MARY ANNE DALESSIO v. TOWNSHIP OF UPPER DEERFIELD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3128-10T3

MARY ANNE DALESSIO and

PROVIDENT DEVELOPMENT, LLC.,

Plaintiffs-Appellants,

v.

TOWNSHIP OF UPPER DEERFIELD,

Defendant-Respondent.

_________________________________

December 16, 2011

 

Submitted November 28, 2011 - Decided

 

Before Judges Sabatino, Ashrafi and Fasciale.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-21-10.

 

Patrick F. McAndrew, attorney for appellants.

 

Baker, Krell, Haag & Bertram, LLC, attorneys for respondent (Rebecca J. Bertram, on the brief).

PER CURIAM

Plaintiffs Mary Anne Dalessio and Provident Development, LLC (Provident) appeal from a January 19, 2011 order dismissing the portion of their complaint in lieu of prerogative writs alleging (1) that the Township of Upper Deerfield (the Township) wrongly denied plaintiffs' requested adjournment of a public hearing and second reading of Ordinances 642 and 643 (the ordinances), and (2) that the ordinances contravene the designation of solar energy facilities as an "inherently beneficial use" under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. We affirm.

Plaintiff Dalessio owns a tract of approximately one hundred acres located within the Township s redevelopment plan. Plaintiff Provident sold an equally large tract just prior to the Township adopting the ordinances, has developed and owned property in Upper Deerfield in the past, and intends to do so again in the future.1

In 2009, the Township drafted two ordinances to amend its redevelopment plan and zoning code. On September 17, 2009, the Township referred the ordinances to its planning board, which found the ordinances not inconsistent with the Township s master plan. At a regular meeting on October 29, 2009, the Township held a first reading of the ordinances and scheduled a second reading and public hearing for November 19, 2009. On November 5, 2009, the Township mailed notice of the scheduled second reading to plaintiffs and other interested parties, and on November 7, 2009 published notice in local newspapers.

At the November 19, 2009 hearing, the Township passed the two ordinances. Ordinance 642 amended the Township's redevelopment plan, and Ordinance 643 added sections to the Township's zoning code entitled "Solar and Wind Energy Generating Facilities, and Communication Facilities"2 and "Renewable Energy Facilities."3 Together, the ordinances restrict where solar energy facilities can be built and impose construction requirements.

At the hearing, the Township also acknowledged that Dalessio's attorney had written a letter requesting "a modest extension" of the hearing in order "to fully consider and address the impact of the zone change." After considering the request, the Township voted to proceed without adjournment. The Township's attorney stated:

[W]hile the Township committee has the authority to carry the public hearing, I just want you to know that if you do so, it's my opinion that all of the notices, including all of the certified mailings would have to be done again.

 

Now, that's a considerable effort on the part of the Township and it would also have to be published again. So there's nothing I see in the correspondence which indicates any specific objection except they're asking for a "modest extension[."] I don't know that we could do it before the next Township meeting. And it would require a very significant expenditure of Township resources to go through the same notification process.

 

And I did confer with [the planning director] earlier tonight as to whether my interpretation of the notice provisions was consistent with his own that we would have to completely notice again with all the certified mailings and all of the publications and I believe he concurs with me that it would be[,] if not required, certainly advisable.

 

On January 4, 2010, after the ordinances passed, plaintiffs filed a complaint in lieu of prerogative writs, alleging that (1) procedural defects occurred because the Township did not grant an adjournment; (2) the ordinances are contrary to state and federal law and public policy, including the MLUL's recent inclusion of solar energy facilities as an "inherently beneficial use"; and (3) the amendments lack a rational substantive basis and proper enabling authority. Plaintiffs sought judgment that the ordinances4 were "illegal, void and unenforceable." On February 2, 2010, the Township filed an answer.

Following completion of discovery, plaintiffs filed a "motion for judgment," including a memorandum of law, exhibits, and a certification of Richard Ragan, a member of Provident and offered as an expert in land use planning. The Township submitted opposition and a certification of Roy Spoltore, the Township's administrator and clerk. Plaintiffs then submitted additional certifications from Ragan and Dalessio.

The judge heard oral argument and rendered a written decision disposing of all claims and defenses.5 On January 19, 2011, the judge entered an order for judgment in plaintiffs' favor, granting in part6 and denying in part the requested relief, and dismissing the complaint. Plaintiffs appeal and defendants filed no cross-appeal.

The principles of review of land use decisions are well-known. Municipalities have authority to enact ordinances pursuant to the police power. N.J. Shore Builders Ass'n v. Twp. of Jackson, 199 N.J. 38, 54 (2009) (quoting Hutton Park Gardens v. Town Council of W. Orange, 68 N.J. 543, 564 (1975)). However, police-power legislation must not be unreasonable, arbitrary, or capricious. Id. at 54-55 (quoting 515 Assocs. v. City of Newark, 132 N.J. 180, 185 (1993)).

