Opinion
DOCKET NO. A-3437-13T3
04-17-2015
FIELDSTONE ASSOCIATES, L.P., Plaintiff-Appellant, v. JOINT LAND USE BOARD OF THE BOROUGH OF MERCHANTVILLE, Defendant-Respondent.
Jeffrey M. Brennan argued the cause for appellant (Baron & Brennan, P.A., attorneys; Jeffrey I. Baron, of counsel and on the brief; Mr. Brennan, on the brief). Matthew P. Madden argued the cause for respondent (Madden & Madden, P.A., attorneys; Mr. Madden, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1407-13. Jeffrey M. Brennan argued the cause for appellant (Baron & Brennan, P.A., attorneys; Jeffrey I. Baron, of counsel and on the brief; Mr. Brennan, on the brief). Matthew P. Madden argued the cause for respondent (Madden & Madden, P.A., attorneys; Mr. Madden, on the brief). PER CURIAM
In this prerogative writs action, the second of two related cases we decide today, plaintiff redeveloper Fieldstone Associates, L.P. appeals from the Law Division's February 21, 2014 order dismissing Fieldstone's challenge to defendant Joint Land Use Board of the Borough of Merchantville's Resolution No. 2013-07, recommending the Borough Council reject Fieldstone's Redevelopment Plan Amendment. Fieldstone contends the resolution is invalid as a matter of law because the Board's failure to act within forty-five days of the Council's referral stripped the Board of jurisdiction, and the participation of two Board members who owned property within 200 feet of the redevelopment area voided the Resolution in any event. We conclude both claims are without merit and affirm.
We set out the Borough's efforts to redevelop the Town Center East Project Area in our companion opinion, Fieldstone Associates, L.P. v. Borough of Merchantville, No. A-1239-13 (App. Div. Apr. 17, 2015). We pick up the narrative in July 2011, when the Borough Council referred Fieldstone's proposed Redevelopment Plan Amendment to the Board pursuant to N.J.S.A. 40A:12A-7e, which provides:
Prior to the adoption of a redevelopment plan, or revision or amendment thereto, the planning board shall transmit to the governing body, within 45 days after referral, a report containing its recommendation concerning the redevelopment plan. This report shall include an identification of any provisions in the proposed redevelopment plan which are inconsistent with the master plan and recommendations concerning these inconsistencies and any other matters as the
board deems appropriate. The governing body, when considering the adoption of a redevelopment plan or revision or amendment thereof, shall review the report of the planning board and may approve or disapprove or change any recommendation by a vote of a majority of its full authorized membership and shall record in its minutes the reasons for not following the recommendations. Failure of the planning board to transmit its report within the required 45 days shall relieve the governing body from the requirements of this subsection with regard to the pertinent proposed redevelopment plan or revision or amendment thereof. Nothing in this subsection shall diminish the applicability of the provisions of subsection d. of this section with respect to any redevelopment plan or revision or amendment thereof.
This section provides:
All provisions of the redevelopment plan shall be either substantially consistent with the municipal master plan or designed to effectuate the master plan; but the municipal governing body may adopt a redevelopment plan which is inconsistent with or not designed to effectuate the master plan by affirmative vote of a majority of its full authorized membership with the reasons for so acting set forth in the redevelopment plan.
The Board does not dispute that it failed to transmit its report to the Council within the forty-five day timeframe. Indeed, it admits it did not conduct a hearing on the referral until sixty-three days after receiving it. At the hearing, two Board members advised the Board's attorney they lived within two hundred feet of the area slated for redevelopment. The Board chairman asked whether recusal was necessary as there was "no actual application" before the Board. The Board's attorney acknowledged that, but replied that because "[t]here will be [a] vote taken[,] . . . out of an abundance of caution, it would be best for [the two members] to avoid participating or voting on the application."
The hearing was conducted on September 13, 2011. At the start of the meeting, the Board chairman noted that the Fieldstone presentation had been scheduled for the prior month but "Fieldstone . . . agreed . . . to go to September as an accommodation" for another application.
The discussion on these recusals is very brief. As noted, one of the Board members states clearly that he lives within 200 feet of the "new development" but the other says only, "[U]s too, we're within 200 feet." We read the remarks to indicate that both Board members lived within 200 feet of the area designated for redevelopment in the Town Center East Project.
The two Board members left the dais, and neither participated in the discussion of the application that evening. The attorney for Fieldstone began his presentation by explaining to the Board members that they were being asked "at the request of the Governing Body, to review amendments proposed to the Redevelopment Plan [by the redeveloper]. And those amendments are proposed pursuant to the Redevelopment Law, not pursuant to [the] Municipal Land Use Law." Counsel went on to explain that Fieldstone, as the redeveloper, was presenting for the Board's review the "few modest amendments" to the Borough's existing zoning "necessary to build . . . the approved Concept Plan, without variances or waivers."
During the course of the presentation, Board members asked several questions about proposed building heights and parking, and, specifically, whether the Concept Plan Fieldstone's professionals were explaining was the one approved by the Borough Council. Counsel replied that "[w]e're showing you some modest refinements in the Concept Plan. But, in the end, what we need is an Ordinance that permits the Concept Plan that was approved in the [Redevelopment] Agreement. . . . The kind of minor deviations we're talking about, I think they're really irrelevant to that basic standard." After several similar exchanges, counsel for Fieldstone suggested the redeveloper "come back . . . with answers to all of those questions" with "a point by point comparison where technical changes in the Concept[] Plan, like the firehouse parking" were made. Counsel also agreed with the Board's attorney that Fieldstone would "consent to an extension of time within which the Board has to make a report to the Governing Body."
