ANTHONY ALBANO, et al. v. CITY OF VINELAND, CITY OF VINELAND CITY COUNCIL et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3711-05T13711-05T1

ANTHONY ALBANO, FRANK FARSIDE,

LYNDA VINGI and EDWARD SCIORE,

Plaintiffs-Appellants,

v.

CITY OF VINELAND, CITY OF

VINELAND CITY COUNCIL and

CITY OF VINELAND PLANNING

BOARD,

Defendants-Respondents,

and

WAL-MART REAL ESTATE BUSINESS

TRUST,

Intervenor-Respondent.

________________________________________________________________

 

Argued October 18, 2006 - Decided December 14, 2006

Before Judges Cuff, Fuentes and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, CUM-L-672-05.

Brett I. Last argued the cause for appellants (O'Brien, Belland & Bushinsky, attorneys; Mark E. Belland, of counsel; and Mr. Last, on the brief).

Frank DiDomenico argued the cause for respondents, City of Vineland, City of Vineland City Council and City of Vineland Planning Board (Mr. DiDomenico, attorney and on the brief).

Salvatore Perillo argued the cause for intervenor/respondent, Wal-Mart Real Estate Business Trust (Perskie, Nehmad & Perillo, attorneys; Mr. Perillo, on the brief).

PER CURIAM

Plaintiffs Anthony Albano, Frank Farside, Lynda Vingi and Edward Sciore appeal from an order of the trial court rejecting their challenge to a City of Vineland redevelopment plan ordinance that permitted the opening of a Wal-Mart store. Plaintiffs assert that the grant of summary judgment to the City of Vineland (City) and its Council and Planning Board improperly rejected their claims that: Councilman James Forcinito had a disabling conflict of interest requiring him to recuse himself; the adoption of the ordinance violated the Master Plan and was therefore arbitrary and capricious; and Council's failure to record Forcinito's comments about his son's employment with Wal-Mart in the minutes of the City Council meeting violated the Open Public Meetings Act. We conclude that the trial court's rejection of these claims was proper, and affirm.

I

On May 10, 2005, the City Council (Council) adopted, on second reading, two resolutions. The first, ordinance 2005-195, approved the terms of a "Redeveloper Agreement" between Wal-Mart Real Estate Business Trust (Wal-Mart) and the City to construct a 226,595 square foot Wal-Mart Super Center on a 26.35 acre site, designated on the tax map as Lot 15, known as the Plaza Commercial District. The second, ordinance 2005-30, amended the City's redevelopment plan, by eliminating the then-existing 65,000 square foot maximum store size and by reducing the minimum lot size acreage requirement from thirty-five acres to twenty-five acres.

The adoption of those two resolutions was the culmination of a year-long series of meetings of both Council and the Planning Board. The first of those meetings was a Council meeting on May 25, 2004, during which Council adopted a redevelopment plan which limited the size of stores in the Plaza Commercial District to 65,000 square feet and required a minimum lot size of thirty-five acres. The Plaza Commercial District consisted of an abandoned Two Guys Shopping Center, which was in a state of disrepair and had been vacant for fifteen years.

At the time the May 25, 2004 redevelopment plan was adopted, the Master Plan description of "Regional Business" use provided that "strategies that are dependent on massive new facilities are unlikely to succeed given what appears to be an overbuilt basic retail system. Smaller new facilities are likely to be a desirable part of the program, especially those providing support to existing neighborhoods." Although Council made revisions to the redevelopment plan at its May 25, 2004 meeting, none of those revisions eliminated the redevelopment plan's limitation on the size of "big-box" stores.

Some four months later, at its regular meeting on September 28, 2004, Council adopted a resolution designating Wal-Mart the redeveloper of the Plaza Commercial District. Before voting in favor of that resolution, Council entertained a presentation from a Wal-Mart representative, during which a conceptual plan for a 150,000 square foot store, with room for expansion, was presented. Council recognized, however, that Wal-Mart's plan to erect a 150,000 square foot store on a twenty-six acre lot was inconsistent with the Redevelopment Plan's provision that limited store size to 65,000 square feet and established a minimum acreage requirement of thirty-five acres. As a result, Council during that same meeting, adopted a resolution requesting the Planning Board to "review and recommend an amendment to the Redevelopment Plan so as to remove the thirty-five acre limitation and the 65,0000 square foot building limitation as outlined on page 43 of the Redevelopment Plan for Lot 15, Block 408." All four Council members in attendance at that portion of the meeting, including Councilman Forcinito, voted in favor of each resolution.

