DONALD NUCKEL, et al. v. NEW JERSEY MEDOWLANDS COMMISSION, ET AL.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4707-04T2

A-0428-05T2

DONALD NUCKEL, Individually and

as Managing Member of NORTH

VILLAGE I, L.L.C., NORTH VILLAGE

II, L.L.C. and GILBERT MANOR, L.L.C.,

and DONALD NUCKEL & COMPANY,

INC. (As Managing Agent For The

Aforesaid Person and Entities),

Plaintiffs-Appellants,

v.

THE NEW JERSEY MEADOWLANDS

COMMISSION and ANTHONY TROBIANO,

Individually, UNI REALTY, L.L.C.

and TT&C HOLDING CO., L.L.C.,

Defendants-Respondents.

 

Argued: May 30, 2006 - Decided:

Before Judges Fall, C.S. Fisher and Yannotti.

On appeal from the final administrative decision of the New Jersey Meadowlands Commission, File Number 04-376, and from the Superior Court of New Jersey, Law Division, Bergen County, Docket Number BER-L-3557-05.

John J. Lamb argued the cause for appellants (Beattie Padovano, attorneys; Mr. Lamb, of counsel, and Vanessa R. Elliott, on the brief).

Penny S. Ludman, Deputy Attorney General, argued the cause for respondent New Jersey Meadowlands Commission (Zulima V. Farber, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Ms. Ludman, on the brief).

Andrew T. Fede argued the cause for respondents Anthony Trobiano, Uni Realty, L.L.C. and TT&C Holding Co., L.L.C. (Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, attorneys; Mr. Fede, of counsel and on the brief).

PER CURIAM

In these consolidated appeals, plaintiffs Donald Nuckel, individually, and as managing member of North Village I, L.L.C., North Village II, L.L.C., and Donald Nuckel & Company, Inc. (Nuckel), appeal in A-4707-04T2 from a resolution adopted by the New Jersey Meadowlands Commission (NJMC) on March 29, 2005, granting bulk variances and a use variance to defendants Anthony Trobiano, UNI Realty, and TT&C Holding Co. LLC permitting the construction of senior housing in the Borough of Little Ferry, and from a second resolution of the NJMC adopted on April 27, 2005, denying their request for an administrative plenary hearing in the Office of Administrative Law (OAL) before an administrative law judge (ALJ).

In A-0428-05T2, plaintiffs appeal from orders entered in the Law Division on September 23, 2005, granting summary judgment to the defendants, dismissing their action in lieu of prerogative writs challenging the grant of the variances by the NJMC.

We affirm, concluding that the NJMC correctly determined that plaintiffs are not entitled to an administrative hearing in the OAL concerning their objections to the variance requests on the basis that plaintiffs do not have a statutory right to such a hearing nor do they have a particularized property interest affected by the variances that is sufficient to establish a constitutional right to an administrative plenary hearing. We further find that plaintiffs' substantive claims are without merit. We also affirm the Law Division order dismissing plaintiffs action in lieu of prerogative writs on the basis that this court not the Law Division has jurisdiction to consider and adjudicate plaintiff's appeal from the final agency decisions. See Infinity Broad. Corp. v. New Jersey Meadowlands Comm'n, ___ N.J. ___ (slip op. Jun. 27, 2006). The following factual and procedural history, and analysis informs our decisions.

The property in question is designated as Block 107, Lots 2.01 and 17, and Block 106.01, Lot 13.06 as shown on the tax map of the Borough of Little Ferry, and consists of 9.93 acres of vacant land. The subject property is bounded by Maiden Lane to the west, Dietrichs Street to the north, Gates Road to the northeast, McCabe Court to the southwest, and an unnamed right-of-way extending east from Mehrhof Road to the south. Additionally, the Hackensack River forms the property's eastern boundary, DePeyster Creek runs along its northeastern boundary, and an unnamed drainage ditch marks its southern boundary. The subject property is located within the Meadowlands District, see N.J.S.A. 13:17-4, within the Low Density Residential (LDR) Zone. The irregular shape and location of the property resulted in it having five "front" yards. The site is also encumbered by a ninety-foot-wide easement belonging to the Bergen County Utilities Authority.

The Hackensack Meadowlands Reclamation and Development Act, N.J.S.A. 13:17-1 to -86, created the Meadowlands District and the NJMC. The NJMC is a political subdivision of the State, vested with broad powers, see N.J.S.A. 13:17-6, including, but not limited to, the authority to regulate the use of land in the district through the adoption of a master plan, N.J.S.A. 13:17-9; to control the use of land within the district, N.J.S.A. 13:17-11; and to review and regulate subdivisions and land development in the district. The Legislature specifically subordinated municipal zoning power to the NJMC's master plan. N.J.S.A. 13:17-11(b) and -16(b).

The NJMC has adopted district zoning regulations, N.J.A.C. 19:4-1.1 to -8.16. In 2004, the regulations underwent substantial revision in several stages. Among other things, the regulations established eighteen zones including low density residential. N.J.A.C. 19:4-3.4(a)(1). The regulations also defined "senior housing" to mean

an age-restricted residential development where at least 80 percent of the units are occupied by at least one person who is 62 years of age or older with no permanent residents under the age of 18, and which may include accessory personal, health, recreational, financial, and transportation services for residents only.

[N.J.A.C. 19:4-2.2.]

In 2003, defendants Anthony Trobiano, UNI Realty, L.L.C., and TT&C Holding Co. L.L.C. (collectively, the "applicants") submitted an application to the NJMC for variances from the Meadowlands zoning regulations in connection with their proposal to construct senior housing on the subject property. The applicants also sought to consolidate the three lots into one. At the time of the application, Block 107, Lots 2.01 and 17, were located in the Light Industrial and Distribution "B" Zone. However, under the revised NJMC regulations, the entirety of the subject property fell within the Low Density Residential Zone.

