CARTERET INDUSTRIAL PROJECT v. BOROUGH COUNCIL BOROUGH OF CARTERET et al.
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1893-05T11893-05T1
CARTERET INDUSTRIAL PROJECT, a
NEW JERSEY LIMITED LIABILITY
COMPANY,
Plaintiff-Appellant,
v.
BOROUGH COUNCIL OF THE BOROUGH
OF CARTERET, a MUNICIPAL
CORPORATION OF NEW JERSEY; and
THE MAYOR AND/OR COUNCIL OF THE
BOROUGH OF CARTERET, IN THEIR
CAPACITY AS REDEVELOPMENT
ENTITY, BOROUGH OF CARTERET,
Defendants-Respondents.
Argued December 6, 2006 - Decided January 23, 2007
Before Judges Lefelt and Parrillo.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, MID-L-2444-05.
John J. Reilly argued the cause for appellant (Farer Fersko, attorneys; Mr. Reilly, of counsel and on the brief).
William C. Cagney argued the cause for respondents (Windels Marx Lane & Mittendorf, attorneys; Robert J. Bergen, of counsel; Mr. Cagney and Rodman E. Honecker, on the brief).
PER CURIAM
This is an action in lieu of prerogative writs. Plaintiff Carteret Industrial Project owns certain industrial-zoned property in Carteret, which defendant Borough Council (Borough) designated as an area in need of redevelopment. All concede that plaintiff failed to timely file an action to contest this designation. Instead, plaintiff waited until the Borough adopted a redevelopment plan for the property and sent out a request for proposals before filing a complaint challenging both the designation and the redevelopment plan. The trial court dismissed plaintiff's action on summary judgment, finding plaintiff's challenge to the redevelopment designation untimely and its challenge to the redevelopment plan without merit. Plaintiff appeals, and we affirm.
The facts on the summary judgment record are not in dispute. Plaintiff owns 12.124 acres of land located at 377 Roosevelt Avenue in Carteret. The property is in the vicinity of Noes Creek and the Peter Sica Industrial Highway, on the west side of Roosevelt Avenue and having two access points onto the avenue. The property is improved with buildings that were originally constructed in the early 1920s. They are deteriorated and have damaged facades, some of which have been repaired with steel or fiberglass corrugated finishing material. They are covered with soot. There are damaged fences and sidewalks at the site and accumulated debris. The site generally has a deteriorated and neglected appearance. In the past, plaintiff had expended $950,000 to remediate environmental damage on the property. According to plaintiff, it has received unsolicited offers of between $4 million and $4.5 million to purchase the property.
On June 3, 2004, pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -73 (LRHL), the Borough adopted a resolution which directed the Planning Board to determine whether a certain area, the proposed Roosevelt Avenue Industrial Park Redevelopment District, consisting of 17.7 acres including plaintiff's property, was an area in need of redevelopment. The Borough Council retained Beacon Planning and Consulting Services, LLC, which prepared a report in July 2004.
In accordance with N.J.S.A. 40A:12A-6, on July 28, 2004, the Planning Board conducted a public hearing to consider Beacon's report. Notice of the hearing had been published twice in the Home News Tribune, on July 11, 2004, and on July 18, 2004. The hearing notice included the boundaries of the area to be investigated, and stated that a map could be inspected at the office of the municipal clerk. Individual notice had been sent to plaintiff care of plaintiff's attorney, Mandelbaum & Mandelbaum in West Orange, and counsel acknowledged receipt of the notice. At the hearing, Beacon's representative testified and was questioned by the Planning Board. The public had an opportunity to be heard, however plaintiff neither testified nor presented any objection to the recommended designation.
The Planning Board issued its Resolution of Findings and Conclusions on August 25, 2004. Based on the evidence before it, the Board found that plaintiff's property was substandard, obsolescent, lacking in adequate light and air, largely vacant, that there was a lack of proper utilization of buildings and lots, and that "the condition of these lots is detrimental to the safety, health and welfare of the Borough". The Board recommended that plaintiff's property be designated an area in need of development, but found that the remaining acreage was not such an area.