Fieldstone, however, did not return to the Board. Instead, fifteen months later, the Board retained the Ragan Design Group Planning, LLC, the same entity that drafted the Borough's Master Plan and a parking management study for the downtown area, to analyze Fieldstone's Redevelopment Plan Amendment for its consistency with the Borough's Master Plan, the Redevelopment Plan and the parking study.
At a meeting of the Joint Land Use Board in January 2013, the Ragan Group presented its findings that the proposed Redevelopment Plan Amendment was inconsistent with the Borough's Master Plan in terms of parking, building heights and allowing residential development, including townhouses and multi-family buildings as a permitted principal use. In a subsequent letter to the Board, the Ragan Group addressed the Borough's 2008 Redevelopment Plan Amendment, reiterating its earlier conclusion that the proposed amendment was inconsistent with the Master Plan with respect to the proposed maximum building height and that the proposed parking requirements were inconsistent with both the Master Plan as well as the underlying objectives of the 2008 Amended Redevelopment Plan.
The Board relied on Ragan's recommendations in adopting the resolution that Fieldstone challenges on this appeal. The two Board members who had initially recused themselves from the discussion both voted in favor of the resolution without comment. The Borough Council subsequently adopted the recommendation of the Board in rejecting Fieldstone's proposed Redevelopment Plan Amendment.
Fieldstone's prerogative writs action and this appeal are limited to the actions of the Joint Land Use Board and do not address the Borough Council's rejection of its Redevelopment Plan Amendment.
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After hearing extended argument from counsel on the same two points asserted on appeal, the Law Division entered judgment dismissing Fieldstone's prerogative writs complaint. The court rejected Fieldstone's contention that the Board's resolution was invalidated by participation of the two Board members who had originally recused themselves from the discussion. Specifically, the court found no
per se disqualification of a planning board member . . . when considering a . . . redevelopment plan amendment, premised upon residency within 200 feet or frankly within any specific distance from the boarders of the area affected by the redevelopment plan.
My answer would be different if the board member . . . lived within the redevelopment plan [area], since clearly the legislature contemplated they had an interest, and therefore, would have to be noticed. The touchstone is whether in fact the voting member . . . has an interest. There is no evidence in front of me to indicate they have an interest. The transcript before me indicates that their recusal was premised upon residing within
200 feet, not upon any other interest in the property or the area, and that, to me, clearly is premised upon a concern that the 200 feet limitation may apply in redevelopment cases.
There's no law to suggest it does. I'm not going to read the per se prohibition [in], and I conclude that it, in fact, does not [apply]. There was, therefore, no requirement that the planning board members recuse simply because they resided within 200 feet.
The court also rejected Fieldstone's contention that the Board's failure to transmit its recommendation to the Borough Council within the forty-five days allowed by N.J.S.A. 40A:12A-7e invalidated the recommendation. Considering the words chosen by the Legislature, the court concluded that although the Board is required to submit its findings within forty-five days, "the only impact under the statute of [its] failure to do [so], relieves the Borough Council of the requirement that [it] consider [the recommendation] and set forth detailed reasons" for not following it.
We agree with the trial judge that no provision of the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49, requires members of a planning board living within 200 feet of a redevelopment area to recuse themselves from participation in a consistency review of a proposed amendment to a redevelopment plan pursuant to N.J.S.A. 40A:12A-7e, and that no evidence of any other basis for recusal was present on the record.
The Local Redevelopment and Housing Law does not contain a provision comparable to N.J.S.A. 40:55D-62.1 requiring notice of a proposed amendment of a zoning ordinance to the owners of real property within 200 feet of the boundaries of the zoning district. In the context of the designation of an area in need of redevelopment, the Legislature has determined that only owners of record, and those whose names are listed on the tax assessor's records within the area targeted for redevelopment are entitled to actual notice. N.J.S.A. 40A:12A-6b(3)(d); Iron Mountain Info. Mgmt., Inc. v. City of Newark, 202 N.J. 74, 78-79 (2010).
Accordingly, Fieldstone's reliance on McNamara v. Borough of Saddle River, 64 N.J. Super. 426, 430-31 (App. Div. 1960), in which we invalidated a zoning ordinance amendment based on a councilman's disqualifying interest, is misplaced. The zoning ordinance in McNamara was targeted at a particular property being used as a day school within 200 feet of the councilman's property. Id. at 430. We reasoned that the Legislature's requirement that the owners of any property within 200 feet of property to be affected by an appeal to a zoning board receive notice of the proceedings, was tantamount to a declaration of interest in the zoning treatment of that property on the part of those owning other property within 200 feet of it. Ibid. Accordingly, we concluded the councilman had a disqualifying interest requiring invalidation of the ordinance.
To apply the analogy we employed in McNamara to this situation would be to stretch it beyond the breaking point because the Local Redevelopment and Housing Law does not require individual notice to anyone outside the area targeted for redevelopment. There is simply nothing in the legislation tantamount to "a declaration of interest" in the designation of a property in need of redevelopment on the part of those owning other property within 200 feet. As Fieldstone failed to adduce any evidence that the two board members at issue had any direct or indirect pecuniary or personal interest in the proposed redevelopment plan amendment as would require their disqualification, see generally Wyzykowski v. Rizas, 132 N.J. 509, 525-26 (1993), we agree with the trial court that their participation does not invalidate the Board's resolution.
Fieldstone's argument that the Board's failure to transmit its recommendation to the Borough Council within the forty-five days allowed by N.J.S.A. 40A:12A-7e invalidated the recommendation is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As the trial court correctly noted, N.J.S.A. 40A:12A-7e makes perfectly clear that the only consequence of the Board's failure to transmit its recommendation to the governing body within the forty-five day timeframe is to relieve that body of considering the Board's recommendation and explaining its reasons for disregarding any aspect of it. Nothing in the statute prohibits the governing body from considering an untimely report from the Board.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION