RUDY'S AIRPORT, LLC v. THE CITY OF VINELAND and THE CITY OF VINELAND PLANNING BOARD - and THE LANDIS SEWERAGE AUTHORITY /Intervenor Telephonically

NOT FOR PUBLICATION /* /*]]>*/

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3069-11T1

RUDY'S AIRPORT, LLC,

Plaintiff-Appellant,

v.

THE CITY OF VINELAND

and THE CITY OF VINELAND

PLANNING BOARD,

Defendants-Respondents,

and

THE LANDIS SEWERAGE

AUTHORITY,

Defendant/Intervenor-

Respondent.

_____________________________________________

Telephonically argued December 10, 2012 Decided March 11, 2013

 

Before Judges Messano, Lihotz and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-0686-08.

 

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

 

Frank DiDomenico argued the cause for respondents City of Vineland and City of Vineland Planning Board.

 

 

 

PER CURIAM

Plaintiff, Rudy's Airport, LLC, appeals from the Law Division orders denying its motion for summary judgment and granting summary judgment to defendants, the City of Vineland (Vineland) and the City of Vineland Planning Board (the Board).1 The matter has an involved procedural history, and this is the second time it is before us. We cite from our prior opinion to place the current appeal in the proper context.

Plaintiff commenced this action by filing a complaint in lieu of prerogative writs . . . . The complaint recounts the history of the formation of an Ad Hoc Committee and that committee's activities that led to prior litigation and a determination by the Law Division that resolutions purporting to adopt the 2006 Master Plan, the 2006 Master Plan Reexamination Report and Ordinance No. 2007-26 were invalid under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21. The Law Division ruled the Ad Hoc Committee usurped the authority of the Planning Board and the meetings conducted by the Ad Hoc Committee had not been noticed or open to the public.

 

Promptly following those rulings, then-Mayor Perry Barse convened a teleconference with several professionals: Richard S. Cramer, a professional planner employed by T&M Associates (T&M); a planning board attorney; and the planning board solicitor. The purpose of the discussion was to arrange a March 24, 2008[,] meeting at which preliminary steps were to be taken to redraft the Master Plan.

 

On April 9, 2008, the . . . Board held its first public meeting after the invalidation of the 2006 Master Plan. At that meeting, the . . . Board discussed the need to adopt a new Master Plan. Thereafter, on notice to the public, the . . . Board held four additional public meetings.

 

At the April 28, 2008[,] public meeting, Cramer submitted a draft 2008 Master Plan and Master Plan Reexamination Report for review by the public and the . . . Board. The draft was further considered on April 29, May 14 and June 3, 2008.

 

On June 3, 2008, the . . . Board adopted the 2008 Master Plan and Master Plan Reexamination Report, and on June 24, 2008, the City Council adopted Ordinance No. 2008-39 to make the City's Land Use Ordinance (LUO) consistent with the 2008 Master Plan.

 

Rudy's filed this action, challenging the municipal actions as little more than a rubber stamp endorsement of the 2006 Master Plan and Reexamination Report, spearheaded by the mayor. However, following cross-motions for summary judgment, the motion court concluded that[,] "I dismissed the '06 Plan and then a new '08 Plan was presented and the public was afforded an opportunity to participate when five public meetings occurred and [sic] in the new separate '08 Master Plan process." The court rejected plaintiff's assertion that the mayor had arrogated the Planning Board's powers, and it also rejected the argument the 2008 Master Plan was no more than an illegal by-product of the 2006 Master Plan. We find no basis to disturb the court's rulings.

 

[Rudy's Airport, LLC v. The City of Vineland and the City of Vineland Planning Bd., No. A-0129-10 (App. Div. Nov. 2, 2011) (slip op. 2-4).]

 

However, we took note of plaintiff's additional contentions, which, it argued, were not fully addressed by the Law Division. These included:

(1) plaintiff's challenge to the 2008 Master Plan based on its nonconformance with the LUO's requirements, (2) plaintiff's challenge to the council's attempted amendment of the LUO to achieve conformance with the Municipal Land Use Law, and (3) plaintiff's challenge to the adequacy of the notice issued prior to the LUO's adoption.

 

[Id. at 17.]

 

We dispensed with the last of these arguments. See id. at 18 ("Based on our review of the record, the motion court both addressed and rejected the contention that individual notice to property owners was required . . . ."). "However, we [did] not find the remaining issues were addressed." Ibid. We held:

Accordingly, as to those issues only plaintiff's challenge to the 2008 Master Plan based on its nonconformance with the LUO's requirements, and plaintiff's challenge to the council's attempted amendment of the LUO to achieve conformance with the Municipal Land Use Law we remand to the Law Division to permit the parties to re-argue their cross-motions for summary judgment on these two issues only, and for a statement of reasons consistent with the Court Rules.

