ELLEN HEINE v. CITY OF PATERSON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ELLEN HEINE,

Plaintiff-Appellant,

v.

CITY OF PATERSON,

Defendant-Respondent.

August 26, 2014

Submitted August 19, 2014 Decided

Before Judges Nugent and Carroll.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-314-12.

Ellen Heine, appellant pro se.

Lite DePalma Greenberg, LLC, attorneys for respondent (Victor A. Afanador, of counsel and on the brief; Michael I. Goldman, on the brief).

PER CURIAM

Plaintiff Ellen Heine appeals from the Law Division's October 19, 2012 order dismissing her complaint in lieu of prerogative writs challenging the adoption of Ordinance No. 11-049 (the Ordinance) by defendant City of Paterson (the City). The Ordinance rezoned Lots 2 through 10 in Block 2204 from the I-2 Heavy Industrial District to the MU Mixed Use District. We affirm, substantially for the reasons set forth by Judge Philip H. Mizzone, Jr., in his written opinion.

The facts are undisputed. The proposed zoning change was initiated at the request of Joseph Ordini Realty Corp. (Ordini), the owner of property identified as Block 2 204 Lot 2 on the City's tax map. Ordini retained Burgis Associates, Inc. (Burgis), licensed professional planners, to prepare a planning report in support of the proposed zoning amendment to the City's Master Plan.

In its comprehensive twenty-three page written report, Burgis outlined the benefits to be achieved by the proposed zoning change, which was to include not only the Ordini property but also Lots 3 through 10 in Block 2204. The Burgis report outlined the current uses of these properties, which were largely consistent with the types of uses authorized by the MU Mixed Use classification.

According to 500-2.1(K) of the City's Zoning Ordinance, "[t]he intent of the I-2 Heavy Industrial District is to provide land for more intense types of industrial and manufacturing uses excluding those with nuisance characteristics." 500-2.1(I) provides that

[t]he MU Mixed-Use District is intended to permit a mixture of commercial and industrial uses in appropriate locations in accordance with the City's Master Plan . . . . [and] to create an environment for effective integration and mutual support among the non-residential activities and to promote more viable economic development and higher land values.

As noted in the Burgis report,

As detailed within the Paterson Master Plan the very existence of the Mixed Use Zone is due to the decline of heavy industry and the transformation that has and continues to occur resulting in a poor match in the City between the supply of industrial land and buildings and the needs of industrial users. The Mixed Use district was specifically created in response to this continuing trend and as a mechanism to buffer industrial uses with commercial uses and allow for new forms of development to occupy these spaces as the industrial areas of Paterson declined. The purpose of the Mixed Use district is to promote economic development and encourage higher land values.

Ultimately the Burgis report concluded that the proposed zoning amendment was "consistent and compatible" with the City's Master Plan, which was adopted in 2003, and most recently amended in July 2008. Among the reasons cited were:

1. Approval of the Land Use Element Plan amendment as requested increases consistency and compatibility of the Study Area with adjacent River Street land uses.

2. Adoption of the requested Master Plan amendment as proposed by the petitioner will foster and encourage the productive reuse of the Study Area without negative impacts on residential areas since the west side of River Street north of Fourth Avenue is presently non-residential in character.

3. Parcels on the opposite (east) side of River Street are in the MU Mixed Use Zone. The applicant is requesting the Planning Board extend the MU land use classification from across the street to the Study Area. River Street properties south of the Study Area and on both sides of the River Street are within the MU zone district.

4. The bulk standards applicable in the MU Mixed Use zone are not substantially different from those applicable in the I-2 Industrial Zone.

5. The modification of zoning districts from I-2 Industrial to MU Mixed Use retains many of the permitted industrial uses while expanding the nature of permitted uses to include additional commercial and retail land uses.

Pertinent to this appeal, Burgis also noted:

No negative impact on roadway capacity during peak commuter periods is anticipated if the requested master plan amendment is adopted. Presently all seven lots are developed. Future development proposals for any of the Study Area lots are not likely to have any measurable impact on roadway capacity.

The Ordinance was introduced by the City Council on first reading on October 11, 2011. It was then referred by the City to its Planning Board, which conducted a hearing on November 2, 2011.1 Prior to the meeting, the City's principal planner, Michael Deutsch, submitted a memorandum noting that

As proposed, the Mixed-Use Zone would provide flexible and expanded opportunities for the future redevelopment of existing buildings and sites, including a component of general retail businesses. Proposed uses within the Mixed-Use Zone would include many of the current uses in the I-2 zone but will also allow for banks and drive-through banks, personal service businesses, community retail businesses, general retail businesses, restaurants and business services.

Additionally, Deutsch testified before the Board that

These properties are not used as heavy industrial type uses. They are all more commercial uses that fit more into the MU Mixed-Use Zone. By passing a resolution in favor of this and referring it back to the City Council would enable on second reading of the [O]rdinance most probably a favorable outcome for this [O]rdinance to be passed by them, by the City Council. This is only for these nine or so properties. None of them, again, is used as I-2 uses. They are conforming MU uses except for the residential aspect, which is an existing building. I don't really see a mass redevelopment of this area and acquisition of properties in this area becoming I-2.

No member of the public appeared in opposition. The Board unanimously voted to adopt the proposed Ordinance, and, thereafter, the Ordinance was scheduled for a hearing before the City Council on December 6, 2011.

Plaintiff's property is within 200 feet of the proposed zoning change. She was the only member of the public to appear at the December 6, 2011 City Council meeting, primarily voicing concern over the traffic impact of the amendment. After various Council members commented on plaintiff's concerns, the Council unanimously adopted the Ordinance.

Plaintiff filed a timely complaint in lieu of prerogative writs. Before the Law Division, plaintiff argued that a traffic study should have been conducted prior to the adoption of the Ordinance. She further argued that the zone change constituted illegal "spot zoning."

After considering oral argument, Judge Mizzone rejected plaintiff's arguments. In a thoughtful written decision, the judge reasoned:

1. The Planning Board and the City Council were in possession of the Burgis Associates, Inc. planning report (P-1), which on page 5 states

"4. No negative impact on roadway capacity during pe[a]k commuter periods is anticipated if the requested master plan amendment is adopted. Presently all seven lots are developed. Future development proposals for any of the Study Area lots are not likely to have any measurable impact on roadway capacity".

Further at the December 6, 2011 hearing before the City Council, Councilman Goow stated . . . the proposal would not create a major change to the area and considered traffic impact on his support of the Ordinance. Councilmen Hines, Rodriguez and Morris further considered plaintiff's position on traffic before adoption. Thus, the impact of traffic was not glossed over by the City Council prior to adoption, but considered. Simply put[,] plaintiff's lay opinion that a traffic study should have been conducted was considered and felt unnecessary. Whether or not it should have been conducted is at most debatable.

Further, there was nothing before the Planning Board or City Council other than [p]laintiff's raising of concerns as a lay person to indicate the rezoning would adversely impact traffic in the area.

Accordingly, [p]laintiff has failed to carry her burden of proof that the Ordinance is arbitrary, capricious or unreasonable. Riggs v. Long Beach Tp., 109 [N.J.] 601 (1988).

2. The adoption of Ordinance 11-049 does not constitute [spot] zoning. The subject rezoned lots are adjacent to an existing Mixed Use zone and the [O]rdinance expands the zone. The subject lots are presently developed with mixed uses consistent with the Mixed Use zone. The subject [O]rdinance provides for a use which is compatible with adjacent uses and does not adversely affect the comprehensive zone plan of the City as op[i]ned in the planning report of Burgis Associates, Inc. (P-1).

Thus, plaintiff has failed to show the subject [O]rdinance constitutes spot zoning and to carry her burden of proof that the Ordinance is arbitrary, capricious or unreasonable for this reason.

Judge Mizzone entered an order on October 19, 2012, dismissing the complaint with prejudice. This appeal followed.

Before us, plaintiff essentially reiterates the arguments raised in the Law Division. She argues that (1) there were no traffic studies conducted prior to the zone change; (2) the zone change constitutes impermissible "spot zoning"; and (3) the Council abused its discretion in adopting a zoning change to suit a landowner's request without the inclusion of the proper studies.

We are satisfied from our review of the record that these arguments do not warrant extended discussion. R. 2:11-3(e)(1)(E). We affirm the order dismissing the complaint substantially for the reasons stated in Judge Mizzone's written opinion. We add the following.