Thereafter, at its October 13, 2004 meeting, the Planning Board held a hearing to consider the matters referred by Council during its meeting on September 28, 2004. At that hearing, the City's Supervising Planner Kathleen Hicks explained that:

(1) The Master Plan designates the subject area as a Regional Business Zone, which is the "most intensive category in the retail portion of the Master Plan, one which is intended for large scale development, due to proximity to adjacent highways;"

(2) The Master Plan specifies a minimum of 50,000 square foot projects within the Regional Business Zone;

(3) The redevelopment plan establishes a prohibition on "big-box developments" in excess of 65,000 square feet;

(4) If the two requirements are blended, there is a "very narrow range" between 50,000 and 65,000 feet to build a large scale store;

(5) Because the Master Plan sets minimums rather than maximums, elimination of the minimum lot size and maximum store square footage provisions from the Re-development Plan would not be contrary to the Master Plan.

The meeting was then opened for public comment and three people spoke. One commenter limited his remarks to environmental issues. The second was plaintiff Anthony Albano, who urged Council to consider an Atlantic City Press article which, according to Albano, described how "Wal-Mart is crippling the State of California" because it has "so many peopled employed with no benefits" that the State had to "pick up the tab." The third was Nelson Albano who echoed the same themes discussed by his brother, again pointing to Wal-Mart's poor treatment of its employees and its failure to provide paid holidays or any health benefits. After some discussion by members of the Planning Board, by a vote of six in favor and none opposed, the Planning Board agreed to advise Council that the proposed amendments to the redevelopment plan were not in conflict with the Master Plan. Forcinito was present at that meeting in his capacity as the Council representative to the Planning Board. Forcinito cast one of the six votes in favor of that resolution, number 5255.

On May 10, 2005, Council adopted ordinance 2005-30, thereby amending the redevelopment plan (ordinance 2004-25), so as to:

(1) eliminate all maximum store square footage limitations, and (2) reduce the minimum lot area from thirty-five to twenty-five acres. One of the members voting in favor of that resolution, Councilman Forcinito, explained his vote by stating:

Well, we've given people the opportunity to hear all of the cons, everybody that was against it tonight, so I am not going to repeat all that. I have made a list of cons and pros and I'd like to go right into the pros, if I may.

Number 1. It will bring jobs to the City, 400. It will bring rateables back to the City for a continued growth; getting rid of an eyesore which has been vacant for thirteen years; the real potential for bringing more business and drawing more people to our downtown area, increased business to our eating establishments; an opportunity, a real opportunity to promote other sites in the area to business interests; and the fact that nine out of ten people that I've talked to about Wal-Mart opening are for it.

(Audience outcry)

They're, they're the unheard majority out there ladies and gentlemen.

(Audience outcry)

Hold on a minute.

Hold on.

I also took a survey of 20 of my employees - I have twenty employees, who will all shop at Wal-Mart when it comes in. I have a son who, for the last fifteen years, has worked at a Wal-Mart. He takes care of his family. He takes care of his family in a very nice manner. And I would like to say one thing before I cast my vote. I have never been called a thief. I have never been accused of taking payoffs, because if anyone ever did that they'd be in jail, and I can speak for the rest of the council members here as well. That never happened. My vote is yes.

At the same meeting, Council formally designated Wal-Mart Real

Estate Business Trust as the redeveloper for the Plaza

Commercial District.

When the City Clerk prepared the minutes of the May 10, 2005 meeting, he summarized the comments of the Council members made in support of their votes. The Clerk did not include in the minutes Forcinito's remarks about his son's employment at a Wal-Mart in Colorado, stating that he did not remember them at the time he prepared the minutes.

Plaintiffs filed a complaint in lieu of prerogative writs, contending that the adoption of the ordinance naming Wal-Mart the redeveloper of the site was arbitrary and capricious because of the conflict of interest presented by Forcinito's son's employment and because the councilman was unfamiliar with the Master Plan's provisions when he voted. Finally, they asserted that Ordinance 2005-30, which amended the redevelopment plan for Lot 15, was inconsistent with the Master Plan and therefore void.

After hearing oral argument on cross-motions for summary judgment, Judge Forester concluded that Brian Forcinito's cashier position with Wal-Mart did not present either an impermissible indirect pecuniary interest or a direct personal interest. The court also concluded that the adoption of the amendment to the Redevelopment Plan was not arbitrary, capricious or unreasonable and that there was no violation of the Open Public Meetings Act.

