien shall be removed upon repayment
of a grant. N.J.S.A. 58:10A-37.16(c). However, as we have noted, the section
gradually reduces the repayment amount over five years, provided the grantee
continues to operate "in substantially the same manner" as it did when it received
the grant. Ibid. If it ceases to operate in substantially the same manner, "the
five-year period to satisfy the lien shall be tolled." Ibid. Contrary to Marine's
contention, the provision does not condition repayment on the failure to operate
in the same manner. Rather, it simply suspends the reduction in the repayment
amount, unless and until the grantee resumes prior operations. Sale of the
Facility triggers repayment. N.J.S.A. 58:10A-37.10(b).
A-3281-18T2 7 Lastly, we reject Marine's contention that requiring it to repay the grant
violates the Legislature's intent. The statute clearly requires grant repayment
"[u]pon the sale of a facility" — that is, the tanks — "for which a conditional
hardship grant was made . . . ." N.J.S.A. 58:10A-37.10. We assume the
underground tanks are fixtures that transfer with the land. Marine provides no
evidence to the contrary. When a statute's plain language is clear, our
interpretative task is complete. In re Kollman, 210 N.J. 557, 568 (2012). The
Legislature expressly included only two exceptions to the general rule that the
sale of the facility requires immediate repayment of the grant: if the sale were
made pursuant to a condemnation proceeding or in the exercise of eminent
domain. N.J.S.A. 58:10A-37.10(b). Neither is present here. We will "not write
in an additional qualification which the Legislature pointedly omitted in drafting
its own enactment." Craster v. Bd. of Comm'rs of City of Newark, 9 N.J. 225,
230 (1952).
In any event, we are unpersuaded that requiring repayment is so contrary
to the general purpose of the statute that a literal reading should be avoided. The
statute provides a generous benefit to certain owners of leaking underground
tanks. So long as they retain the property and operate it in substantially the same
manner for five years, the grant is forgiven, and the property owner enjoys the
A-3281-18T2 8 increased value from remediating the tank. The repayment obligation upon sale
assures that the EDA receive, as part of the sale proceeds, the return of its
"investment" in the polluted property. Absent repayment, the seller would enjoy
the full benefit of the grant. We acknowledge uncertainty about whether the
statute requires repayment upon transfers for nominal or no consideration.
However, that is not the case here.
Affirmed.
A-3281-18T2 9