KANE PROPERTIES, LLC v. CITY OF HOBOKEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

KANE PROPERTIES, LLC,

Plaintiff-Appellant,

v.

CITY OF HOBOKEN and CITY OF

HOBOKEN CITY COUNCIL,

Defendants-Respondents.

_____________________________

June 30, 2015

Argued April 14, 2015 - Decided

Before Judges Reisner, Koblitz, and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3395-10.

Arnold K. Mytelka argued the cause for appellant (Kraemer Burns, P.A., attorneys; Mr. Mytelka and John A. Avery, on the briefs).

Ronald D. Cucchiaro argued the cause for respondents (Weiner Lesniak LLP, attorneys; Mr. Cucchiaro, of counsel and on the brief; Richard Brigliadoro, on the brief).

PER CURIAM

Plaintiff Kane Properties, LLC appeals from a December 24, 2013 trial court order overturning a resolution of the Hoboken Zoning Board of Adjustment (Zoning Board or Board) granting plaintiff several (d) variances needed to construct a residential high-rise building in an industrial zone. See N.J.S.A. 40:55D-70(d).

After reviewing the record in light of the applicable legal standards, we affirm. To briefly summarize, we conclude that plaintiff's arguments concerning the underlying land use application are without merit and warrant little discussion beyond that set forth by the trial judge in his comprehensive written opinion. See R. 2:11-3(e)(1)(E). We address separately an issue concerning conflict of interest.

I

Before addressing the issues on appeal, we briefly consider our standard of review. When, as here, a Law Division judge is tasked with making a de novo decision on the record, we defer to the judge's factual findings so long as they are supported by sufficient credible evidence. SeeState v. Locurto, 157 N.J.463, 470-74 (1999). On the other hand, we owe no deference to the judge's legal interpretations. SeeManalapan Realty v. Twp. Comm. of Manalapan, 140 N.J.366, 378 (1995). We review a trial court's evidentiary rulings for abuse of discretion. Alves v. Rosenberg, 400 N.J. Super.553, 562 (App. Div. 2008). However, if the ruling is premised on a misinterpretation of the law, it is a mistaken exercise of the trial court's discretion. Id.at 562-63.

II

Plaintiff's current appeal comes to us after a remand to the trial court ordered by the Supreme Court. Kane Properties v. Hoboken, 214 N.J. 199 (2013), aff'g in part and rev'g in part Kane Properties v. Hoboken, 423 N.J. Super. 49 (App. Div. 2011). This opinion assumes familiarity with the facts concerning the land use application, as set forth in our previous opinion, which as noted, the Court affirmed in part and reversed in part. See 423 N.J. Super. at 53-62. The evidence is also detailed in the trial court's opinion on remand. We set forth below the pertinent history of the litigation.

In a 2010 resolution, the Hoboken City Council (Council) overturned the Zoning Board's grant of the variances. We reversed and remanded the matter to the Council for reconsideration, not due to a disagreement on the merits but because of an ethics issue. Kane, supra, 423 N.J. Super. at 68. In its opinion, the Court agreed with us that the Council's decision, overturning the variances, was fatally tainted by the participation of the municipal attorney, who had a conflict of interest. Kane, supra, 214 N.J. at 224.

As we had in our opinion, the Court focused on two incidents. In the first incident, which occurred after the municipal attorney recused himself, a different attorney attended the March 24, 2010 meeting at which the Council considered and voted on the variances. Although the new attorney gave the Council his own advice, he also erroneously provided the Council with a generic advice memo that the municipal attorney had prepared earlier. The second incident, which both we and the Court concluded warranted granting plaintiff relief, occurred when the already-recused municipal attorney nonetheless appeared at a May 5, 2010 Council meeting and gave the Council legal advice about preparing its resolution on this matter.

While agreeing with us that the first incident was inappropriate, the Court reasoned that even if the March 24 incident could be excused, the municipal attorney's involvement in the May 5 meeting was inexcusable

We need not address, however, whether in light of the generic matter discussed in the memorandum, [the substitute attorney's] act alone would call the governing body's decision into question.

. . . .

Because the incomplete recusal of corporation counsel irretrievably tainted the action taken thereafter by the City Council, its decision must be set aside.

[Id. at 223-24.]

However, the Court disagreed with the remedy we had imposed, which was to send the case back to the Council for reconsideration. Instead, the Court concluded that the decision whether to uphold or overturn the variances should be made by the trial court, which should review the Zoning Board's decision de novo. Additionally, to purge any possible appearance of taint, the Court ordered that the remand be heard by a different trial judge. Id. at 230-32.

This was the task the Court set the trial court on the remand

In these unusual circumstances, we think it appropriate to craft a remedy that will balance the rights of the parties and that will also recognize the proper roles that would ordinarily be played in the process by the two levels of municipal decision makers. We therefore direct that the matter be remanded to the Law Division, which shall conduct a de novo review of the Zoning Board's resolution. We further direct that, as a part of that proceeding, the court shall entertain such arguments or supplements to the record that may be presented on behalf of the City Council and that bear upon its own "expertise and knowledge" of the zoning scheme. We also direct that the trial court shall give due consideration to the expressions that illuminate the City Council's evaluation of whether the proposed use variances satisfy the positive and negative criteria imposed by the MLUL.

[Id. at 231 (emphasis added) (footnote omitted).]

In footnote 2, which immediately followed the quoted language, the Court addressed plaintiff's request that it exercise original jurisdiction in deciding the underlying merits of the land use dispute. The Court declined, stating: "In light of our conclusion that the City Council is entitled to offer such arguments and supplements, we deem the exercise of our original jurisdiction to be inappropriate." Id. at 231 n.2.