We review municipal ordinances as presumptively valid. Id. at 55 (citing Brown v. City of Newark, 113 N.J. 565, 571 (1989)). The presumption places a heavy burden on any party challenging an ordinance. Hutton Park Gardens, supra, 68 N.J. at 564. We presume "factual support for the legislative judgment," and "absent a sufficient showing to the contrary, [we assume] that the statute rested 'upon some rational basis within the knowledge and experience of the Legislature.'" Burton v. Sills, 53 N.J. 86, 95 (1968) (quoting Reingold v. Harper, 6 N.J. 182, 196 (1951)), appeal dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969). The challenger must provide "'proofs that preclude the possibility that there could have been any set of facts known' or assumed to be known by the drafters that would, in the exercise of reason and common sense, have allowed them to conclude that the enactment would advance the interest sought to be achieved." N.J. Shore Builders Ass'n, supra, 199 N.J. at 55 (quoting Hutton Park Gardens, supra, 68 N.J. at 565). Thus, on review, we neither "weigh the evidence for or against an enactment," nor "evaluate the wisdom of the policy choice made." Id. at 55-56 (citing Hutton Park Gardens, supra, 68 N.J. at 565).

Further, the Supreme Court has pointed out that "[g]enerally, a zoning ordinance must satisfy certain objective criteria." Riggs v. Twp. of Long Beach, 109 N.J. 601, 611 (1988).

First, the ordinance must advance one of the purposes of the Municipal Land Use Law as set forth in N.J.S.A. 40:55D-2. Second, the ordinance must be "substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements," N.J.S.A. 40:55D-62, unless the requirements of that statute are otherwise satisfied. Third, the ordinance must comport with constitutional constraints on the zoning power, including those pertaining to due process, equal protection, and the prohibition against confiscation. Fourth, the ordinance must be adopted in accordance with statutory and municipal procedural requirements.

 

[Id. at 611-12 (citations omitted).]
 

Here, plaintiffs first contend that the ordinances are void because the Township did not adjourn its hearing. They argue that they did not have enough time to prepare and consult counsel, and that the Township's attorney incorrectly advised the Township that adjournment would require republishing and re-mailing of notices. We disagree.

We begin by pointing out that plaintiffs received ten days notice pursuant to N.J.S.A. 40:55D-62.1. In relevant part, the requirement provides that "[n]otice of a hearing on an amendment to the zoning ordinance proposing a change to the classification or boundaries of a zoning district . . . shall be given at least 10 days prior to the hearing by the municipal clerk to the owners of all real property[.]" Plaintiffs do not dispute that the Township gave proper statutory notice.

As such, we disagree with plaintiffs' argument that there was inadequate time to consult counsel. They rely on Woodland Civic Association v. Brick Homes, Inc., 144 N.J. Super. 78, 86 (Law Div. 1976), wherein the court stated that "[t]he right to representation by counsel carries with it the right to a reasonable time to engage counsel and to prepare opposition to a pending application for a variance." However, the Woodland decision "is not to be construed as a mandate that requests for continuances must be granted in all instances, but only where it appears that the request is meritorious; that denial would probably be prejudicial to an interested party[;] and that depending on the overall facts, denial would probably constitute arbitrary and capricious action by the board." Cox & Koenig, New Jersey Zoning & Land Use Administration, 27-4.1 (2011).

Moreover, Woodland involved circumstances "far more complex than those present in most variance proceedings." Woodland, supra, 144 N.J. Super. at 88. The request in that case "was timely and could not be considered made for obstructionist purposes." Id. at 87. Moreover, the plaintiff was a civic organization facing difficulties "in calling its members, scheduling a meeting[,] and collecting the funds necessary to hire an attorney," and the zoning board had given no reason for denying the request, other than its compliance with the ten-day notice requirement of N.J.S.A. 40:55D-62.1. Ibid.

We also disagree with plaintiffs' argument that they did not have enough time to prepare. Plaintiffs contend that Dalessio's "practical involvement in the new ordinances essentially began on November 19[, 2009,] the day her attorney asked for a continuance," and they press the fact that Dalessio lived in New York. (Emphasis original). They rely on Witt v. Borough of Maywood, 328 N.J. Super. 432 (Law Div. 1998), aff d o.b., 328 N.J. Super. 343 (App. Div. 2000). However, in Witt, the court found that an adjournment should have been granted because "the objectors were surprised by the order of proceedings sprung upon them at the last minute." Id. at 454. Here, plaintiffs allege no surprises; nor do they dispute that they received ten days notice in compliance with N.J.S.A. 40:55D-62.1.

Finally, plaintiffs argue that the Township's attorney misadvised the Township that adjournment would require reissuing notices. However, the attorney also advised that even if the statute did not so require, redoing notices was "certainly advisable" and "would require a very significant expenditure." To the contrary, Dalessio's attorney gave no reason for requesting adjournment other than wanting more time.

In sum, we conclude, as did the Law Division judge, that the Township's decision to deny plaintiff's request for an adjournment was not arbitrary, unreasonable or capricious.

