ROBERT KREBS v. THE CITY OF LONG BRANCH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2057-10T2

ROBERT KREBS,

Plaintiff-Appellant,

v.

THE CITY OF LONG BRANCH, a

New Jersey Municipal Corporation,

Defendant-Respondent.

___________________________________

December 16, 2011

Argued September 14, 2011 - Decided

Before Judges Axelrad, Sapp-Peterson and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1316-10.

Peter Dickson argued the cause for appellant (Potter and Dickson, attorneys; Mr. Dickson, on the brief).

Robert Beckelman argued the cause for respondent (Greenbaum, Rowe, Smith and Davis, L.L.P., attorneys; Mr. Beckelman, on the brief).

PER CURIAM

Plaintiff, Robert Krebs, appeals the trial court order granting summary judgment to defendant, City of Long Branch ("City"), and dismissing his complaint arising out of his challenge to the City's adoption of the January 2010 Ordinance and Resolution approving a redevelopment project in an area known as Beachfront South. Plaintiff also appeals the denial of his summary judgment motion. In granting summary judgment to defendant, Judge Lawrence Lawson found plaintiff failed to exhaust his administrative remedies, his action was time barred, and his substantive challenges to the ordinance were unsupported by the law. In denying summary judgment to plaintiff, Judge Lawson found that plaintiff's substantive arguments were not only irrelevant, since plaintiff had failed to exhaust his administrative remedies, but the contentions were either lacking in merit or not ripe for summary judgment. We affirm.

Plaintiff is the owner of a single-family home in Beachfront South. He purchased the property in 2000, four years after the City adopted its Oceanfront-Broadway Redevelopment Plan ("Plan"), which included the Beachfront South area. Plaintiff purchased the property "with the intention of residing in it, improving it or redeveloping it consistent with normal municipal land use laws and ordinances." At the time, he was aware the property was located in an area designated as in-need-of-redevelopment. His property, although in need of repairs, was nonetheless habitable.

The in-need-of-redevelopment designation resulted from adoption of the Plan in 1996. Notwithstanding its adoption and the City's subsequent entry into an agreement with a developer to implement the Plan, redevelopment has not occurred. There have, however, been a number of amendments to the Plan, including a January 26, 2010 resolution amending and supplementing Chapter 345-10 of the City's land use ordinances to clarify the design guidelines for redevelopment zoning in the Beachfront South sub-area, which area included plaintiff's property. This resolution followed a number of discussions between Beachfront South property owners and the City's planning team. The resolution specified that existing structures not in conformity with redevelopment guidelines may remain non-conforming, but any additions to those structures required compliance with certain conditions.

On January 27, 2010, the City adopted Resolution No. 10-10, eliminating the use of eminent domain for the Beachfront South redevelopment sub-area. The resolution indicated the City had "determined that an overwhelming majority of property owners now wish to develop and/or sell their properties within the development rights and restrictions spelled out in the City's Redevelopment Design Guidelines[.]" The resolution stated further that "eminent domain shall not be used for property acquisition in the Beachfront South" sub-area.

On March 12, 2010, plaintiff filed a complaint and jury trial demand1 alleging one count of "invalid and unconstitutional blight and in[-]need[-]of[-]redevelopment designation"; a second count claiming "unconstitutional use of power authorized by [the] blighted areas clause"; a third count charging "illegal use of local redevelopment and housing law"; a fourth count challenging, as unconstitutional, the "in[-]need[-]of[-]redevelopment designation"; and a fifth count alleging "unconstitutional unequal treatment of private redevelopers and residents." Plaintiff sought a declaration that his property, as well as the Beachfront South Area, are "not 'blighted' or 'in need of redevelopment,'" and an order vacating that designation. Plaintiff also sought to "[e]njoin the City from exercising any powers of the [LRHL2] with respect to the [property] or the Beachfront South Area[,]" as well as damages and other relief as the "interests of justice may require."

The City filed an answer denying the allegations in the complaint and asserting affirmative defenses, including statute of limitations, laches, estoppel, and plaintiff's failure to exhaust his administrative remedies. Both sides subsequently moved for summary judgment.