The language of the Court's remand direction gave rise to a dispute in the trial court, over what constituted the "expressions that illuminate the City Council's evaluation" of the MLUL criteria. Id. at 231. In particular, the parties argued over whether those "expressions" included the pre-remand record made before the Council, particularly the transcript of the March 24, 2010 meeting at which the Council voted to overturn the variances. Ultimately, in a case management order dated September 5, 2013, the trial judge permitted the Council to submit the transcript as part of its evidence on the remand. The judge reasoned that the March 24, 2010 hearing was not retroactively tainted by the municipal attorney's later participation in the May 5, 2010 meeting.1

On this appeal, plaintiff argues that including the transcript fatally tainted the remand proceedings, thus requiring yet another remand to a third trial judge, or the exercise of our original jurisdiction in deciding the land use issues. The Council argues that its deliberations on March 24 were the most reliable expression of its views, and the Court's remand direction contemplated that the trial judge should consider that transcript. The Council also argues that the municipal attorney was not present at the March 24 meeting; what occurred there would not, in itself, have warranted reversing the Council's first decision; and any error was harmless.

We conclude that it would have been more appropriate for the judge to have excluded the transcript, in deference to the Court's expressed concern to insulate the remand from any conceivable taint. Moreover, footnote 2, which we quoted earlier, suggests to us that on remand, the trial judge was expected to consider new submissions from the Council, not old material. However, we agree with the Council that any error was harmless. In reading the trial judge's comprehensive opinion, we cannot conclude that he relied on or gave any weight to the March 24 transcript. Instead, the judge made an independent, de novo review of the Zoning Board's decision and rendered his own thorough factual and legal analysis.

Grasping at the proverbial straw, plaintiff points to one sentence in the judge's forty-two page opinion concerning the Council's decision not to amend the zoning ordinance. In that sentence, the judge observed: "In a review of the zone as part of the appeal of [the Zoning Board's] decision, the City Council expressed a clear legislative intent to retain the existing zoning despite opportunities to change it." However, that sentence stated no more than what was obvious.

Our prior opinion summarized the same thing as follows: "Significantly, the Council indicated that its failure to modify the zoning to include residential uses was intentional and not a matter of inaction or oversight. In other words, its policy views as to the proper development of the area differed from those of the Board." Kane, supra, 423 N.J. Super. at 61-62. That continued to be the Council's litigation position before the trial court on remand, and on this appeal. Nothing in this record suggests that the Council's position on the variance application was a product of, or influenced by, the receipt of a generic legal advice memo at the March 24, 2010 meeting. Further, when the Council, through its attorney, expressed its view during the proceedings on remand, the trial judge was obligated to give those views "due consideration." Kane, supra, 214 N.J. at 231.

We find no basis to conclude that the trial court's decision was tainted, or that reversal is warranted due to any evidentiary error.

III

With regard to the merits of the land use application, we add only these comments. Plaintiff's brief suggests that the Zoning Board's decision was entitled to the kind of deference that would be appropriate in an ordinary action in lieu of prerogative writs challenging the Board's decision. But the Court stated that such an approach would be "inappropriate in light of the role that should be played by the City Council." Kane, supra, 214 N.J. at 231. Instead, the Law Division judge was required to consider the record de novo, which is not a deferential standard.

We cannot agree with plaintiff's implicit argument that its land use application was a clear winner. To the contrary, our prior opinion found nothing especially compelling about this application. In our opinion, we stated that in light of the record, "we cannot conclude that plaintiff was entitled to prevail on its variance application as a matter of law. The case presents a classic policy dispute between the Board and the Council over the appropriate development of this zoning district." Kane, supra, 423 N.J. Super. at 64. As we indicated in our opinion, but for the conflict issue, we would likely have affirmed the first judge's decision upholding the Council's resolution. Id. at 64-65.

On this round, the second trial judge noted fundamental weaknesses in the application, including the fact that the existing zoning would permit a plethora of commercial uses that the owner never even considered, and the lack of a convincing explanation as to why the property could not be put to any of those permitted uses. Those findings are supported by the record made before the Zoning Board.

Moreover, even if the zoning were deemed obsolete and even if the Council had amended the zoning ordinance as recommended by the 2004 Master Plan, this proposed residential development would be inconsistent with the Plan in several respects. The Master Plan called for making the existing I-2 zone into an IT (Industrial Transition) zone, not a residential zone, and it did not endorse building high-rise residential towers in that zone. Moreover, the plan contemplated primarily commercial uses for the area.

The proposed IT zone is described as follows

Limited industrial uses will continue to be permitted in these areas, with public facilities and office development permitted as well. Residential uses should be permitted only as [] conditional uses in accordance with specific requirements. These include being located adjacent to public parks, or by providing open space that is dedicated to the City. Increased building height and density should only be permitted if amenities such as public parking or cultural facilities are provided.

On the record made before the Board, the proposed residential project would not be located next to a public park or provide public open space. Nor would it provide public parking or cultural facilities.2 We find no basis in this record to disturb the second judge's decision on the remand.

Affirmed.

1 The case management order also permitted the Council's attorney to submit a brief, and certifications from the Council members reflecting their expertise and knowledge with respect to the local zoning. The attorney submitted a brief, but no certifications. However, as the Court stated in remanding the matter, the Law Division judge was to consider "arguments . . . that may be presented on behalf of the City Council" concerning their evaluation of the proposed variances. Id. at 231. Therefore, the judge was not limited to considering the March 24, 2010 transcript in determining what the Council's views were.

2 The Board's own planning expert, Ms. Vandor, stated that the proposed child care center, to be located onsite, would not meet the planning definition of a "cultural facility."