On August 26, 2004, the Borough adopted a resolution designating plaintiff's property as an area in need of redevelopment and directing the Planning Board to prepare a redevelopment plan. On December 30, 2004, the redevelopment plan was finalized and on January 26, 2005 was reviewed and considered by the Planning Board at a public hearing. Notice of the hearing had been published in the Home News Tribune on January 14, 2005, and individual notice had been sent to plaintiff, who acknowledged service.
At the conclusion of the hearing, after considering the testimony from the co-author of the redevelopment plan as well as public comment, and without objection from plaintiff, the Planning Board issued its resolution of findings and conclusions recommending adoption of the redevelopment plan. On February 17, 2005, the Borough enacted an ordinance adopting the Board's resolution as the official redevelopment plan for the Roosevelt Avenue Light Industrial Redevelopment District. The ordinance was published on February 27, 2005 and the Borough issued a request for proposals for the redevelopment area on March 14, 2005.
On April 4, 2005, eight months after the Borough formally adopted the resolution designating plaintiff's property in need of redevelopment, plaintiff filed a four-count complaint in lieu of prerogative writs in the Law Division challenging the designation, the redevelopment plan and the request for proposals. On defendant's motion for summary judgment, the trial judge dismissed plaintiff's complaint as untimely and barred by the forty-five day rule of Rule 4:69-6(a), specifically finding that "plaintiff took no action in support of its concerns to the Planning Board or Borough Council before it sought redress before this court, yet now seeks the support of this court in its apparent indifference to the prior proceedings before the Borough". In doing so, the court rejected plaintiff's request to relax the rule's time limitation in the "interests of justice," finding that the matter advances only a private rather than a public interest. Further, the court concluded that plaintiff's challenge to the redevelopment plan was essentially an attack on the designation - "based on its contention that the property should not have been deemed an area in need of redevelopment" - which, as noted, was untimely. Nonetheless, the court reached the substantive issue, holding that the redevelopment plan was consistent with the LHRL, addressed its relationship to the Borough's Master Plan, the State's Development and Redevelopment Plan, and the Middlesex County Plan, and that plaintiff had failed to identify any specific defect therein.
On appeal, plaintiff raises the following issues:
I. THE LAW DIVISION ERRED IN NOT ENLARGING THE 45 DAY LIMITATIONS PERIOD TO ALLOW PLAINTIFF'S CHALLENGE TO THE REDEVELOPMENT AREA DESIGNATION TO GO FORWARD IN THE MANIFEST INTEREST OF JUSTICE.
II. THE LAW DIVISION ERRED IN DISMISSING PLAINTIFF'S CHALLENGE TO THE ADOPTION OF THE REDEVELOPMENT PLAN.
III. GENUINE ISSUES OF MATERIAL FACT EXIST AS TO WHETHER THE DECLARATION OF THE PROPERTY AS IN NEED OF REDEVELOPMENT IS SUPPORTED BY SUBSTANTIAL EVIDENCE.
(I)
Plaintiff contends the trial court erred in not enlarging the time period of Rule 4:69-6 "in the interests of justice." We disagree.
Rule 4:69-6(a) provides that "no action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing, or relief claimed." The underlying purpose of this time limitation is to "give an essential measure of repose to actions taken against public bodies." Washington Tp. Zoning Bd. of Adjustment v. Washington Tp. Planning Bd., 217 N.J. Super. 215, 225 (App. Div.), certif. denied, 108 N.J. 218 (1987). The LRHL contains a similar forty-five-day limitation on actions challenging a designation that an area is in need of redevelopment. N.J.S.A. 40A:12A-6(b)(7).
Pursuant to Rule 4:69-6(c), extension of the forty-five-day time limitation may be permitted "where it is manifest that the interest of justice so requires." An extension may be available in those cases involving (1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; or (3) important public rather than private interests which require adjudication or clarification. Concerned Citizens of Princeton, Inc. v. Mayor and Council of the Borough of Princeton, 370 N.J. Super. 429, 446 (App. Div.), certif. denied, 182 N.J. 139 (2004).
Here, plaintiff contends that "municipal actions that affect a property owner's right to use property and which can result in the unwanted taking of the property by eminent domain are matters of important public interest." We decline to adopt such a blanket proposition as too general, vague and overly inclusive, potentially encompassing every redevelopment designation and thus rendering nugatory the rule's temporal limitation. Rather, the determination is an individualized one, made on a case-by-case basis and grounded in the particular facts presented.