 

[Id. at 18-19.]

 

Following our remand, the parties appeared before a different Law Division judge for oral argument.2 The judge entered two orders, one granting Vineland and the Board summary judgment, the second denying plaintiff's motion for summary judgment. This appeal ensued.

Before us, plaintiff reiterates the arguments made before the Law Division judge. We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

Much of what transpired after the initial Law Division decision voiding the 2006 Master Plan is undisputed, and we alluded to some of the events in our prior opinion. We add the following for context.

The 2008 Master Plan (the Master Plan) and the Master Plan Reexamination Report (Report) were generated by Vineland's professional planner, Richard Cramer of T&M, in consultation with the Board's staff planners. On April 9, 2008, shortly after the Law Division's decision, the Board met and reviewed Cramer's submissions in a series of public meetings.3 On June 3, 2008, the Board adopted the Master Plan and Report in their entirety without amendment. Later that month, the Vineland Council (the Council) passed ordinance 2008-39 that adopted the Master Plan and Report.

N.J.S.A. 40:55D-28b requires that a master plan must include "[a] statement of objectives, principles, assumptions, policies and standards" and "[a] land use plan element . . . ." N.J.S.A. 40:55D-28b(1) and b(2). The statute then sets forth fourteen other discretionary elements. The then-existing LUO, sections 300-28 and 300-29, required the master plan to include the mandatory elements of the statute and all the discretionary plan elements. The 2008 Master Plan as adopted included the mandatory elements, but not all fourteen discretionary elements. It did include two: a housing element and a circulation element. See N.J.S.A. 40:55D-28b(3) and b(4).

While the litigation was pending, plaintiff amended its complaint to specifically allege that the Master Plan did not conform with the LUO. In July 2009, the Board adopted a resolution that urged the Council to amend the LUO, noting the current language was "outdated" and "not in compliance" with the MLUL. The Board's counsel wrote to the Council explaining that the existing LUO "appears to mandate that optional elements in the [MLUL] are mandatory."

In September 2009, the Council adopted Ordinance 2009-61 that required the Board, after public hearing, to adopt a Master Plan "in accordance with N.J.S.A. 40:55D-28," and eliminated section 300-29 in its entirety. In October, the Board passed a resolution again adopting the Master Plan and Report. In November, the Council approved Ordinance, 2009-72, that re-adopted Ordinance 2008-39 as amended by subsequent ordinances. As a result, the Master Plan now contained the two mandatory elements and two of the discretionary elements set forth in N.J.S.A. 40:55D-28b.

II.

Plaintiff contends that the 2008 Master Plan, when originally enacted, failed to comply with the requirements of sections 300-28 and 300-29 of Vineland's LUO. It asserts, therefore, that the Master Plan was "invalid, as a matter of law." Additionally, plaintiff argues that the subsequently-enacted LUO cannot be "reconcile[d]" with the MLUL, and any attempts by Vineland to do so were legally ineffective.

Vineland and the Board counter by arguing the new LUO was consistent with the MLUL and validly adopted by the Council. As a result, the Master Plan as ultimately adopted complies with the LUO and the MLUL.

Because the issues presented were purely legal in nature, we accord no deference to the Law Division's interpretation of the applicable statutes and review the matter de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) ("A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.").

We choose to consider plaintiff's second argument first, since we believe it essentially resolves the appeal. In that regard, we state some basic principles.

Most fundamental is that a zoning ordinance is insulated from attack by a presumption of validity. The party challenging the ordinance bears the burden of overcoming that presumption. Reviewing courts should not be concerned over the wisdom of an ordinance. If debatable, the ordinance should be upheld.

 

[Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 350-51 (2003) (quotation marks and citations omitted).]

 

"[T]he delegation of zoning authority to municipalities shall be liberally construed in a municipality's favor." Id. at 351 (citation omitted). And, while "[t]he validity of a land use ordinance or regulation is governed by the MLUL," ibid. (citation omitted), "a municipality may enact a zoning ordinance that alters the non-mandatory definitions in the MLUL." Id. at 356.

In the seminal case of Manalapan Realty, supra, 140 N.J. at 380, the Court held that a municipality may change its zoning ordinances provided that its reasons are not arbitrary, capricious or unreasonable. The Court in Manalapan Realty further held that, even in cases where an application is pending, the ability of "a municipality [to] change its zoning ordinance . . . is beyond question. This is so even if the ordinance is amended in direct response to a particular application." Id. at 378-79. What matters is that the "amendment is consistent with the Municipal Land Use Law (MLUL)." Id. at 379.

