SHORE MEMORIAL HEALTH FOUNDATION, INC., et al. v. CITY OF SOMERS POINT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0415-05T50415-05T5

SHORE MEMORIAL HEALTH FOUNDATION, INC.,

SHORE MEMORIAL HOSPITAL, INC. AND

SHORE HEALTH SERVICES CORPORATION, INC.,

Plaintiffs-Appellants,

and

BAY AVENUE REDEVELOPERS, LLC

Plaintiff-Intervenor-Respondent,

v.

CITY OF SOMERS POINT and CITY OF SOMERS

POINT PLANNING BOARD,

Defendants-Respondents,

and

M & J at SOMERS POINT, LLC

Defendant-Intervenor-Respondent.

_______________________________________

 

Argued May 17, 2006 - Decided June 15, 2006

Before Judges Parker and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

L-2440-05 and L-3288-05.

Christopher R. Carton argued the cause for appellants (McCarter & English, attorneys;

Mr. Carton, of counsel and Gary T. Hall, on the brief).

Respondent Bay Avenue Redevelopers did not file a brief.

Joseph J. Maraziti argued the cause for respondent City of Somers Point (Maraziti, Falcon & Healey, and Law Offices of Roger C. Steedle, attorneys; Mr. Maraziti, of counsel and on the brief; Brent T. Carney, on the brief).

Respondent City of Somers Point Planning Board did not file a brief.

Sandson & DeLucry, attorneys for respondent M & J at Somers Point (Timothy J. Lowry, on the letter relying on the brief filed on behalf of respondent City of Somers Point).

PER CURIAM

This is an appeal from a final judgment entered in an action in lieu of prerogative writs concerning development of properties in the City of Somers Point. When the action was commenced, the properties were included in the City's "Central Bay Avenue/Shore Road Redevelopment Plan" (Plan). Plaintiffs, Shore Memorial Health Foundation and Shore Health Services Corporation (collectively the Hospital), own a substantial portion of the property included in that Plan. The Hospital filed this action in lieu of prerogative writs to compel defendant Planning Board of the City of Somers Point (Board) to consider its applications for development, which the Board deemed incomplete until approved by defendant City Council of Somers Point (Council). The Hospital's complaint was consolidated with a second complaint filed by plaintiff Bay Avenue Redevelopers, LLC (BAR), which challenged the Plan. The consolidated matters were addressed in a summary proceeding, as authorized by R. 4:67-1(b).

The final judgment declares "null and void" all actions relating to the Plan taken on or after January 1, 2004. The actions voided by the judgment include all actions commencing with the Board's resolution designating properties for inclusion in the Plan and culminating in the adoption of the July 8, 2004, ordinance that adopts the Plan. The judgment also voided subsequent resolutions conditionally designating M & J at Somers Point, LLC (M & J) as the redeveloper of designated properties, including property held by the Hospital.

Although the judgment voids the entire Plan, paragraphs one and three of the judgment, read together, have the effect of prohibiting the Hospital from submitting an application for development until a new plan is adopted. The judgment gave the Board and Council until August 31, 2004, to determine whether and when the entities would reconsider a redevelopment plan in accordance with the provisions of the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49. In the event of a decision by the Board and Council to reconsider, the judgment permits the Board to forego consideration of any application for development filed by the Hospital without prior approval of the Council or a redevelopment entity designated by the Council.

The Hospital appeals from that portion of the order requiring it to obtain prior approval of development applications that is not required by the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. The City opposes that appeal.

The relevant facts are as follows. In 2002 the Hospital and Scarborough Properties reached an agreement concerning development and improvement of properties owned by the Hospital. The proposals contemplated included construction of a new skilled care nursing facility and a parking garage and improvements to existing buildings and landscaping on Hospital property. It also called for the Hospital to transfer to Scarborough land not needed for the Hospital's purposes in order to defray the costs of the project. On that land, Scarborough was to construct "age directed, luxury single family [condominium] units with no price restriction," which it would sell.

On May 8, 2003, the Council adopted a resolution authorizing and directing the Board to investigate whether designated properties, including the Hospital's, were in need of redevelopment within the meaning of the LRHL. On July 8, 2004, the Council adopted an ordinance that approved the Plan. In part pertinent to the issues on appeal, the Plan provides:

The area shall be developed in accordance with the standards detailed in the Redevelopment Plan. The Plan supersedes the use[] and bulk provisions of the City's Development Regulations unless specifically referenced. Other standards, definitions and submission requirements relating to all zones in the City shall apply. The City's zoning map shall be amended to identify the Redevelopment Area.

Any deviation from standards of this Plan that results in a "d" variance pursuant to N.J.S.A. 40:55D-70d shall be addressed as an amendment to the Plan rather than via variance relief through the City Zoning Board of Adjustment. The Planning Board shall have the power to grant relief from other bulk and dimensional requirements of this Plan to the same extent as the Board may grant relief from bulk and dimensional requirements pursuant to the Municipal Land Use Law [(MLUL), N.J.S.A. 40:55D-1 to -163]. All development must be approved by the Planning Board and shall be submitted through the normal site plan and subdivision procedures as identified by [the MLUL].