The applicants proposed to construct a three-story, 117-unit residential development for senior housing with attendant parking. The development would be constructed on Block 107, Lot 2.01, and easements for access would be created on the other two lots.

A hearing on the applicants' original application was conducted on February 17, 2004. By that time, however, the NJMC's new regulations had been adopted. The applicants withdrew their initial application and, on July 9, 2004, the applicants filed new applications with the NJMC for the same project.

The July 9, 2004 application identified the property owners as Trobiano (Block 107, Lot 17, on Maiden Lane); UNI Realty (Block 107, Lot 2.01, on Industrial Avenue); and TT&C Holding Co. (Block 106.01, Lot 13.06, on Mehrhof Road). The applicants also sought a use variance from N.J.A.C. 19:4-5.26, which did not permit senior housing in the LDR zone.

On August 9, 2004, the NJMC completed its technical review of the application, and forwarded its comments to the applicants. Among other things, the NJMC advised that the proposed loading and refuse areas were located in front yards in violation of N.J.A.C. 19:4-8.3(b)(1) and N.J.A.C. 19:4-8.15(f)(3), respectively, and would have to be redesigned or bulk variances would have to be requested. The NJMC also required that the three lots be joined for purposes of zoning, which the applicant agreed to do if the application was granted.

On September 20, 2004, Joseph S. Mianecki, Jr., of Mianecki Consulting Engineers, responded on the applicants' behalf to the NJMC's comments. Mianecki advised that the project could not be redesigned to avoid front-yard loading and a front-yard refuse enclosure and, therefore, bulk variances would be needed.

On September 23, 2004, and September 24, 2004, the applicant submitted amended plans in support of the variance application. As amended, the applicants sought the following variances for the proposed project, as contained in the public notice, published on January 4, 2005:

1. N.J.A.C. 19:4-5.26, a use variance because senior housing is not a permitted use in the Low Density Residential Zone;

2. N.J.A.C. 19:4-8.3(b)1, a bulk variance, because this section does not permit loading areas in a front yard. The applicant proposed to locate the loading area adjacent to the building in the Dietrichs Street and Maiden Lane front yards, set back approximately 400 feet from Dietrichs Street and 200 feet from Maiden Lane; and

3. N.J.A.C. 19:4-8.15(f)3, a bulk variance, because this section does not permit refuse and recycling areas in the front yard. The application proposed to locate the refuse area adjacent to the building in the Dietrichs Street and Maiden Lane front yards, set back approximately 410 feet from Dietrichs Street and 220 feet from Maiden Lane.

The application specifically stated that the bulk variances would not

(i) adversely affect the rights of adjacent property owners; (ii) adversely affect the public health, safety, morals, order, convenience, prosperity or general welfare; (iii) have an adverse environmental impact; (iv) substantially impair the intent and purpose of the NJMC regulations; and (v) result in substantial detriment to the public good.

On January 10, 2005, Burgis Associates, Inc. submitted an updated project impact assessment report in support of the application. That report indicated that the applicants' goal was "to transfer the project" to the Bergen County Housing Authority for ownership and operation at an appropriate point in time. The report further noted that the Commission's development regulations provided that institutional uses were permitted in the District and that "income qualified residents would assist the Borough of Little Ferry in meeting its fair share obligation to provide low and moderate income housing." Because the necessary contractual agreements with the Bergen County Housing Authority could not be finalized until approvals were granted, the report presented a planning analysis wherein the proposed project was presented as a use variance request.

On January 21, 2005, the Commission held a public hearing on the proposed project and variance applications. After hearing testimony from the applicants and their experts, and from members of the public in opposition to the project, including plaintiffs, the record was closed. At that time, the NJMC's staff chief engineer stated that the NJMC had eight weeks to submit a written recommendation to the Board of Commissioners, and then the application would be placed on the next available agenda at the NJMC's monthly meeting.

On March 21, 2005, the NJMC's staff issued a twenty-six-page report, recommending approval of the requested variances. The report found that the proposed senior housing could be accommodated within one building on the site that met all setbacks, open space, and lot coverage requirements, while avoiding environmentally-sensitive areas. Generally, the report found:

(1) that strict application of the Commission's regulations would result in peculiar and exceptional practical difficulties, or undue hardship on the property owner;

(2) that the use and bulk variances would not result in substantial detriment to the public good or adversely affect the "public health, safety, morals, order, convenience, prosperity or general welfare[;]"

(3) that the use variance would not have a substantial impact on traffic in the area or the existing infrastructure, or have an adverse impact on the environment;

(4) that the bulk variances would not adversely affect the rights of neighboring property owners or residents;

(5) that the variances would not substantially impair the intent and purpose of the regulations; and

(6) that the variances would contribute to and promote the intent of the master plan.

The report then recommended approval of the use variance, with the condition that it comply with the definition of senior housing in N.J.A.C. 19:4-2.2, and unconditional approval of the bulk variances.

At its March 29, 2005 meeting, the NJMC unanimously approved Resolution Number 05-38, granting the application in accordance with the recommendations contained in the staff report.

On April 13, 2005, plaintiffs filed a notice of appeal with the NJMC from its adoption of Resolution Number 04-376, alleging:

(1) they were "neighboring" property owners/operators who were directly and adversely affected by the decision;

(2) the applicant did not establish that strict application of the Commission's regulations would result in exceptional practical difficulties or undue hardship to the property owners;

(3) that the application was incomplete because the applicants did not apply for a bulk variance for exceeding the maximum permitted density for town home use; and

(4) the notice requirements were not met because the applicant filed its impact assessment report on January 12, 2005, which was fewer than ten days prior to the date of the hearing.

Plaintiffs' appeal was based on N.J.A.C. 19:4-4.19, and the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136, and sought an administrative hearing in the OAL.