In reviewing this matter, we bear in mind general principles that govern civil actions in lieu of prerogative writs brought under Rule 4:69 to contest decisions by municipal bodies. Although the contexts vary, courts ordinarily apply a presumption of validity to administrative decisions by municipal agencies. See Vineland Constr. Co., Inc. v. Twp. of Pennsauken, 395 N.J. Super. 230, 255-56 (App. Div. 2007), appeal dismissed as moot, 195 N.J. 513 (2008); Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998). The municipal decision is generally sustained if it comports with the law, is supported by substantial credible evidence in the record, and is not shown to be arbitrary or capricious. See, e.g., Cell S. of N.J. v. Zoning Bd. of Adj. of W. Windson Twp., 172 N.J. 75, 81-82 (2002); ERETC, L.L.C. v. City of Perth Amboy, 381 N.J. Super. 268, 277 (App. Div. 2005).

Municipal zoning ordinances enjoy a similar presumption of validity. Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J.338, 350 (2003); Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J.366, 380 (1995); Zilinsky v. Bd. of Adj. of Verona, 105 N.J.363, 368 (1987). This presumption may be overcome by proof that the ordinance is arbitrary, unreasonable or capricious, or plainly contrary to fundamental principles of zoning or the zoning statute. Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J.282, 289-90 (2001), cert. denied, 535 U.S. 1077, 122 S. Ct. 1959, 152 L. Ed. 2d 1020 (2002); Riggs v. Twp. of Long Branch, 109 N.J.601, 611 (1988); Bow & Arrow Manor, Inc. v. Town of W. Orange, 63 N.J.335, 343 (1973). "This showing may be made with respect to the facial validity of a zoning ordinance or its application to particular properties." Bailes v. Twp. of E. Brunswick, 380 N.J. Super. 336, 348 (App. Div.) (citations omitted), certif. denied, 185 N.J.596 (2005).

A zoning ordinance must generally meet four criteria: (1) it must advance one of the purposes of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, which are delineated in N.J.S.A.40:55D-2; (2) it must be "substantially consistent with the land use plan element and the housing plan element of the master plan," N.J.S.A.40:55D-62(a); (3) it "must comport with constitutional constraints on the zoning power, including those pertaining to due process, equal protection, and the prohibition against confiscation"; and (4) the municipality must follow the prescribed procedures for adopting the ordinance. Riggs, supra, 109 N.J. at 611-12 (citations omitted).

Reviewed under these principles, Ordinance 11-049 satisfies the criteria for validity set forth in Riggs, ibid. It advances the purposes of the MLUL because it encourages municipal action to guide the appropriate use or development of lands in a manner that will promote the general welfare, N.J.S.A. 40:55D-2(a), and it lessens the cost of development and encourages the more efficient use of land, N.J.S.A. 40:55D-2(m). It is substantially consistent with the City's Master Plan, which has recognized the decline of heavy industry and the resulting need to buffer industrial uses with commercial uses and promote new forms of development. It comports with constitutional constraints on the zoning power, and there is nothing in the record to suggest that it is confiscatory. Finally, there are no procedural irregularities associated with the adoption of the Ordinance that provide a basis to invalidate it.

The Board and the Council relied on the professional expert

Burgis report, which opined that the zoning amendment would not adversely impact traffic in the area. While plaintiff expressed concern, she did not produce any expert testimony or report to refute the Burgis report. Moreover, in assessing the accuracy of factual testimony from members of the public, the City Council could employ its own general knowledge of conditions in the community. See Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965) ("[P]ublic bodies, because of their peculiar knowledge of local conditions must be allowed wide latitude in the exercise of delegated discretion."). Here, Council members commented about their knowledge of traffic conditions in the area, and expressed their belief that the zoning change would not contribute to or exacerbate traffic congestion.

We similarly reject plaintiff's contention that the Ordinance constituted "spot zoning." As Judge Mizzone correctly noted, the Ordinance simply extended the Mixed Use zone that already lay adjacent to Lots 2 through 10. Moreover, plaintiff conceded at oral argument in the Law Division that the affected area "predominantly has a lot of mixed use . . . right now."

In sum, Ordinance 11-049 is not arbitrary, unreasonable, or capricious, nor is it plainly contrary to fundamental principles of zoning or the MLUL. Because plaintiff failed to overcome the presumption of validity that attaches to the Ordinance, Judge Mizzone properly dismissed plaintiff's complaint.

Affirmed.

1 N.J.S.A. 40:55D-26(a) provides that prior to adoption of any zoning ordinance, the governing body must transmit the proposed ordinance to the planning board for its report and recommendations.