On July 8, 2004, the Council also adopted a resolution designating the Council as the redevelopment entity for the Plan. That resolution does not address procedures for approval of applications for development.

On September 9, 2004, the Council adopted a resolution that designated M & J as the redeveloper for specified properties in the zone, including the Hospital's properties. M & J's designation was conditioned upon execution of a redevelopment agreement "satisfactory to both parties" by March 9, 2005. This resolution does not address procedures for approvals.

On September 24, 2004, the Hospital and Scarborough submitted three applications for development of the Hospital's property to the Board and the Council. By letter dated November 8, 2004, the Board's attorney advised the applicants that the Board would deem incomplete and not consider the Hospital's applications "unless and until it obtained the prior approval of" the Council.

By letter dated November 23, 2004, members of the Council directed the Hospital to meet with M & J. The Hospital complied, but on January 25, 2005, the Hospital again requested the Council to meet and review its applications. By letter dated February 7, 2005, redevelopment counsel for the City advised that the Council would accept a "proposal by the Hospital to implement the Plan at its February 24, 2005 meeting." The Hospital and Scarborough appeared and presented the plan proposed in the development applications previously submitted. The City took no action on the plan, but it adopted another resolution extending M & J's conditional-redeveloper designation until September 9, 2005. This appeal followed.

On appeal, the Hospital argues:

THE TRIAL COURT MISTAKENLY HELD THAT DESIGNATION OF PROPERTY AS BEING IN A REDEVELOPMENT AREA AND ADOPTION OF A REDEVELOPMENT PLAN AUTOMATICALLY NEGATE A PRIVATE PROPERTY OWNER'S RIGHT TO PURSUE DEVELOPMENT APPROVALS ABSENT MUNICIPAL CONSENT.

A. No lawful requirements preclude

development applications by [the]

Hospital.

B. Violation of Statutory Ban on

Development Moratoria in N.J.S.A.

40:55D-90(b).

C. Direct Conflict with Statutory

Jurisdiction of Boards of

Adjustment.

Because the final judgment we review declares the Plan null and void, there is no legal basis for an order that has the effect of precluding the Hospital from pursuing any application for development pending adoption of a redevelopment plan. The relevant law is clear. A redevelopment plan delineating standards applicable to properties in a redevelopment area is a zoning ordinance for the subject property. Jersey Urban Renewal, LLC v. City of Asbury Park, 377 N.J. Super. 232, 234 (App. Div.), certif. denied, 185 N.J. 392 (2005). "The redevelopment plan must indicate '[p]roposed land uses' for 'the project area[,]' N.J.S.A. 40A:12A-7a(2), which 'supersede applicable provisions of the development regulations of the municipality or constitute an overlay zoning district within the redevelopment area.' N.J.S.A. 40A:12-7c." Id. at 235. It is also clear that a redevelopment plan may include special procedural requirements for approval of applications for development within the purview of the plan. Id. at 236-39.

There is no authority, however, for the proposition that a municipality or court may impose procedural or substantive requirements distinct from those authorized and adopted in accordance with the MLUL while it contemplates adoption of redevelopment plan pursuant to the LRHL. Cf. Willoughby v. Planning Bd. of Township of Deptford, 306 N.J. Super. 266 (App. Div. 1997) (holding that the planning board abused its discretion in rushing to approve a site plan before a new zoning ordinance took effect). Because the judgment in this case vacated the Plan, there was no longer any arguable basis for the court to impose procedural prerequisites not included in the MLUL or ordinances adopted under the authority of the MLUL. As the Hospital argues, to the extent that the judgment delays consideration of development applications pending completion of a new plan, it is inconsistent with the Legislature's unmistakably clear intention to permit owners to develop their property absent duly enacted restrictions on that right. N.J.S.A. 40:55D-90 expresses that intention as follows:

a. The prohibition of development in order to prepare a master plan and development regulations is prohibited.

b. No moratoria on applications for development or interim zoning ordinances shall be permitted except in cases where the municipality demonstrates on the basis of a written opinion by a qualified health professional that a clear imminent danger to the health of the inhabitants of the municipality exists, and in no case shall the moratorium or interim ordinance exceed a six-month term.

The Council claims that the Hospital mistakenly relies on provisions of the MLUL and cases construing it rather than cases decided under the LRHL. We disagree. Once the City's Plan was declared null and void, only the limits imposed by the MLUL and ordinances adopted pursuant to the MLUL governed any subsequent application for development submitted by the Hospital.

 
For the foregoing reasons, we vacate paragraphs one and three of the final judgment. It is unnecessary to consider whether the court properly interpreted the LRHL and the terms of the Plan that it declared null and void.

Defendant-intervenor M & J is a developer with whom the City was negotiating concerning designation as the redeveloper. M & J also filed an appeal, which was dismissed by order filed December 12, 2005, in response to M & J's request by letter dated December 9, 2005. M & J has since advised the court that it joins in the arguments presented on behalf of the Council. The Board did not file a brief on appeal.

(continued)

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A-0415-05T5

June 15, 2006