At its meeting held on April 27, 2005, the NJMC voted unanimously to deny plaintiffs a hearing in the OAL. In Resolution Number 05-56, memorializing its decision, the NJMC stated that plaintiffs had failed to establish that they had a particularized property interest sufficient to require a hearing on constitutional or statutory grounds. The NJMC found that plaintiffs were third parties who lacked the required interest to be granted a hearing.

On May 13, 2005, plaintiffs filed an appeal in this court from the administrative decisions of the NJMC, approving the application on March 29, 2005, and denying their request for a hearing in the OAL on April 27, 2005. That appeal was docketed as A-4707-04T2.

On that same date, plaintiffs filed a complaint in lieu of prerogative writs in the Law Division, docket number BER-L-3557-05, seeking judgment voiding the NJMC's approval, alleging that the NJMC had improperly failed to require any low or moderate income housing on the property or address the issue of affordable housing (count one); failed to consider other permitted uses in the zone (count two); the negative criteria had not been satisfied (count three); the approval improperly constituted an unlawful rezoning of the property (count four); the flooding issues had not been properly addressed (count five); the application should not have been granted on the grounds that this was a better planning alternative (count six); the applicants had failed to apply for a resubdivision (count seven); the NJMC had failed to consider the separate development of the three lots (count eight); the "rubber stamping" of the staff recommendation constituted arbitrary action (count nine); the NJMC had failed to have a timely completed application on file for inspection by the public (count ten); the approval was arbitrary, capricious and unreasonable because this age-restricted project does not constitute senior housing (count eleven); the NJMC had failed to notify plaintiffs and their counsel of the hearing date when it approved the application (count twelve); a density variance was required (count thirteen); and the actions of the NJMC were arbitrary and void (count fourteen).

On July 15, 2005, the applicants filed a motion in the Law Division seeking summary judgment dismissing plaintiffs' action on the grounds that plaintiffs' claims should have been asserted in this court, and there was already an appeal pending in which plaintiffs had already raised these issues. On or about August 22, the NJMC also filed a motion in the Law Division seeking summary judgment. On August 26, 2005, we issued an order denying plaintiffs' application for a stay of their appeal in A-4707-04T2 pending resolution of the Law Division action.

The summary judgment motions were argued in the Law Division before Judge Jonathan N. Harris on September 23, 2005. Judge Harris determined that plaintiffs' action did not properly lie in the Law Division and, since the identical issues were already pending in A-4707-04T2, there was "no benefit to transferring it to the Appellate Division because it's already there." On September 23, 2005, the judge issued orders granting summary judgment, dismissing the Law Division complaint.

On September 29, 2005, plaintiffs filed a notice of appeal from the Law Division orders in this court, docketed as A-0428-05T2. The appeals were consolidated by our order entered on November 1, 2005.

On appeal, plaintiffs present the following arguments for our consideration:

POINT I

THIS APPEAL MAY PROPERLY BE BROUGHT AS AN ACTION IN LIEU OF PREROGATIVE WRITS BECAUSE THE COMMISSION'S LAND USE AUTHORITY IS EXCERCISED ON A LOCAL BASIS.

POINT II

THE PLAINTIFFS HAVE STANDING TO CHALLENGE THE LOCAL LAND-USE DECISIONS OF THE COMMISSION.

POINT III

THE COMMISSION SHOULD BE REQUIRED TO CONSIDER AND IMPLEMENT MOUNT LAUREL BECAUSE IT IS ACTING LIKE A LOCAL ZONING AGENCY.

POINT IV

THE COMMISSION IMPROPERLY DELEGATED ITS AUTHORITY TO ISSUE A VARIANCE TO ITS STAFF.

POINT V

THE COMMISSION SHOULD HAVE PROVIDED NOTICE TO THE PLAINTIFFS OF THE MEETING AT WHICH IT MADE ITS DECISION TO GRANT THE VARIANCES.

POINT VI

THE COMMISSION IMPROPERLY ENGAGED IN A REZONING WITHOUT FOLLOWING THE APPLICABLE STATUTORY PROCEDURES FOR A REZONING.

POINT VII

THE STAFF'S RECOMMENDATION, AND THE COMMISSION'S DECISION, TO GRANT USE AND BULK VARIANCES WAS NOT BASED UPON SUBSTANTIAL EVIDENCE AND WAS NOT ADEQUATELY EXPLAINED.

POINT VIII

THE COMMISSION SHOULD HAVE REQUIRED THE APPLICANT TO APPLY FOR A RESUBDIVISION PRIOR TO SEEKING A VARIANCE.

POINT IX

THE STAFF'S RECOMMENDATION, AND THE COMMISSION'S DECISION, FAILED TO ADEQUATELY CONSIDER AND ADDRESS THE FLOODING ISSUES.

I.

Plaintiffs first argue they had standing to request an adjudicatory hearing in the Office of Administrative Law (OAL). The NJMC denied plaintiff's request for such a hearing on the basis that they lacked the required interest under the Administrative Procedures Act, N.J.S.A. 52:14B-3.1 to -3.3.

Specifically, the NJMC concluded that plaintiffs failed to establish they had a "particularized property right" and, even if they did, failed to show they would be damaged by the proposed development. The NJMC also found that plaintiffs only had a generalized property right, one shared with other members of the community. Moreover, the NJMC noted that plaintiffs had been provided an opportunity to be heard during the public hearings on the application, explaining:

Counsel for the appellant commented generally that they did not believe the applicant met the criteria for a variance and, in addition, required an additional variance based on the density for townhouses. Counsel did not present any comment or information to show that the appellant's particularized property rights would be damaged by the proposed development.

When an administrative determination is quasi-adjudicative, such as here, a reviewing court must determine whether the findings were supported by credible evidence in the record, "with 'due regard' for assessments of witnesses of witness credibility and for agency expertise where pertinent." Infinity Broad. Corp. v. New Jersey Meadowlands Comm'n, 377 N.J. Super. 209, 224-25 (citing Riverside Gen. Hosp. v. New Jersey Hosp. Rate Setting Comm'n, 98 N.J. 458, 468 (1985)), aff'd in part, rev'd in part on other grounds, ___ N.J. ___ (slip op. Jun. 27, 2006). Because agencies have the specialized expertise to enact regulations dealing with technical matters, great deference is owed to an agency's interpretation and enforcement of its rules implementing the statute for which it is responsible. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89 (2004); Riverside Gen. Hosp., supra, 98 N.J. at 469. However, we are not bound by the agency's interpretation of a statute nor its determination of a strictly legal issue. Mayflower Sec. Co. v. Bureau of Sec., Div. of Consumer Affairs, 64 N.J. 85, 93 (1973).

Standing typically requires a party to have a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, as well as a substantial likelihood of some harm in the event of an unfavorable decision. County of Camden v. Board of Trs., Pub. Employees Ret. Sys., 170 N.J. 439, 449 (2002); In re Six Month Extension of N.J.A.C. 5:91-1 et seq., 372 N.J. Super. 61, 85 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005). Standing is not automatic, and a litigant usually lacks standing to assert the rights of a third party. In re Six Months Extension, supra, 373 N.J. Super. at 85 (citing Spinnaker Condo. Corp. v. Zoning Bd. of City of Sea Isle City, 357 N.J. Super. 105, 111 (App. Div.), certif. denied, 176 N.J. 280 (2003)).

We take a liberal approach in this State on the issue of standing to seek review of administrative decisions, see County of Camden, supra, 170 N.J. at 448, particularly with respect to standing in land use cases. In re Six Month Extension, supra, 372 N.J. Super. at 86 (holding that trade organization and loose affiliation of housing, environmental, and regional planning organizations had standing to challenge the decision of the New Jersey Council on Affordable Housing that granted extension of municipalities' substantive certification status pursuant to the New Jersey Fair Housing Act, N.J.S.A. 52:27D-301 to -329).

However, even if a party has "standing" to obtain review of an agency's decision, there is no automatic right to a plenary hearing before an agency unless that party can establish a statutory or constitutional right to the hearing. In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452, 463 (2006); Spalt v. New Jersey Dep't of Envtl. Prot., 237 N.J. Super. 206, 212 (App. Div. 1989), certif. denied, 122 N.J. 140 (1990). The Administrative Procedure Act (APA) codified the rules determining whether a third party has the required interest to be granted an appeal to the OAL. See N.J.S.A. 52:14B-3.1 to -3.3. The APA expressly prohibits a "third party" from appealing a permit decision to the OAL unless that person "has [a] particularized interest sufficient to require a hearing on constitutional or statutory grounds." N.J.S.A. 52:14B-3.2(c). Thus, the APA does not create a substantive right to an administrative hearing. In re License of Fanelli, 174 N.J. 165, 172 (2002). That right "generally must be found outside the APA in another statute or constitutional provision[.]" Ibid. (quoting Christ Hosp. v. Department of Health & Senior Servs., 330 N.J. Super. 55, 61 (App. Div. 2000)).

Plaintiffs argue they have an interest in the litigation because of their status as residents of the Borough of Little Ferry, property owners in the Borough, the largest taxpayers of the Borough, and as a developer affected by the lack of affordable housing in the Borough. Plaintiffs further argue that if the NJMC is permitted to avoid its Mount Laurel obligations, a disproportionate share of the burden to provide affordable housing will be placed on them and others who own substantial amounts of property in the non-NJMC controlled areas of the Borough.

Although plaintiffs have standing to advance their own interests before the NJMC in this land use dispute, the Court has made clear that housing rights of low and moderate income persons can be asserted only by the persons themselves, by public interest organizations representing their interests or by developers offering to build affordable housing. Alexander's Dep't Stores of N.J., Inc. v. Borough of Paramus, 243 N.J. Super. 157, 165 (App. Div. 1990), aff'd in part and remanded in part, 125 N.J. 100 (1991). Plaintiffs lack standing to charge the Borough with failure to meet its Mount Laurel obligations simply by virtue of being taxpayers or neighboring landowners. Ibid. Specifically, plaintiffs lack a sufficient stake in the outcome to enforce the Mount Laurel rights of others and cannot claim protection against zoning that unconstitutionally deprives others of housing opportunities. Ibid. Moreover, there is nothing in the record to suggest that plaintiffs were offering to build affordable housing on the property.

Even if plaintiffs have standing to advance their own interests, there is no statutory or constitutional basis to grant their request for an adjudicatory hearing in the OAL. The NJMC has authority to exercise zoning control over the district. Infinity Broadcasting, supra, ___ N.J. at ___ (slip op. at 6-7); Meadowlands Regional Redev. Agency v. State, 63 N.J. 35, 46 (1973). The Act also authorizes the NJMC to adopt its own procedures for reviewing variance applications. N.J.S.A. 13:17-13.

N.J.A.C. 19:4-4.14 sets forth the procedures to be followed by an applicant seeking a variance from a particular zoning regulation. Specifically, N.J.A.C. 19:4-4.14(b) provides that an application for a variance must be made to the NJMC along with an application for a zoning certificate prepared in accordance with N.J.A.C. 19:4-4.3.

Although any adversely-affected person or entity may appeal a variance recommendation by the NJMC staff through the OAL pursuant to N.J.A.C. 19:4-4.19(b), the regulations do not provide a right to an administrative hearing that would be in contravention of N.J.S.A. 52:14B-3.1 through -3.3. N.J.A.C. 19:4-4.19(g). Thus, plaintiffs would be entitled to an OAL hearing only if they were not a "third party" within the intent of N.J.S.A. 52:14B-3.2(c). In re Amico/Tunnel Carwash, 371 N.J. Super. 199, 210 (App. Div. 2004). The Legislature explicitly recognized that third parties who have no particularized property interests or who are not directly affected by a permitting decision should not be permitted to "appeal" that decision, because to do otherwise "would give rise to a chaotic unpredictability and instability that would be most disconcerting to New Jersey's business climate and would cripple economic development in our State." N.J.S.A. 52:14B-3.1(c). Because the Act governing the NJMC does not grant a right to a hearing to an objector to a variance application, plaintiffs clearly do not have a statutory right to a hearing before the OAL. In re Amico/Tunnel Carwash, supra, 317 N.J. Super. at 210-11.

To establish a constitutional right to a hearing, an individual must show (1) that there is a genuine dispute of material fact, and (2) that he or she has a constitutionally protected interest. Cunningham v. Department of Civil Serv., 69 N.J. 13, 18-19 (1975). The party affected by the administrative action must have a safeguarded interest; that is, a particularized property right or other special interest must exist. Id. at 24.

Here, plaintiffs fail to raise any genuine disputes as to material facts. Moreover, the record is scant as to plaintiffs' property interests. In its resolution, the NJMC noted that plaintiffs were not property owners within 200 feet of the subject property, and had not provided any information as to the specific location of their properties. In Spalt, supra, 237 N.J. Super. at 212, we explained that "[f]ear of damage to one's . . . generalized property rights shared with other property owners is insufficient to demonstrate a particularized property right[.]" In In re Amico/Tunnel Carwash, supra, 371 N.J. Super. at 204, we found that the challenging adjacent landowners did not have a particularized property interest sufficient to require a hearing in the OAL on constitutional grounds because the asserted impact increased traffic congestion from the proposed car wash was "similar to the impacts commonly experienced by owners of property in the vicinity of any proposed new development[;]" therefore, we concluded that the landowners were third parties under the APA. Id. at 210-11 (citing N.J.S.A. 52:14B-3.2). More recently, in In re Freshwater Wetlands Statewide Gen. Permits, supra, 185 N.J. at 456, the Supreme Court affirmed our decision that neighbors who challenged a permit issued by the Department of Environmental Protection had no statutory or constitutional right to a hearing in the OAL because their claim of increased flooding was too speculative to establish a property right.

Here, plaintiffs failed to provide any authority in support of their argument that the NJMC's failure to comply with its Mount Laurel obligations with respect to the subject property caused damage to their property interests. Moreover, plaintiffs have failed to argue that their rights in this matter are more significant than those alleged property interests that our courts have already identified as too speculative. Accordingly, plaintiffs have failed to establish that they have anything other than a generalized property interest that they shared with other members of the community.

We also conclude that since plaintiffs had an opportunity to be heard at the public hearing on the variance application and the subject hearing on their "appeal," their rights to due process as third-party property owners was met. See High Horizons Dev. Co. v. State of N.J., Dep't of Transp., 120 N.J. 40, 52 (1990) (holding that a third-party property owner's due process right to be heard could be met by opportunities that are less than trial-type hearings).

Accordingly, we conclude that the NJMC correctly denied plaintiffs an administrative hearing in the OAL.

II.

We next consider plaintiffs' argument that the Law Division erred in dismissing their complaint in lieu of prerogative writs challenging the NJMC's decision to grant the variances for the applicants' senior housing project. Specifically, plaintiffs contend that the matter should have been first heard in the Law Division to properly create a record for appellate review.

The Law Division concluded that our decision in Infinity, supra, 377 N.J. Super. 209, was inapplicable because plaintiffs had also filed an appeal in this court seeking equivalent relief. At the time this matter was heard in the Law Division, the Supreme Court had granted certification to review the scope of appellate jurisdiction in respect of an appeal from the decision of a state agency. 185 N.J. 264 (Sept. 7, 2005).

On June 27, 2006, the Court issued its unanimous opinion, specifically addressing "the question whether an appeal from a decision of the New Jersey Meadowlands Commission . . . lies directly in the Appellate Division of the Superior Court or in an action in lieu of prerogative writs in the Law Division of the Superior Court." Infinity Broad. Corp., supra, ___ N.J. at ___ (slip op. at 4). The Court rejected the contention that because the NJMC had exercised an inherent local function, i.e., land use approvals, the "single locality" exception applied, requiring that an appeal from the NJMC's exercise of its land use authority be filed in the Law Division. Id., slip op. at 16. In disavowing the "single locality" exception, the Court stated, in pertinent part:

[C]onsonant with our constitution's grant of appellate jurisdiction to the Appellate Division, N.J. Const. art. VI, 5, 2 ("Appeals may be taken to the Appellate Division of the Superior Court . . . in such other causes as may be provided by law."), we reaffirm the appeals route provided in our Rules of Court, R. 2:2-3(a)(2), and we reject the "single locality" exception to that Rule.

That conclusion clarifies the scope of appellate review of state agency actions and is entirely in accord with the general practice in respect of state agencies. . . .

In sum, we see no basis to differentiate between those matters as to which Appellate Division jurisdiction clearly lies, from those matters remitted to the Law Division under the "single locality" exception. On the contrary, that inconsistency underscores our concern that the "single locality" exception generates unnecessary confusion when a straightforward rule of appellate review would suffice. Therefore, we jettison the "single locality" exception to the broad rule that lodges appellate jurisdiction from the actions of state agencies in the Appellate Division.

To the extent, then, that the Appellate Division holds that appellate review of the Meadowlands Commission's actions lie in that court, the judgment of the panel is affirmed. However, we reject the panel's reasoning and conclude that "because [the Meadowlands Commission's] land use authority is exercised on a local basis, its actions in that regard must be challenged in a proceeding in lieu of prerogative writs filed in the Law Division." Infinity Broad Corp. v. N.J. Meadowlands Comm'n, supra, 377 N.J. Super. at 230. We reaffirm once more the basic tenet of appellate jurisdiction that, save for condemnation or inverse condemnation actions, appeals from state agency actions lie in the Appellate Division.