In support of the City's motion, Howard H. Woolley, Jr. ("Woolley"), Business Administrator, certified that over a one-year period, beginning in August 2008, the City held public hearings with Beachfront South property owners to discuss concerns about the Plan. As a result of those meetings, the City "determined that the major concern of Beachfront South property owners was the potential use of eminent domain" and that "their interests in the use and value of their properties [were] better served by maintaining the . . . Plan zoning[.]" Woolley stated that at the final November 2009 meeting, "plaintiff (and plaintiff alone) expressed his disagreement." Woolley also indicated that after the City adopted the January 2010 resolution and ordinance, "the City and Planning Board . . . approved a redevelopment project in Beachfront South for the development of [eleven] townhome units" and the City entered into negotiations with developers interested in pursuing projects. Woolley stated further that plaintiff "never made any proposals to the City to develop the [p]roperty and has never submitted any applications for development approvals to the City." Krebs did not dispute that he failed to submit any applications for development approval.

Judge Lawson issued a written opinion and order granting the City's motion and denying plaintiff's motion. In granting relief to the City, the judge first found that plaintiff lacked standing to initiate an action pursuant to Rule 4:69 because he failed to exhaust his administrative remedies and also failed to raise an "actual" and "justiciable claim." Specifically, the judge noted that plaintiff failed to present any "tangible evidence" of any development plans he pursued in connection with his property, the City's knowledge of these plans, and any action by the City precluding plaintiff from going forward with his plans on the basis that they were inconsistent with the redevelopment scheme.

Judge Lawson additionally concluded that "because [p]laintiff has not taken any action with respect to his property which could have led to an adverse administrative determination by the City, he has failed to establish the existence of a justiciable claim for adjudication and therefore lacks standing[.]" Further, the judge reasoned that because plaintiff failed to demonstrate "how the City's alleged unconstitutional actions caused any actual injury[,]" the record was devoid of any "compelling argument that 'irreparable harm' would result if the exhaustion requirement of [Rule] 4:69-5 is enforced."

The court similarly rejected plaintiff's claim that adoption of the 2010 Resolution and Ordinance resulted in an unconstitutional deprivation of the reasonable use and enjoyment of his property:

Plaintiff fails to demonstrate how his use of the property has in any way been restricted or otherwise affected, as he has never sought to develop the property and has never approached the City with plans for development. In addition, when the City adopted the Ordinance and Resolution at issue, the zoning of the Beachfront South area continued to reflect the same zoning that was in effect when [p]laintiff purchased the property in 2000.

Likewise, the court rejected plaintiff's contention that there were no administrative remedies available to pursue beyond waiting until he expends funds to "'put together a very expensive and very detailed application to the City and gets turned down.'" The court explained that by presenting a "proposal for development that was rejected by the governing authority because it could not meet the exacting standards for redevelopment in Beachfront South, [p]laintiff could have at least identified an adverse administrative determination upon which to base his challenge."

While recognizing that our Supreme Court stated in Lyons v. City of Camden, 52 N.J. 89, 99 (1968), that "a declaration of blight ordinarily adversely affects the market value of property involved," Judge Lawson concluded that this statement "must be considered in the context of the Court's subsequent declaration that a municipality may not designate an area as blighted and then fail to effectuate a redevelopment plan with reasonable dispatch." The judge noted that the City had not abandoned its redevelopment plans, as had been done in Lyons. He noted further there was no evidence that the properties near plaintiff's property had been boarded up, as were the circumstances in Washington Market Enterprises Inc. v. City of Trenton, 68 N.J. 107 (1975), also cited by plaintiff in opposition to defendant's motion.

The court additionally found that plaintiff was not entitled to relief based upon procedural grounds. Specifically, plaintiff filed his prerogative writs action beyond the forty-five-day time limit set forth under Rule 4:69-6(a), and the complaint failed to raise "constitutional questions or matters of important public interest such that an enlargement [was] warranted." Further, the court found no merit to plaintiff's contention that because the notice to property owners in connection with the original 1996 in-need-of-redevelopment designation was defective, his action was not untimely and, therefore, he was entitled to present his proofs demonstrating that the designation was improper in the event condemnation proceedings are ever initiated. Judge Lawson observed that the triggering event, to which the time bar would not apply, would be the initiation of condemnation proceedings, which he found "entirely absent here." Moreover, Judge Lawson noted that "the City has in fact adopted an Ordinance and Resolution foreclosing the City from further exercise of its eminent domain powers."

In response to plaintiff's claim that his prerogative writs action was timely because it was filed within forty-five days of the 2010 Resolution and Ordinance, the court stated that the "thrust of [p]laintiff's challenge concerns the original redevelopment designation of the Ocean Avenue property, which dates back fourteen years." As such, the court concluded that it would "not allow [p]laintiff to bootstrap his claims against the redevelopment designation on the basis that the complaint was filed within forty-five days of the Resolution and Ordinance[.]"

Next, the court concluded that plaintiff failed "to demonstrate that his complaint raises important issues affecting the public." The court pointed to the absence of a challenge from any other affected party of the redevelopment designation and noted there was no evidence before the court that "the challenged redevelopment designation will result in the expenditure of public funds or have some similarly detrimental effect on the public" or that his challenges "reflect the general sentiments of the property owners in Beachfront South."

Turning to plaintiff's substantive arguments in support of his summary judgment motion, the court found that plaintiff's substantive challenges were irrelevant in light of its determination that plaintiff had failed to exhaust his administrative remedies, failed to present a justiciable controversy, and filed an untimely prerogative writs action. The court nonetheless considered the arguments and found them lacking in merit or not ripe for summary judgment.

First addressing plaintiff's claim of collateral estoppel, the court noted that the unpublished decision in Cottage Emporium, Inc. v. Broadway Arts Center, Nos. A-0048-07, A-4415-07, A-4416-07 (App. Div. Apr. 16, 2010), upon which plaintiff relied to advance his constitutional challenges, limited its holding to the constitutional infirmities surrounding the Broadway Corridor of the City, not Beachfront South. Second, the court determined that under N.J.S.A. 40A:12A-8, "a municipality may acquire land by eminent domain in order to effectuate its redevelopment plan, but is in no way compelled to do so[,]" and that "[a] municipality's authority under the LRHL to designate an area as in[-]need[-]of[-] redevelopment is akin to the typical zoning authority vested in zoning boards of adjustment." Third, the court rejected plaintiff's claim that he was entitled to summary judgment as a matter of law in connection with his claim that the 2010 Resolution and Ordinance were arbitrary and capricious, as well as his claim that defendant violated his right to equal protection. The court found that such claims were based upon supported facts and that the "viability" of those claims was immaterial because plaintiff failed to exhaust his administrative remedies, failed to present a justiciable controversy, and the action was time-barred. The present appeal followed.

On appeal, plaintiff raises the following arguments for our consideration.

II. THE LOCAL REDEVELOPMENT AND HOUSING LAW CANNOT BE USED AS A "SUPER LAND USE LAW[";] THE CITY OF LONG BRANCH CANNOT DESIGNATE AN AREA AS BLIGHTED OR IN NEED OF REDEVELOPMENT AND THEN REFUSE TO REDEVELOP THE AREA, WHICH ECONOMICALLY IMPRISONS PROPERTY OWNERS.[3]

A. MUNICIPAL LAND USE LAW IS INTENDED TO GIVE PROPERTY OWNERS "CONSISTENCY, UNIFORMITY AND PREDICTABILITY."

B. THE REDEVELOPMENT LAW GIVES MUNICIPALITIES SWEEPING AND LARGELY UNREVIEWABLE POWERS, AIMED AT TRULY BLIGHTED AREAS.

C. LONG BRANCH'S REDEVELOPMENT PLAN GIVES THE CITY SWEEPING DISCRETIONARY POWERS, FAR IN EXCESS OF THOSE IN THE MLUL.[4]

III. THE LOWER COURT'S RULING CONFLICTS WITH THE SUPREME COURT'S DECISIONS IN LYONS V. CAMDEN AND WASHINGTON MARKET ENTERPRISES V. [CITY OF] TRENTON IN ALLOWING THE BEACHFRONT SOUTH AREA TO BE DESIGNATED AS "BLIGHTED" OR "IN NEED OF REDEVELOPMENT," AND THEN DOING NOTHING TO REDEVELOP THE AREA FOR OVER A DECADE.

IV. THE CITY IS ESTOPPED FROM CONTENDING THAT THE STUDY THAT DESIGNATED BEACHFRONT SOUTH AS BLIGHTED IS VALID.

V. THE LOWER COURT ERRED IN CREATING AN UNPRECEDENTED REQUIREMENT TO "EXHAUST ADMINISTRATIVE REMEDIES" WHEN NO SUCH ADMINISTRATIVE REMEDIES EXIST.

VI. THE LOWER COURT ERRED IN REFUSING TO EXTEND THE FORTY[-]FIVE[-]DAY PERIOD FOR CHALLENGING THE BLIGHT DESIGNATION AS APPLIED TO BEACHFRONT SOUTH.

VII. RESOLUTION 10- 10 AND ORDINANCE 25-09 ARE ARBITRARY AND CAPRICIOUS: THEIR ONLY PURPOSES ARE TO MAINTAIN A DEGREE OF CONTROL OVER PROPERTIES IN BEACHFRONT SOUTH THAT IS INCONSISTENT WITH LAND USE LAW AND TO PREVENT ANY CHALLENGES TO THE REDEVELOPMENT AREA DESIGNATION.

VIII. IT IS A DENIAL OF EQUAL PROTECTION TO USE REDEVELOPMENT POWERS TO CONTROL LAND USES IN A MANNER INCONSISTENT WITH THE MUNICIPAL LAND USE LAW.

IX. IT IS A DENIAL OF EQUAL PROTECTION TO GRANT REDEVELOPERS BETTER CONTRACTS THAN TAXPAYING RESIDENT HOMEOWNERS.

We have carefully considered each of plaintiff's arguments in the context of the entire record and in light of the briefs, oral argument, and applicable legal principles. We reject each of the arguments advanced and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed by Judge Lawson in his comprehensive November 16, 2010 written decision to which we have referred extensively throughout this opinion. We add the following brief comments related to the nature of the cause of action asserted by plaintiff.

Because the factual record before the motion judge here was largely undisputed, we focus our discussion upon the motion judge's legal determination. We accord no deference to the motion judge's conclusions on issues of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div. 2008); Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007). We, nonetheless, are in complete agreement with Judge Lawson's conclusion that plaintiff's action was time-barred and that plaintiff set forth no basis for enlargement of the time period in which to bring an action in lieu of prerogative writs.

Moreover, we note plaintiff commenced this proceeding not as an action in lieu of prerogative writs, but as an action seeking declaratory relief from the City's "refusal to vacate the designation of 'blighted' despite its unconstitutionality[.]" A declaratory judgment action is appropriate when the controversy presented is actual and bona fide:

Stated somewhat differently, declaratory judgment is not an appropriate way to discern the rights or status of parties upon a state of facts that are future, contingent, and uncertain. "It is clear that relief by way of a declaratory judgment should be withheld when the request is in effect an attempt to have the court adjudicate in advance the validity of a possible [claim or] defense in some expected future law suit." By the same token, "the declaratory judgment procedure may not be used to prejudge issues that are committed for initial resolution to an administrative forum, any more than it may be used as a substitute to establish in advance the merits of an appeal from that forum."

[Indep. Realty Co. v. Twp. Of N. Bergen, 376 N.J. Super. 295, 302 (App. Div. 2005) (citations omitted).]

Here, as Judge Lawson correctly observed, plaintiff may have purchased the property with the intention to develop it, but he never filed any application with the appropriate government official or board seeking approval to develop the property. Thus, plaintiff is unable to demonstrate any harm to his property rights resulting from the in-need-of-redevelopment designation for the Beachfront South area. Nor may plaintiff claim that his ability to develop his property has been adversely affected by any municipal decision affecting his property rights. Plaintiff purchased the property aware of the in-need-of-redevelopment designation, and since that time, the only municipal action taken affecting his property was adoption of the 2010 Resolution and Ordinance, memorializing the City's decision not to commence condemnation proceedings for properties in the Beachfront South area.

As such, any right plaintiff claims has been violated as a result of his property being located in an area designated as in-need-of-redevelopment is purely speculative and not ripe for adjudication through a declaratory judgment action. Additionally, because administrative remedies are available to plaintiff, declaratory relief may not be used to supplant that process. Indep. Realty Co., supra, 376 N.J. Super. at 302.

Affirmed.

1 Plaintiff's complaint is not referred to as a complaint in lieu of prerogative writs.

2 Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73.

3 Point I is entitled "Standard of Review."

4 Municipal Land Use Law, N.J.S.A. 40:55D-1 to -129.