PEREIRA INVESTMENT CORPORATION v. WEST WINDSOR TOWNSHIP ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-3829-14T1

PEREIRA INVESTMENT CORPORATION,

Plaintiff-Appellant,

v.

WEST WINDSOR TOWNSHIP ZONING

BOARD OF ADJUSTMENT and

ELLSWORTH REALTY ASSOCIATES,

LLC,

Defendants-Respondents.

___________________________________

PEREIRA INVESTMENT CORPORATION,

Plaintiff-Appellant,

v.

WEST WINDSOR TOWNSHIP COUNCIL,

WEST WINDSOR TOWNSHIP PLANNING

BOARD and ELLSWORTH REALTY

ASSOCIATES, LLC,

Defendants-Respondents.

___________________________________

October 25, 2016

Argued September 27, 2016 - Decided

Before Judges Reisner, Rothstadt and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket Nos. L-677-14 and L-107-15.

Jeffrey M. Brennan argued the cause for appellant (Baron & Brennan, attorneys; Jeffrey I. Baron, of counsel; Mr. Brennan, of counsel and on the brief).

Cory K. Kestner and Edwin W. Schmierer argued the cause for respondents West Windsor Township Council, West Windsor Planning Board and West Windsor Zoning Board (Mason, Griffin & Pierson, attorneys; Mr. Kestner, of counsel and on the brief).

Jonathan M. Preziosi argued the cause for respondent Ellsworth Realty Associates, LLC (Pepper Hamilton, LLP, attorneys, join in the brief of respondent West Windsor Zoning Board in A-3224-14.)

PER CURIAM

In these two appeals, plaintiff Pereira Investment Corp. (Pereira) opposes various aspects of a redevelopment project located on land owned by its neighbor, Ellsworth Realty Associates, LLC (Ellsworth). We have consolidated the appeals for the purposes of this opinion, and we now affirm.

I

In A-3224-14, Pereira appeals from a February 3, 2015 order dismissing its complaint in lieu of prerogative writs against defendants West Windsor Township Zoning Board of Adjustment (Zoning Board) and Ellsworth. We affirm for the reasons stated by Assignment Judge Mary C. Jacobson in her forty-page written opinion dated February 3, 2015.

Pereira's complaint challenged the Zoning Board's approval of several (d) and (c) variances which Ellsworth needed to convert its existing strip mall into a pedestrian-friendly town center. There is no dispute that a town center project was consistent with the Township's redevelopment plan for the Princeton Junction redevelopment area. Pereira, which owns a piece of commercial property located to the rear of Ellsworth's property, appeared at the Zoning Board hearings as an objector.

On this appeal, Pereira's arguments are limited to jurisdictional issues and an alleged interference with its easement rights. In the trial court, Pereira argued that the Zoning Board lacked jurisdiction, because the redevelopment plan required the Township Council to hear the application. Judge Jacobson rejected that contention, and we agree with her well-reasoned opinion. 1

For the first time on appeal, Pereira now argues that the Zoning Board lacked jurisdiction because the application must be heard by the West Windsor Planning Board. We decline to consider the argument, because it was not raised in the trial court. See Clifton Bd. of Educ. v. Clifton Zoning Bd. of Adjustment, 409 N.J. Super. 389, 442-43 (App Div. 2009). We note, however, that both the Planning Board and the Township Council have considered the Ellsworth project and, as is clear from the companion appeal, they support the project.

Plaintiff's arguments concerning the easements were thoroughly and correctly addressed in Judge Jacobson's comprehensive opinion and do not warrant further discussion here. R. 2:11-3(e)(1)(E). Accordingly, we affirm the order dismissing the complaint.

II

In A-3829-14, Pereira appeals from a March 20, 2015 order dismissing its complaint in lieu of prerogative writs against defendants West Windsor Township Council, West Windsor Township Planning Board (Planning Board), and Ellsworth.

In December 2014, after the Zoning Board rendered its decision, both the Planning Board and the Township Council approved a proposal to designate two of Ellsworth's lots as in need of redevelopment, for the purpose of adding them to the Princeton Junction redevelopment plan. Those two lots adjoined the portions of Ellsworth's property that were already designated as part of the redevelopment area.

As part of Ellsworth's application to the Zoning Board, Ellsworth had sought and obtained variances to place parking spaces and a drainage basin on those two lots, which were then zoned solely for residential use. The Zoning Board found that using the two lots for drainage and parking was a critical component of Ellsworth's town center project. After Pereira challenged the Zoning Board's decision, the Township Council asked the Planning Board to consider whether the two lots should be added to the redevelopment area.

Relying on a November 10, 2014 report from John Madden, the same engineering expert whose opinions the Zoning Board had considered in rendering its decision, the Planning Board concluded that the two lots should be designated as in need of redevelopment. The Township Council likewise relied on Madden's November 10 report in adopting its resolution. Madden's report included a copy of the Zoning Board's resolution approving the variances, a thorough description of the Ellsworth project, and various maps and schematics depicting the redevelopment area and the Ellsworth project. Hence, the Planning Board and the Township Council had a detailed understanding of the entire project at the time they acted.2

Madden opined that the lots qualified for redevelopment designation under N.J.S.A. 40A:12A-3, which includes in the definition of "redevelopment area" the following pertinent language

A redevelopment area may include lands, buildings, or improvements which of themselves are not detrimental to the public health, safety or welfare, but the inclusion of which is found necessary, with or without change in their condition, for the effective redevelopment of the area of which they are a part.