[Id., slip op. at 18-20.]

In light of this holding by the Court, we reject plaintiffs' contention that the Law Division erred in declining jurisdiction to entertain their action in lieu of prerogative writs. We are also satisfied that the record developed in the NJMC is adequate to permit meaningful appellate review. Accordingly, we now consider the substantive arguments presented by plaintiffs.

III.

Plaintiffs contend that the NJMC erred by granting variances without consideration of its responsibility to encourage affordable housing. Specifically, plaintiffs argue that the NJMC failed to recommend any low- and moderate-income housing component to the proposed development even though the subject property is one of the "last large open developable spaces left in a Borough that has scarce property resources and substantial housing needs."

This claim is without merit. As we have noted, plaintiffs do not have standing to assert the housing rights of low- and moderate-income persons because they are not public-interest organizations representing their interests nor are they developers offering to provide for low- or moderate-income housing. Alexander's Dep't Stores of N.J., Inc., supra, 243 N.J. Super. at 165.

Although neither the NJMC's resolution approving the variances nor its staff recommendation addressed the issue of affordable housing, the staff report did recognize the need for senior housing, and stated that the proposed use was consistent with the objective of the NJMC's master plan to encourage the development of housing for persons aged fifty-five and older. The staff report further acknowledged that the applicant had approached the Bergen County Housing Authority to take over the project, in which case the proposed use would be permitted as a special exception under the definition of "institutional use." See N.J.A.C. 19:4-5.27(a)(4).

At the February 2004 public hearing on the variance application, plaintiffs questioned how many of the proposed units would be deed restricted for low- and moderate-income persons. In response, counsel for the NJMC provided the following explanation:

Okay. As far as the Mount Laurel, as far as the senior citizen housing, the Mount Laurel decision and through COAH, the Council on Affordable Housing, if there's a requirement that has to be met, then they have to meet it. Do I know whether this application needs to meet that requirement? No. I don't have the answer to that. But if they have to meet it through . . . the town requirements, then they will have to meet it.

Neither plaintiffs nor their attorney raised the Mount Laurel issue at the subsequent hearing on the variance application in January 2005, or at the hearing in April 2005.

The Legislature expressly subordinated municipal zoning power in the Meadowlands District to the NJMC's master plan. N.J.S.A. 13:17-11(b); In re Egg Harbor Assocs. (Bayshore Centre), 94 N.J. 358, 369 (1983). Consistent with those powers, the NJMC recognized the importance of affordable housing by promulgating regulations that provide, in pertinent part:

The NJMC encourages the development of residential uses in accordance with . . . (COAH) guidelines. The municipality may satisfy its COAH responsibility with any residential development in the District. The NJMC will accept petitions for rezoning from municipalities seeking to rezone land in the District to meet their COAH obligations and processed in accordance with N.J.A.C. 19:3. Applications for variances to allow density increases to meet COAH obligations shall also be considered and proceed in accordance with N.J.A.C. 19:4-4.14.

[N.J.A.C. 19:4-3.8.]

However, the NJMC does not identify the need for affordable housing as one of the enumerated purposes of its district zoning regulations. N.J.A.C. 19:4-1.2. Moreover, the regulations for use and bulk variances do not require the NJMC to deny a variance application based on its Mount Laurel obligations or to make findings of fact regarding the same. N.J.A.C. 19:4-4.14.

Nonetheless, plaintiffs rely on Burgis's planning report dated January 10, 2005, to argue that the Borough has not met its obligation, as determined by COAH, to provide fifty-one affordable housing units and, therefore, assert that the NJMC should have required a low- and moderate-income housing component to the proposed development or, at the least, considered the issue. In their brief, however, plaintiffs acknowledge that Burgis's report also stated:

Ownership and operation of the proposed development by the Bergen County Housing Authority would require that the units be occupied by income qualified residents. The 116 units would provide residences for age qualified low and moderate income residents, thereby assisting the borough in satisfying its affordable housing obligation.

The Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to -329, created COAH and endowed that agency with the powers to define low- and moderate-income housing needs statewide and regionally. N.J.S.A. 52:27D-302; Tocco v. New Jersey Council on Affordable Housing, 242 N.J. Super. 218, 220-21 (App. Div.), certif. denied, 122 N.J. 403 (1990), cert. denied, 499 U.S. 937, 111 S. Ct. 1389, 113 L. Ed. 2d 446 (1991). The FHA also empowered COAH to determine whether a municipality's proposed ordinances and planning steps satisfied its Mount Laurel obligations. Id. at 221.

There is no statutory nor regulatory authority for the NJMC to impose a similar requirement on a private developer of senior housing. Indeed, plaintiffs rely solely on an unpublished Law Division case, Tomu Dev. Co. v. Borough of Carlstadt, BER-L-5895-03 (Law Div. Nov. 10, 2005), to argue that the NJMC abrogated its Mount Laurel housing obligations by failing to require the applicant to include an affordable housing component.

In Tomu, supra, slip op. at 2-3, the Law Division addressed the issue of whether two Bergen County municipalities had engaged in patterns of exclusionary zoning that violated the New Jersey Constitution and the FHA. The Law Division concluded that the municipalities had failed to comply with their Mount Laurel obligations and that the NJMC "implicitly fostered the long-standing municipal failures through its benign neglect of the housing needs of the poor." Id. at 3-4.

First, we note that R. 1:36-3 provides:

No unpublished opinion shall constitute precedent or be binding upon any court. Except for appellate opinions not approved for publication that have been reported in an unauthorized administrative law reporter, and except to the extent required by res judicata, collateral estoppel, the single controversy doctrine or any other similar principle of law, no unpublished opinion shall be cited by any court. No unpublished opinion shall be cited to any court by counsel unless the court and all other parties are served with a copy of the opinion and of all other relevant unpublished opinions known to counsel including those adverse to the position of the client.