Plaintiff first argues that Ordinance 2009-61 was not "substantially consistent with or designed to effectuate the land use plan element or the housing plan element of the [M]aster [P]lan[,] and [the] Council never adopted a 'reasons' resolution." We disagree.

N.J.S.A. 40:55D-62a provides:

The governing body may adopt or amend a zoning ordinance relating to the nature and extent of the uses of land and of buildings and structures thereon. Such ordinance shall be adopted after the planning board has adopted the land use plan element and the housing plan element of a master plan, and all of the provisions of such zoning ordinance or any amendment or revision thereto shall either 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 . . . .

 

As we have noted, the statute also "permits a governing body to adopt an amendment to a zoning ordinance inconsistent with the master plan if a 'majority of the full authorized membership of the governing body' votes for it," and "the governing body's reasons 'for so acting' [are] expressed 'in a resolution and recorded in its minutes.'" Willoughby v. Wolfson Group, Inc., 332 N.J. Super. 223, 226 (App. Div.), (quoting N.J.S.A. 40:55D-62a) (emphasis added) certif. denied, 165 N.J. 603 (2000). "[B]efore adopting a zoning amendment inconsistent with the master plan, the governing body must expressly recognize the inconsistency. This will give effect to the significance the Legislature attached to the master plan." Id. at 229 (emphasis added). "Recognition of inconsistency flags the significance of the proposal and its potential impact on land use." Ibid.

Contrary to plaintiff's argument, Ordinance 2009-61 was not inconsistent with the Master Plan. The Law Division judge reached the same conclusion, stating:

The passage of Ordinance 2009-61 and the subsequent amendment of Section 300-28 and deletion of Section 300-29 was effective because the [c]ourt finds it was substantially consistent with the land use plan element and the housing plan element of the 2008 master plan.

 

The Master Plan as approved by the Board included a discretionary housing element, something previously mandatory under the prior section 300-29. Ordinance 2009-61 required the Board to pass a Master Plan consistent with the MLUL; it did so. We find no merit to plaintiff's contention.

Plaintiff's next argument is premised upon N.J.S.A. 40:55D-26a, which provides:

Prior to the adoption of a development regulation, revision, or amendment thereto, the planning board shall make and transmit to the governing body, within 35 days after referral, a report including identification of any provisions in the proposed development regulation, revision or amendment which are inconsistent with the master plan and recommendations concerning these inconsistencies and any other matters as the board deems appropriate. . . .

 

Plaintiff argues that the Council never "referred Ordinance 2009-61 to the . . . Board." The argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(1)(E).

The statute requires the Council to consider the Board's report before enacting an amendment to a land use ordinance. That was our essential holding in Jennings v. Boro. of Highlands, 418 N.J. Super. 405, 423-25 (App. Div. 2011), a case plaintiff relies on, but misconstrues. The statute does not require the Council to send its proposed ordinance to the Board. More importantly, in this case, the Council's adoption of Ordinance 2009-61 was specifically the result of the Board's referral.

Lastly, plaintiff contends that Ordinance 2009-61 was legally defective because the Master Plan was itself void since it did not comply with LUO sections 300-28 and 300-29. It contends, therefore, that any attempt to "re-adopt" the Master Plan was void. Of course, this circular argument rests entirely upon plaintiff's first point, i.e., the Master Plan, when originally enacted, conflicted with the LUO then in effect.

However, "[o]nce the Master Plan was adopted [Vineland] was authorized by the MLUL to amend its zoning ordinance . . . ." Manalapan Realty, supra, 140 N.J. at 382. "Under the 'time-of-decision rule,' courts may apply the statute in effect at time of the decision." Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 235 (1994) (quoting Lake Shore Estates v. Denville Twp., 255 N.J. Super. 580, 589 (1991), aff'd. o.b., 127 N.J. 394 (1992)). The "rule is not automatic," and "[a] court must balance the municipality's zoning interest against the developer's degree of reliance on the old statute and its entitlements of right." Ibid. (citation omitted).

Nothing in the record militates against application of the time of decision rule in this case. When this matter was presented on remand, the Board had adopted a Master Plan that complied with the LUO as amended and complied with the MLUL. Those were the undisputed circumstances faced by the judge at the time of his decision.

Affirmed.

 

 

 

 

 

1 Counsel for Landis Sewerage Authority submitted a letter to the Appellate Division Clerk advising that his client would not participate in this appeal.

2 The prior judge had retired.

3 Plaintiff contends in its brief that the lion's share of these public meetings had little to do with the Master Plan or Report. We have not been supplied with the transcripts and, so, we can make no assessment of that assertion. Moreover, as noted in our prior opinion, we found no basis to disturb the original Law Division judge's decision on this point.