Plaintiff's further reliance on Concerned Citizens, supra, is not helpful as that case is entirely distinguishable. There, the redevelopment designation involved municipally-owned land and implicated the expenditure of public funds through the issuance of bonds. 370 N.J. Super. at 447. In addition, the plaintiffs had submitted a significant number of signatures opposing the project, demonstrating a strong public interest. Ibid. Furthermore, the plaintiffs alleged numerous violations and misapplication of the LRHL, as well as arbitrary and capricious municipal action in the redevelopment designation of public land. Id. at 446-47.
Here, in stark contrast, only private interests are indicated. The Borough designated for redevelopment only a single property, privately owned by a limited liability company wholly owned by a single individual. A sizeable amount of private monies were expended on environmental investigation and remediation costs involving that property. Moreover, plaintiff voiced no objection to either the redevelopment designation or plan during the public hearings, let alone garnered public opposition to the project. And even on appeal plaintiff identifies no specific plan deficiency other than what it characterizes as its improper designation. Under the circumstances, we perceive plaintiff's grievance to be entirely private, implicating no public interest sufficient enough to warrant relaxation of the forty-five day filing limitation of Rule 4:69-6(a). Thus dismissal of plaintiff's complaint challenging defendant's redevelopment designation as untimely was proper.
(II)
Even assuming a timely filing, summary judgment was still appropriate in the absence of any factual dispute as to the propriety of the redevelopment designation.
Redevelopment designations, like all municipal actions, are vested with a presumption of validity. Levin v. Tp. Comm. of Bridgewater, 57 N.J. 506, 537-39 (1971); Hirth v. City of Hoboken, 337 N.J. Super. 149, 161 (App. Div. 2001). It has long been recognized that "community redevelopment is a modern part of municipal government." Levin, supra, 57 N.J. at 540 (citing Wilson v. Long Branch, 27 N.J. 360, 370, cert. denied, 358 U.S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104 (1958)).
Thus, judicial review of a redevelopment designation is limited solely to whether the designation is supported by substantial credible evidence. Ibid. This heightened deference is codified in the LRHL, which provides that an "area in need of redevelopment" designation, "if supported by substantial evidence, . . . shall be binding and conclusive upon all persons affected by the determination." N.J.S.A. 40A:12A-6(b)(5). Accordingly, it is not for the courts to "second guess" a municipal redevelopment action, "which bears with it a presumption of regularity." Forbes v. Bd. of Trs. of S. Orange, 312 N.J. Super. 519, 532 (App. Div.) certif. denied, 156 N.J. 411 (1998).
Thus, the burden is on the objector to overcome the presumption of validity by demonstrating that the redevelopment designation is not supported by substantial evidence, but rather is the result of arbitrary or capricious conduct on the part of the municipal authorities. Levin, supra, 57 N.J. at 537; Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998). Absent such a demonstration, sufficient to raise a material factual dispute, summary judgment dismissing a challenge to the designation is appropriate. Rule 4:46; see, e.g., Jersey City Chapter of Prop. Owner's Protective Ass'n v. City Council of Jersey City, 55 N.J. 86, 101-02 (1969) (Where objectors did not tender any evidence before either the Planning Board or the Law Division that rebutted substantial evidence in support of redevelopment designation, summary judgment should have been granted without any need for a plenary trial.).
It seems clear that the Legislature intended the LRHL to encompass a broad range of circumstances that a municipality could take into account in deciding whether an area is in need of redevelopment. In particular, N.J.S.A. 40A:12A-5 authorizes that designation if "any" of seven "conditions" are found. To the extent relevant here, those conditions include:
a. The generality of buildings are substandard, unsafe, unsanitary, dilapidated, or obsolescent, or possess any of such characteristics, or are so lacking in light, air, or space, as to be conducive to unwholesome living or working conditions.
. . . .
d. Areas with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals, or welfare of the community.
e. A growing lack or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real property therein or other conditions, resulting in a stagnant or not fully productive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare.
[N.J.S.A. 40A:12A-5 (a), (d) and (e).]