Although plaintiff's counsel has complied with that portion of R. 1:36-3 requiring filing and service of the Tomu case, none of the exceptions in that rule permit us to consider same. Certainly, an unpublished Law Division opinion has no controlling or precedential value.

Notwithstanding, plaintiffs' reliance on the reasoning contained in Tomu is misplaced. In Tomu, the plaintiff had sought a builder's remedy to allow its waterfront land to be developed with non-age-restricted housing, including affordable rental units. Supra, slip op. at 3. Here, plaintiffs are acting as third-party objectors not developers who challenge an application by a private developer to build age-restricted housing. Additionally, in Tomu, the plaintiff contended that the municipalities had violated their constitutional duty to construct their fair share of the region's needs for affordable housing. Id. at 10-11. Here, plaintiffs did not raise such a constitutional challenge, and there is no evidence in the record as to the Borough's fair share obligations. Moreover, in Tomu, the property in question was located in an area zoned by the NJMC as most suitable for recreational uses not, as here, residential uses which the law Division found had served to aid and abet the municipalities "turning blind eyes to the plight of the poor." Id. at 6-7, 12. Here, the property was zoned low density residential, and even the applicants' planner recognized that if the project became owned and operated by the Bergen County Housing Authority, units for income-qualified residents would be required.

Accordingly, there is no merit to plaintiffs' argument that the NJMC must be ordered to reconsider its grant of the variances in light of its Mount Laurel obligations.

IV.

Plaintiffs further argue that the NJMC improperly delegated its authority to consider and grant the variances to its staff by "rubber-stamping" the staff recommendations without conducting any further hearing or engaging in any discussion of the staff report. This argument is without merit.

Although it is certainly clear that the Act did not confer upon the NJMC the authority to delegate to its staff the power to grant a variance, see In re Amico/Tunnel Carwash, supra, 371 N.J. Super. at 214, here, on March 29, 2005, the NJMC unanimously adopted Resolution No. 05-38, which recited that the NJMC had approved the variances after reviewing the "full record," including its staff recommendation, the transcripts of the public hearings, the applicants' submission, and all written public comments.

In In re Amico/Tunnel Carwash, we found that the NJMC had never voted on the variance application. Here, the NJMC's Board of Commissioners specifically voted to approve the variances after considering the full record. Id. at 212. Simply stated, approving the application for the reasons set forth in the report of its staff did not constitute a delegation of the NJMC's authority.

V.

Plaintiffs contend their due process rights to notice and opportunity to be heard were violated because they did not receive written notice of the March 29, 2005 meeting, and were not provided with an opportunity to comment on the staff's recommendations prior to NJMC action on the variances. These contentions are also without merit.

Upon receipt of a staff recommendation, the NJMC is required to transmit copies and provide notification of the next meeting consistent with its regulations, which provide in pertinent part:

(i) The NJMC staff shall transmit a copy of the report to the applicant via certified mail. The applicant may appeal the recommendation in accordance with N.J.A.C. 19:4-4.19.

(j) After the appeal period, the NJMC staff shall transmit a copy of the report to the Board of Commissioners for review. The matter shall be placed on the agenda of the next available scheduled meeting of the Board of Commissioners in accordance with statutory notice requirements.

(k) The NJMC staff shall notify the applicant, via certified mail, of the date of the meeting of the Board of Commissioners at which the variance request will be decided.

(l) The Board of Commissioners shall decide, by a concurring vote of a majority of its members, to grant or deny the variance requested, based upon the record of the matter.

[N.J.A.C. 19:4-4.14(i) through (l).]

The variance regulations require a public hearing on the application, which was properly noticed and held by the NJMC on January 21, 2005, after which the public record was formally closed. N.J.A.C. 19:4-4.14(d) and -4.14(g). As noted above, at that point, the regulations required only that the NJMC provide the applicant with a copy of the staff report, that only the applicant may appeal the recommendation, and that only the applicant is entitled to written notice of the date of the meeting at which the NJMC will decide the variance request. N.J.A.C. 19:4-4.14(i), -4.14(k).

Additionally, at the close of the January 21, 2005 hearing, the NJMC's chief engineer informed the public about the time table for the Board's decision-making process, stating:

Okay. Just so that the public is aware of what the next step is, this Commission has eight weeks to render a written recommendation on this application. From that point, the recommendation will go to the Board of Commissioners, and it will be scheduled for the next available--after eight weeks, the next available agenda of Commission meetings. There's a Commission meeting once a month. It's usually the last week of the month. So, there will not be a decision on this for several months, just so you don't expect one to come out right away.

The regulations did not require the NJMC to give plaintiffs an opportunity to comment on the staff recommendations. See N.J.A.C. 19:4-14(i). Plaintiffs had notice of, and a full opportunity to be heard concerning, the variance application at the January 21, 2005 hearing, including the cross-examination of the applicants' witnesses by plaintiffs' attorney, and the making of a full presentation to the Board.

VI.

Plaintiffs further argue that the NJMC's decision to approve the use variance should be reversed because the NJMC exceeded its authority and had engaged in impermissible rezoning. Plaintiffs contend that the use variance was not consistent with the district's master plan and zoning regulations. They further assert that the NJMC improperly granted the use variance based largely on the applicants' claim that the property's soft soil required the use of pilings that would be easier to install for one large building than for multiple, smaller dwellings even though other lands in the district shared the same soil conditions. Plaintiffs also contend that the NJMC engaged in improper rezoning by adopting its staff's recommendation that senior housing was a "better planning alternative for the use of the site."

The NJMC concluded that the use variance conformed with the standards for an application as set forth in N.J.A.C. 19:4-4.14(e), and approved it with the condition that it comply with the definition of senior housing in N.J.A.C. 19:4-2.2. Moreover, the NJMC concurred with its staff's recommendation that the property had "many physical conditions" resulting in exceptional practical difficulties in the property's development, including: its irregular shape, with property lines that contained multiple angles; the ninety-foot Bergen County Utilities Authority easement bisecting the property's eastern portion which prevented the location of any structures within the easement area; the large size of the property in comparison with other lots in the Low Density Zone; its soft soil which promoted compact development to minimize soil disturbance; and the required buffers from three waterways.

The applicable zoning regulations provide that the NJMC may grant a variance provided that it satisfies the criteria set forth in N.J.A.C. 19:4-4.14. Here, the NJMC found that the strict application of its regulations would result in practical difficulties given the property's unique physical conditions. Although senior housing was not a permitted use, the NJMC adopted its staff's recommendations that

in this specific location, due to the large land area of the site, the physical development constraints of the lot (drainage facilities and utility easements), and the site's location between low-density residential development and industrial uses, the proposed senior housing use provides a better planning alternative for the use of the site than the permitted uses in the zone.

Moreover, the NJMC determined that the proposed senior housing would contribute to and promote the intent of the master plan by providing a balanced mix of housing types and promoting the development of clustered or higher-density housing.

We conclude that the NJMC did not exceed its authority by conditionally approving the use variance as a viable planning alternative for the site. The NJMC did not find that the property was inappropriately zoned; rather, it found that the property's unique characteristics made senior housing a better use.

VII.

Plaintiffs next contend that the NJMC's decision to grant the variances was not supported by substantial, competent evidence in the record. This contention is without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(D). The analysis in the staff report, the documentation submitted concerning the variance application, the evidence produced at the public hearing, and the resolution adopted by the Board, collectively constituted substantial evidence supporting the conclusions reached by the Board in approving the variances.

We also note that plaintiffs' contention that the applicants' expert witnesses provided inadmissible net opinions is presented for the first time on appeal, as it was not raised during the hearings, nor did plaintiffs' counsel previously object to the admissibility of the experts' testimony and reports at the hearing. Courts generally decline to consider issues not properly presented at the hearing being scrutinized, except in exceptional circumstances. See New York SMA v. Board of Adj. of Twp. of Weehawkin, 370 N.J. Super. 319, 341 (App. Div. 2004). Here, there is an absence of exceptional circumstances. Notwithstanding, contrary to plaintiffs' assertions, the NJMC regulations governing variances do not require the applicant to present testimony on the feasibility of developing the site for "all" permitted uses, or that the NJMC consider the feasibility of those uses. N.J.A.C. 19:4-4.14.

VIII.

Plaintiffs assert that the NJMC erred by not requiring the applicants to apply for a "resubdivision" pursuant to N.J.A.C. 19:5-3.1 and -5.3(a), because the applicants sought a variance for three parcels of land comprising 9.93 acres. This argument is without merit.

The NJMC required the applicants to join the three lots as a zoning lot of record. N.J.A.C. 19:4-3.22 authorizes the establishment of a zoning lot of record to utilize two or more lots as a united parcel.

On December 15, 2003, the applicants signed a declaration of zoning lot of record for the three contiguous parcels. The declaration specifically provided that "[i]n any future application for development, the single Zoning Lot of Record designation shall be used as the basis of calculating all NJMC zoning requirements regardless of whether such application pertains to improvements proposed on one or more of the Lots." The declaration also provided that all development applications to the NJMC concerning the property shall be made on behalf of an association consisting of all the owners and that any decision of the NJMC on future development applications shall be binding on the association as well as the entity or person filing the application. Therefore, there was no requirement for the applicants to apply for a subdivision, the purpose of which is the merger or division of two or more lots into one or more lots. N.J.A.C. 19:5-3.1.

IX.

Lastly, plaintiffs argue that the NJMC erred by failing to adequately consider and address the issue of flooding, by not requiring the applicants to resolve any flooding problems at their expense. The basis of their argument is that the applicants were required to comply with the regulations governing subdivisions, which state that no land subject to flooding may be subdivided unless the subdivider or owner of the land "agree[d] to install at his own expense improvements meeting the standards and requirements of the NJMC." N.J.A.C. 19:5-7.3.

This argument is without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E). The applicants filed a zoning lot of record and, therefore, were not required to apply for resubdivision. Additionally, plaintiffs lack standing to assert flooding claims on behalf of third parties. In re Six Month Extension, supra, 372 N.J. Super. at 85. More significantly, the record discloses that the NJMC heard testimony from the public and received documentary and testimonial evidence from the applicants' experts relating to flooding concerns and drainage calculations. The NJMC's chief engineer also made it clear that "upon development of the site, the grading will be done in a manner to move the water away from this particular site." Moreover, plaintiffs failed to provide any proof that flooding will actually occur after the area is developed.

X.

To the extent we have not specifically addressed plaintiffs' remaining arguments, we find they are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed in both appeals.

 

The New Jersey Meadowlands Commission was originally named the Hackensack Meadowland Development Commission, and acquired its current name effective August 27, 2001. See L. 2001, c. 232, 2, codified at N.J.S.A. 13:17-3.1.

The project included 116 one-bedroom units and one three-bedroom unit for the caretaker.

South Burlington County N.A.A.C.P. v. Township of Mount Laurel, 67 N.J. 151, appeal dismissed and cert. denied, 423 U.S. 808, 96 S. Ct. 18, 46 L. Ed. 2d 28 (1975) (Mount Laurel I); South Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158 (1983) (Mount Laurel II).

There, we stated that "[n]otwithstanding the Commission's existence as a State agency, because its land use authority is exercised on a local basis, its actions in that regard must be challenged in a proceeding in lieu of prerogative writs filed in the Law Division." Id. at 230.

Moreover, we note that the Law Division's opinion in Tomu is currently on appeal and we express no opinion here on the correctness of that decision.

Footnote continued on next page.

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August 8, 2006