On appeal, plaintiffs raise the following claims: (1) the Court below erred in finding that Forcinito did not have a conflict of interest that required advance disclosure and/or recusal; (2) the adoption of ordinance 2005-30 was arbitrary, capricious, and/or unreasonable and the court below erred in holding otherwise; and (3) the City violated the Open Public Meetings Act when it omitted the statements of Forcinito from the minutes of the May 10, 2005 City Council meeting regarding his son's employment with Wal-Mart.

II

We have thoroughly reviewed Judge Forester's findings of fact and conclusions of law. On appeal, this court uses the same standard as employed by the trial judge. We decide first whether there was a genuine issue of fact. If there was not, we then decide whether the lower court's ruling on the law was correct. Prudential Property Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).

This appeal arises from the grant of summary judgment to defendants. Judge Forester correctly held that a party is entitled to summary judgment if there is no genuine issue as to any material fact in the record. R. 4:46-2. In deciding a summary judgment motion, the trial judge was required to apply the standard articulated by the Court in Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). Brill requires a motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged dispute in favor of the non-moving party. If not, summary judgment should be granted. Ibid.

Here, the facts are undisputed and are gleaned from the depositions of Councilman Forcinito, his son Brian and Brian's store manager at Wal-Mart, Greg Antl. The undisputed facts established that: Councilman Forcinito's son Brian is forty-five years old, has been emancipated for twenty-five years, and is married with children, living 1,500 miles away in Colorado; has been employed by Wal-Mart for fifteen years, fourteen of them as an hourly employee earning at present less than $16.00 per hour as a cashier; was promoted to customer service representative in 2001 and took a voluntary demotion nine months later back to the position of cashier on October 27, 2001, but retained the $0.50 per hour increase; sees his father once every two to three years and speaks to him once a month over the telephone; has no ambition to be anything other than a cashier; and has no intention of ever returning to New Jersey.

Additionally, in his deposition Antl stated that it was "not unusual" in 2001 for an employee to retain the $0.50 per hour increase even after taking a voluntary demotion. Further, the parties stipulated that Wal-Mart is the largest employer in the world employing 1.3 million associates in 5,000 stores in fifteen countries.

Councilman Forcinito testified at his deposition that he "may have told" his son of Wal-Mart's proposal to build a superstore in Vineland, but he "never gave [his son's employment] any consideration whatsoever when [he] voted." When asked why he mentioned his son's employment during the final Council meeting on May 10, 2005, he explained, "I got calls at home, threats, if I voted for it, comments to the effect that only scum go into Wal-Mart and only scum work there. And I may have even mentioned it when I voted that my son is not scum." He elaborated, stating, "The comments I made were in response to the threats that were yelled at me at the Council meeting that night and all the abuse I was taking at the time."

Having determined that there was no genuine issue of material fact, Judge Forester granted summary judgment, holding that plaintiffs failed to demonstrate that a conflict of interest by Councilman Forcinito requires the invalidation of Ordinance 2005-30. We agree.

Judge Forester correctly observed that whether or not a disabling conflict of interest exists is fact specific. Aldom v. Roseland, 42 N.J. Super. 495, 506 (App. Div. 1956). The Court has, however, identified four situations that always require disqualification:

(1) "Direct pecuniary interests" . . .

(2) "Indirect pecuniary interests," when a [public] official votes on a matter that financially benefits . . . a family member;

(3) "Direct personal interest," when an official votes on a matter that benefits . . . a relative . . . in a non-financial way, but is of great importance . . . and

(4) "Indirect personal interests," when an official votes on a matter in which [the official's] judgment may be affected because of membership in some organization and a desire to help that organization further its policies.

Wyzykowski v. Rizas, 132 N.J. 509, 525-26 (1993).

Judge Forester correctly rejected the claim that Councilman Forcinito had an "indirect pecuniary interest" or a "direct

personal interest" when he voted. The record is devoid of any evidence that Forcinito's vote in May 2005 benefited his son working at a Wal-Mart 1,500 miles away in Colorado. Brian Forcinito was a cashier when his father voted on May 10, 2005. He remained a cashier when the summary judgment motions were heard in March 2006. He has no aspirations to advance beyond the position of cashier. As Judge Forester observed:

The simple fact remains that Brian Forcinito, the son of Councilman James A. Forcinito, lives in Colorado is an hourly employee cashier at a Wal-Mart in that State. He earns less than $16.00 per hour. It strains common sense to conclude, as plaintiffs suggest, that this remote and nebulous interest of Councilman's Forcinito's son with Wal-Mart, which has 1.3 million associates in 5,000 stores in fifteen countries, would render the necessity for recusal, disclosure or void actions taken without same.