As noted, under the LRHL, a redevelopment designation must be supported by substantial evidence. N.J.S.A. 40A:12A-6(b)(5). As we noted in ERETC, LLC v. City of Perth Amboy, 381 N.J. Super. 268, 280 (App. Div. 2005), case law more than adequately articulates what information meets the substantial evidence requirement. See Lyons v. Camden, 52 N.J. 89, 95 (1968) (noting thorough study included structure-by-structure inspections of exteriors and interiors of each building within area declared blighted); Wilson, supra, 27 N.J. at 389-90 (noting city presented "the elaborate report of the planning consultant who made a study of the conditions in the area with respect to blight," including photographs and maps showing land use, topography, housing conditions, undeveloped and underutilized land, extent of blighting factors, and tax delinquencies in project area); Concerned Citizens, supra, 370 N.J. Super. at 459 (finding substantial evidence to support redevelopment designation of surface parking lot where testimony explained that lot's limitations negatively affected its economic vitality and that "lack of investment leading to construction of new ratable improvements" caused lot to remain in "stagnant and unproductive condition"); Hirth, supra, 337 N.J. Super. at 162-63 (noting planning board's consultant "made detailed block-by-block findings concerning the condition of buildings in the proposed redevelopment area and the nature and level of the economic activity being conducted there"); cf. Forbes, supra, 312 N.J. Super. at 531 (holding that inspection of the interiors of each building to determine conditions pursuant to N.J.S.A. 40A:12A-5(d) and (e) was not necessary given that those conditions were largely externally observable and that planner had long familiarity, in her professional capacity, with all facets of community), certif. denied, 156 N.J. 411 (1998).
Here, as noted, the Planning Board determined that plaintiff's property met the standards of the LHRL because it was substandard and obsolescent, lacked light and air, was largely vacant, and that there was a lack of proper utilization of the land. Instead of offering any proof in opposition to these findings, plaintiff on appeal simply argues defendant's review was too limited and narrow, failing to consider the owner's substantial capital investment to remediate the property as well as the unsolicited offers to purchase the site. This argument, however, fails to raise any genuine issue of material fact as to whether the property satisfied the statutory standards for designation contained in N.J.S.A. 40:12A-5(a), (d) and (e).
(III)
Summary judgment was also properly granted dismissing the remainder of plaintiff's complaint challenging the redevelopment plan. Here too, plaintiff has failed to raise any material issues of fact.
According to N.J.S.A. 40A:12A-7(a):
The redevelopment plan shall include an outline for the planning, development, redevelopment, or rehabilitation of the project area sufficient to indicate:
(1) Its relationship to definite local objectives as to appropriate land uses, density of population, and improved traffic and public transportation, public utilities, recreational and community facilities and other public improvements.
(2) Proposed land uses and building requirements in the project area.
(3) Adequate provision for the temporary and permanent relocation, as necessary, of residents in the project area, including an estimate of the extent to which decent, safe and sanitary dwelling units affordable to displaced residents will be available to them in the existing local housing market.
(4) An identification of any property within the redevelopment area which is proposed to be acquired in accordance with the redevelopment plan.
(5) Any significant relationship of the redevelopment plan to (a) the master plans of contiguous municipalities, (b) the master plan of the county in which the municipality is located, and (c) the State Development and Redevelopment Plan adopted pursuant to the "State Planning Act," P.L.1985, c.398 (C.52:18A-196 et al.).
[N.J.S.A. 40A:12A-7(a)(1) through (5).]
Here, the trial court, which reviewed the plan as adopted by the Borough, held that the plan was consistent with the LHRL:
What must be included in the Plan is set out in N.J.S.A. 40A:12A-7. The Borough's Plan is consistent with the Act. It addresses its relationship to the Borough's Master Plan, the State's Development and Redevelopment Plan, and the Middlesex County Plan. It addresses relocation of displaced businesses as well as the regulation of uses within the designated area. In short, the Plan is consistent with the provisions of the Act. The Plaintiff did not direct the court to any specific defect other than its contention that is property had been misdesignated.
We see no reason to disturb the trial court's conclusion. The plan included a relocation component, design standards, and permitted uses for the redevelopment area. The plan further explained its relationship to the Carteret Master Plan, the Middlesex County Plan and the State Development and Redevelopment Plan and that eminent domain may be used to acquire properties in the redevelopment area. There being no competent proof in opposition, the grant of summary judgment was proper.