Next, we consider plaintiffs' argument that the ordinances constitute "impermissible fiscal zoning." Plaintiffs contend that the Township passed the ordinances because solar uses provide an insufficient tax ratable. They further argue that the ordinances contradict public policy and the MLUL's recent designation of solar energy facilities as an "inherently beneficial use." These arguments are unpersuasive.

On November 20, 2009, after the Township passed the ordinances, the New Jersey Legislature amended the MLUL to include "solar or photovoltaic energy facility or structure" as an "inherently beneficial use." N.J.S.A. 40:55D-4; N.J.S.A. 40:55D-7. N.J.S.A. 40:55D-4 defines "inherently beneficial use" as "a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare." N.J.S.A. 40:55D-7 now provides that a "solar or photovoltaic energy facility or structure" serves "the purpose of supplying electrical energy produced from . . . solar, or photovoltaic technologies, whether such facility or structure is a principal use, a part of the principal use, or an accessory use or structure."

In particular, plaintiffs contend that Ordinance 643 sets "onerous bulk requirements . . . based solely on fiscal, rather than planning, grounds." In relevant part, Ordinance 643 provides:

A. The parcel shall be a minimum of twenty

(20) contiguous acres.

 

. . . .

 

C. Setbacks - Renewable Energy Facilities

shall comply with the following minimum

setback requirements:

 

(1) The minimum setback from an

adjoining Right-of-Way-Line based

on the Functional Classification

shall be as follows:

(a) Local Roads - 100 feet

(b) Collector Road - 500 feet

(c) Arterial Road - 1,000 feet

 

(2) The minimum setback from all other

property lines shall be one

hundred (100) feet.

. . . .

. . . .

 

E. Renewable Energy Facilities shall not

exceed the following heights:

(1) Solar panels fifteen (15) feet.

. . . .

 

F. Renewable Energy Facilities shall, based

on their impervious surface area, be

calculated as a percentage of lot

Coverage. The percentage of lot Coverage

attributable to Renewable Energy

Facilities shall not exceed fifty (50)

percent.

Plaintiffs' "motion for judgment" included a certification of Ragan, plaintiffs' identified expert. The Law Division judge found that the certification was "a net opinion and offer[ed] nothing more than the unsupported assertion that the bulk requirements are unreasonable." See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011) (holding that an expert's bare opinion without support in factual evidence or similar data is a mere net opinion and may not be considered). The judge also found that, "[i]n contrast, the certification of Roy Spoltore, the Township Administrator and Clerk[,] lays out the history and reasons behind the Code and Plan as well as the amendments." In sum, the judge stated:

It would be inappropriate to invalidate the [Township's] Code and Plan in their entirety. I find no procedural defects in the adoption of the Code and Plan or their amendments. While solar farms are an inherently beneficial use[,] they are subject to reasonable regulation. Plaintiffs have failed to overcome their burden to establish that the regulations here are unreasonable under the arbitrary, unreasonable and capricious standard.

After review of the record and the parties' arguments, we find no basis to disturb these findings. The judge properly took into account the legislature s recent designation of solar facilities as inherently beneficial uses, but justifiably concluded that the restrictions contained in the ordinances did not conflict with the new statutory provisions. N.J. Shore Builders Ass'n, supra, 199 N.J. at 55. We add that the record is devoid of evidence of improper fiscal motives on the Township's part.

We conclude that plaintiffs' remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

1 The trial court found that Provident had standing in this case pursuant to the MLUL's broad definition of "interested party." N.J.S.A. 40:55D-4. The finding is not in issue on appeal.

2

Ordinance 643 defines "Solar Energy Generating Facility" as "a solar energy system and all associated equipment which converts solar energy into a usable electrical energy, heats water or produces hot air or other similar function through the use of solar panels."

3

Ordinance 643 defines "Renewable Energy Facility" as "a facility that engages in the production of electric energy from solar technologies, photovoltaic technologies, or wind energy." (Emphasis in original).

4 Pursuant to Rule 4:9-2, the judge amended plaintiffs' complaint to the extent that it purported to challenge only the ordinances, stating that "a full reading of the [c]omplaint, briefs and argument of counsel clearly establish[es] that the plaintiffs' intent was to attack the Code and Plan Provisions in their entirety in light of the New Jersey Supreme Court decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 [N.J.] 344 (2007)."

5 The Township presented a defense that Dalessio had not exhausted her administrative remedies, R. 4:69-5, by seeking a use variance pursuant to N.J.S.A. 40:55D-70d. Rule 4:69-5 provides that "[e]xcept where it is manifest that the interest of justice requires otherwise, actions [in lieu of prerogative writs] shall not be maintainable as long as there is available a right of review before an administrative agency which has not been exhausted." The Law Division judge found that plaintiffs' case "involve[d] questions of law as opposed to . . . factual finding[s] by an administrative agency" and therefore relaxed the exhaustion rule in the interest of justice. R. 1:1-2.

6 The order grants plaintiffs' request to invalidate the Township's designation of Dalessio's property within the redevelopment area. The parties do not appeal this aspect of the order.