Councilman Forcinito's situation is strikingly similar to that of the councilman in Van Itallie v. Borough of Franklin Lakes, 28 N.J. 258 (1958). In that case, the councilman's brother worked for a company that intended to develop the subject property. The court rejected claims of a conflict of interest, stating:

We know of no case that has gone this far. The brother was employed by the . . . corporation long before this controversy arose. He is in the lower echelon of the personnel of a corporation that employs 700 persons. There is no evidence that his employment status will in any manner be enhanced by the passage of these ordinances.

[Id. at 268]

The Court provided examples of some situations that could constitute grounds for disqualification: "a substantial association, financial or otherwise, of an official's relative with an interested organization; promotion of a relative in the event of favorable municipal action; or the relative's participation in the request for favorable municipal action." Id. at 269. Judge Forester correctly held that none of those is present here. We agree with his finding that Brian Forcinito has not benefited from his father's official status. Like the Councilman's brother in Van Itallie, Brian's employment is a "circumstance . . . entirely too remote to be considered as tending improperly to influence the councilman's official judgment." Ibid.

Plaintiffs' effort to establish that there was a benefit to Brian Forcinito, resulting from his father's vote, lacks merit. They point to Brian's having retained the $0.50 per hour salary increase he received when he became a customer service representative even though he voluntarily stepped down from that position in October 2001. Plaintiffs' argument ignores the fact that these events transpired two years before Wal-Mart expressed interest in the Vineland site and two and one-half years before his father cast his first vote on the redevelopment plan in May 2004. Plaintiffs' argument also ignores Antl's testimony that it was not unusual in 2001 for an employee to retain his salary when voluntarily accepting a lesser job title, and that a cashier's salary of $15.84 per hour was not unusual for a long- standing employee, such as Brian Forcinito.

The two cases plaintiffs rely on in support of their claim of a financial benefit to Brian from his father's affirmative vote are inapposite. Both involve a strong connection between the application in question and the benefit to be bestowed on the council or board-member's family member. See Care of Tenafly, Inc. v. Tenafly Zoning Bd. of Adj., 307 N.J. Super. 362 (App. Div.) certif. denied, 154 N.J. 609 (1998), (board member was disqualified from vote on a grocer's application for a site fifty feet from the member's mother's commercial enterprise, which stood to benefit by approval); Barrett v. Union Twp. Comm., 230 N.J. Super. 195 (App. Div. 1989) (the potential for psychological influence on a board member whose mother lived in a nursing home next to the site of a proposed continued care community was too great because he probably wished his mother's nursing home services to continue, and might have feared some degree of reprisal if he voted against the proposal).

When compared to the circumstances presented in Tenafly and Barrett, Councilman Forcinito's son's connection to Wal-Mart's proposal was indeed "remote and nebulous," as Judge Forester properly found. His conclusion that plaintiffs failed to demonstrate a necessity for Forcinito's recusal or the voiding of the ordinance adopted is correct.

III

We next turn to plaintiffs' claim that the ordinance adopting the amendments to the redevelopment plan was arbitrary, unreasonable and capricious. They argue that because the redevelopment plan adopted by the City Council in May 2004 contained a minimum lot size and a maximum store size, that an amendment to change the requirements in May 2005 was arbitrary.

As Judge Forester correctly noted, an ordinance enjoys a strong presumption of validity. Zilinsky v. Zoning Bd. of Adj. of Verona, 105 N.J. 363, 368 (1987). Such presumption may only be overcome if an opponent of the ordinance establishes the ordinance is "clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning or the zoning statute." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 380 (1995). A zoning ordinance "must advance one of the fifteen general purposes of the Municipal Land Use Law (MLUL) specified in N.J.S.A. 40:55D-2." Ibid. Unquestionably, ordinance 2005-30, amending the Master Plan by eliminating the maximum square footage requirement and decreasing the minimum acreage requirement, furthered one of the enumerated MLUL goals by "provid[ing] sufficient space in appropriate locations for a variety of . . . commercial . . . uses . . . ." N.J.S.A. 40:55D-2g.

Additionally, the ordinance must be substantially consistent with the land-use plan element and the housing plan element of the Master Plan. Manalapan, supra, 140 N.J. at 380. If the Planning Board, as part of the consistency review mandated by N.J.S.A. 40A:12A-7e, determines that amendments to a redevelopment plan are not inconsistent with the Master Plan, such finding is "entitled to deference and great weight." Id. at 383.

Here, the Planning Board heard and considered the analysis and comments of its supervising planner Hicks who presented numerous reasons why the amendments to the redevelopment plan were not inconsistent with the Master Plan. Notably, she explained that eliminating the 65,000 square foot store size

from the redevelopment plan would not violate the Master Plan because the latter document specified a minimum, not a maximum, store size. Hicks further explained that reducing the minimum lot size in the Plaza Commercial District redevelopment plan from thirty-five acres to twenty-five acres was desirable because once the subject parcel was developed, the combined size of the remaining parcels could not satisfy a thirty-five acre minimum lot size requirement. Accordingly, the trial court's conclusion that the amendments to the redevelopment plan were not arbitrary and capricious finds substantial support in the record, especially in light of Hicks' testimony.

Moreover, plaintiffs' assertion that Council's adoption of the subject amendments to the redevelopment plan was arbitrary because the amendments were designed specifically to accommodate the Wal-Mart project also lacks merit. The Court has unequivocally held that there is nothing improper about such a practice. In Manalapan, the Court stated:

[t]hat a municipality may change its zoning ordinance during the pendency of a site plan application is beyond question. This is so even if the ordinance is amended in direct response to a particular application . . . . Because the enactment of, or amendment to, a zoning ordinance is a legislative act, the Township's governing body is permitted to enact an amendment in response to objections to a proposed use of land as long as the amendment is consistent with the Municipal Land Use Law.

[Id. at 378-79.]

We recognize that the amendment proposed and adopted in Manalapan, supra, was designed to prevent the use that was the subject of the pending application. We see no reason why the rule of Manalapan does not apply in the obverse.

The next argument advanced by plaintiffs in support of their claim that the adoption of the amendments to the redevelopment plan was arbitrary and capricious flows from a portion of Forcinito's testimony when he was deposed a year after the October 13, 2004 Planning Boarding Meeting. In that testimony he acknowledged that he "really [didn't] know whether the amendments were consistent with the Master Plan" when he cast his vote in favor of the consistency resolution during the October 13, 2004 meeting. Plaintiffs' argument ignores Forcinito's testimony that "when [he] voted in favor of that particular resolution, [he] did . . . understand what [he] was voting in favor of."

Plaintiffs' advance two other claims, that the failure of Councilwoman Sheftall to recuse herself earlier and the erasure or taping over of the audiotape of the October 13, 2004 Planning Board meeting, render Council's ultimate actions void. These contentions lack merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(A), (E).

Judge Forester concluded that none of the plaintiffs' arguments, either individually or collectively, overcome the presumption of validity which is afforded municipal action in adopting amendments to a redevelopment plan under Manalapan, supra. His findings and legal conclusions are correct, and plaintiffs have not advanced any meritorious reason to disturb them.

VII

Finally, plaintiffs assert that the adoption of the amendments to the redevelopment plan should be voided due to a violation of the Open Public Meetings Act (the Act), N.J.S.A. 10:4-6 to -21. The comments made by Councilman Forcinito during the May 10, 2005 City Council meeting were not placed in the minutes taken for that meeting. Plaintiffs argue that this violated the section of the Act requiring:

Each public body [to] keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public . . . .

[N.J.S.A. 10:4-14.]

"Reasonably comprehensible" does not mean "word for word recitation of every event or a verbatim detailing of every public comment or objection." Liebeskind v. Mayor and Mun. Council of Bayonne, 265 N.J. Super. 389, 400-01 (App. Div. 1993). Rather, N.J.S.A. 10:4-14 "simply requires that what took place at the meeting and what final action was taken should be reflected in the minutes." Id. at 401. The minutes satisfy the statutory requirement, and accordingly there was no violation of the Act. Therefore, Judge Forester properly held that Council did not violate the Act by failing to include Councilman Forcinito's comment about his son's employment at Wal-Mart.

Affirmed.

 

After Two Guys went out of business, the building was purchased by Jamesway, and later by Channel Home Stores. No commercial activity had occurred at the site after Channel closed its store.

While it would have been preferable for the councilman to disclose his son's status at the time of the September 28, 2004 Council meeting, rather than toward the end of the meeting of May 10, 2005, plaintiffs have cited no authority for the proposition that the delay in disclosure necessitates the voiding of a vote which is, in all other respects, proper.

(continued)

(continued)

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