(IV)
Lastly, plaintiff claims that the notice regarding the adoption of the redevelopment plan should have included language that the plan will give the municipality the power to take property in a redevelopment area by eminent domain, supposedly required by N.J.S.A. 40:49-2(a) and N.J.S.A. 40:49-2.1. We disagree.
According to N.J.S.A. 40A:12A-7(c), "Notwithstanding the provisions of the 'Municipal Land Use Law,' . . . or of other law, no notice beyond that required for adoption of ordinances by the municipality shall be required for the hearing on or adoption of the redevelopment plan or subsequent amendments thereof." The Municipal Land Use Law provides the notice and publication requirements for an ordinance. Specifically:
Every ordinance after being introduced and having passed a first reading, which first reading may be by title, shall be published in its entirety or by title or by title and summary at least once in a newspaper published and circulated in the municipality, if there be one, and if not, in a newspaper printed in the county and circulating in the municipality, together with a notice of the introduction thereof, the time and place when and where it will be further considered for final passage, a clear and concise statement prepared by the clerk of the governing body setting forth the purpose of the ordinance, and the time and place when and where a copy of the ordinance can be obtained without cost by any member of the general public who wants a copy of the ordinance.
[N.J.S.A. 40:49-2(a).]
N.J.S.A. 40:49-2.1 authorizes a municipality to meet the statutory newspaper notice requirements by publishing a notice that cites the proposed ordinance by title, gives a brief summary of the main objectives or provisions of the ordinance, represents that there are copies of the ordinance on file for public examination and acquisition at the office of the municipal clerk, and sets forth the time and place for further consideration of the proposed ordinance.
We are satisfied that the notice published by defendant satisfied the statutory criteria and the plan itself included language that the power of eminent domain may be utilized to further the objectives of the redevelopment plan.
Notice of the adoption of the redevelopment plan was published on January 14, 2005, in the Home News Tribune. The notice provided the following:
PLEASE TAKE NOTICE that, pursuant to the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq., the Carteret Planning Board will hold a Public Hearing to review the proposed Roosevelt Avenue Light Industrial District Redevelopment Plan for consistency with the Borough Master Plan.
A Public Hearing to review the proposed Redevelopment pursuant to the N.J.S.A. 40A:12A-1 et seq. has been scheduled for the Carteret Planning Board Meeting of Wednesday, January 26, 2005 at 7:00 p.m. at the Municipal Court/Police Facility, 230 Roosevelt Avenue, Carteret, New Jersey 07008. All persons who are interested in or would be affected by a determination that the study area qualifies as an area in need of redevelopment may appear at the hearing to ask questions and/or present oral or written statements of support or objection concerning such determination.
A copy of the proposed Redevelopment Plan is available for public inspection Monday through Friday between the hours of 8: 00 A.M. and 4:00 P.M. in the office of the Borough Clerk at the Municipal Building, 61 Cooke Avenue, Carteret, New Jersey 07008
The Plan on file includes the following language:
All lands within the Roosevelt Avenue Light Industrial District Redevelopment Area not owned by the Borough of Carteret are subject to acquisition for redevelopment. This Redevelopment Plan authorizes the Borough to exercise its condemnation powers on all properties in the Redevelopment Area, to acquire property or to eliminate any restrictive covenants, easements or similar property interests that may undermine the implementation of the Plan.
[(emphasis added).]
The redevelopment plan notice clearly meets the statutory requirements. It was published in a newspaper circulating in the municipality; cites the proposed ordinance by title; summarizes its provisions; informs where one can read it; and reports the time and place of further consideration. N.J.S.A. 40:49-2.1. The LRHL requires no more and does not mandate that the notice of redevelopment designation include the fact that the municipality may exercise its right to use eminent domain to further the underlying goals of the redevelopment process. In any event, we are satisfied that plaintiff was on notice that the redevelopment plan imbued the municipality with the ability to exercise its power of eminent domain to acquire plaintiff's property.
Affirmed.
(continued)
(continued)
19
A-1893-05T1
January 23, 2007
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