He also opined that inclusion of the two lots would be "consistent with smart growth planning principles," one of several criteria set forth in N.J.S.A. 40A:12A-5.

A delineated area may be determined to be in need of redevelopment if, . . . the governing body of the municipality by resolution concludes that within the delineated area any of the following conditions is found

. . . .

h. The designation of the delineated area is consistent with smart growth planning principles adopted pursuant to law or regulation.

[N.J.S.A. 40A:12A-5(h).]

The Planning Board and the Township Council agreed with Madden's analysis. The Council's Resolution specifically incorporated Madden's finding that it was necessary to include the two lots in the redevelopment area "to effectively implement the Princeton Junction Redevelopment Plan."

In a thorough oral opinion placed on the record on March 20, 2015, Judge Jacobson rejected Pereira's argument that Madden's report constituted a net opinion, because Madden explained in great detail the factual bases for his conclusions. The judge further concluded that the exhibits attached to the complaint established that the Resolution was supported by substantial credible evidence, and therefore "Pereira ha[d] not stated a claim upon which relief can be granted."

On this appeal, Pereira presents the following points of argument for our consideration

I. THE TRIAL COURT ERRED IN ITS APPLICATION OF THE STANDARD OF REVIEW ATTENDANT TO DEFENDANTS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.

II. THE TRIAL COURT ERRED IN DETERMINING THAT LOTS 62 AND 76 COULD BE DEEMED NECESSARY FOR THE REDEVELOPMENT OF AN AREA WHICH WAS PREVIOUSLY DETERMINED TO BE IN NEED OF REDEVELOPMENT AND THE SUBJECT OF AN EXISTING REDEVELOPMENT PLAN.

III. THE TRIAL COURT ERRED IN DETERMINING THAT SUBSTANTIAL, CREDIBLE EVIDENCE EXISTED TO SUPPORT THE DETERMINATION OF LOTS 62 AND 76 AS AN AREA IN NEED OF REDEVELOPMENT.

Our review of the trial court's decision is de novo. Rezem Family Assocs., LP v. Bor. of Millstone, 423 N.J. Super. 103, 114 (App. Div.), certif. denied, 185 N.J. 297 (2011). A motion to dismiss should not be granted under Rule 4:6-2(e), if a cause of action may be gleaned from an indulgent reading of the complaint. Id. at 113. However, "[a] pleading should be dismissed if it states no basis for relief and discovery would not provide one." Id. at 113-14 (citing Camden Cty. Energy Recovery Assoc., LP v. N.J. Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff'd, 170 N.J. 246 (2001)). In considering a motion to dismiss, the court may consider pertinent documents attached to the complaint, without transforming the motion into one for summary judgment. See Myska v. N.J. Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App. Div. 2015), appeal dismissed, 224 N.J. 523 (2016).

In light of those standards, we conclude that the motion to dismiss was properly granted. The Council's Resolution was entitled to a presumption of validity. See Levin v. Twp. Comm. of Bridgewater, 57 N.J. 506, 537 (1971), appeal dismissed, 404 U.S. 803, 92 S. Ct. 58, 30 L. Ed. 2d 35 (1971). Like the trial court, we are bound to uphold the Council's action if it was supported by substantial credible evidence. Ibid.; ERETC, L.L.C., v. City of Perth Amboy, 381 N.J. Super. 268, 277-78 (App. Div. 2005).

We agree with Judge Jacobson that the Madden report was not a net opinion. The report contained a detailed factual justification for Madden's opinions, as opposed to merely "a bland recitation of applicable statutory criteria." Gallenthin Realty Devel., Inc. v. Bor. of Paulsboro, 191 N.J. 344, 373 (2007). The report provided a sufficient basis to uphold the Resolution, because it demonstrated that "the subject property is . . . connected to a larger redevelopment plan," and is "integral" to the success of that plan. Id. at 372.

We also note that this is not a case where a property owner opposed a blight designation because it did not want its land seized through eminent domain. In this case, Ellsworth proposed a town center project which the Township found highly desirable to meet the goals of its redevelopment plan. Placing parking and drainage facilities on the two residential lots, which Ellsworth owned and voluntarily sought to have included in the redevelopment area, served the purpose of the plan. On this record, nothing in the redevelopment statute, or in the cases Pereira cites, precluded the Township from designating those two additional lots as being in need of redevelopment where, as here, later events provided substantial evidence to support their inclusion in the redevelopment area.3

To the extent not specifically addressed herein, Pereira's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Pereira's counsel argued to Judge Jacobson that the Board lacked jurisdiction to grant variance relief with respect to two of Ellworth's lots which were not included in the designated redevelopment area. The Township Council's subsequent resolution, addressed in the companion appeal, mooted Pereira's challenge to that aspect of the Zoning Board's decision. See Jai Sai Ram, LLC v. Planning/Zoning Bd. of S. Toms River, 446 N.J. Super 338, 340-43 (App. Div. 2016).

2 Madden's report and its exhibits, the Planning Board's letter recommending the proposal, and the Township Council's Resolution were all attached to Pereira's complaint. The transcript of the Planning Board hearing was not attached; however, according to the Board's letter, Madden testified in favor of the proposal and no one presented opposition. Pereira's brief does not suggest that the hearing transcripts would have supported its complaint.

3 In this case, the two parcels are "lot[s] whose blight designation is peculiar to [their] inclusion in a particular area." Powerhouse Arts Dist. Neighborhood Ass'n v. City Council, 413 N.J. Super. 322, 337 n.6 (App. Div. 2010) (citing N.J.S.A. 40A:12A-3), certif. denied, 205 N.J. 79 (2011).