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Toys "R" Us, Inc. v. Tp. of Mount Olive

May 16, 1997

TOYS "R" US, INC., APPELLANT,
v.
TOWNSHIP OF MOUNT OLIVE, RESPONDENT.



On appeal from a final determination of the Department of Community Affairs.

Approved for Publication May 20, 1997.

Before Judges Stern, Humphreys and Wecker. The opinion of the court was delivered by Humphreys, J.A.D.

The opinion of the court was delivered by: Humphreys

The opinion of the court was delivered by

HUMPHREYS, J.A.D.

Toys "R" Us, Inc. ("Toys") constructed a large warehouse and distribution center on its property in Mount Olive. Before construction began, Toys obtained various construction permits from the Township of Mount Olive for which Toys paid approximately $560,000. Most of the permits were applied for and paid for in the latter part of 1994. A few were received in February 1995. Mount Olive granted Toys a Certificate of Occupancy in June 1995. A statute, N.J.S.A. 52:27D-126a, prohibits a local enforcing agency from assessing and receiving permit fees in excess of the annual cost of the agency's operations.

Toys filed a petition with the Department of Community Affairs pursuant to N.J.A.C. 5:23-4.18(j) seeking a refund for a portion of the fees charged to it on the ground that the fees were in excess of the annual cost of Mount Olive's operations and therefore contravened N.J.S.A. 52:27D-126a. Mount Olive's 1994 costs in connection with the issuance of construction permits totaled approximately $326,000. Mount Olive's total permit fees in 1994 exceeded $900,000.

The Department denied Toys' petition. Toys appeals, contending: (1) the Department should have conducted a hearing prior to rendering its decision; and (2) the Department's denial of the refund was arbitrary, capricious and unreasonable.

We have thoroughly reviewed the record and affirm the Department's decision.

I

Toys argues that it was entitled to but did not receive a hearing on its petition.

The Administrative Code provides that "if, upon investigation, the commissioner determines that there is reason to believe that the fees in question do not meet the standards established [in the Code], then the commissioner shall set a time and the place for a hearing." N.J.A.C. 5:23-4.18(j)(1)(ii).

The Uniform Administrative Procedure Rules define a "hearing" as "a proceeding conducted by a Judge for the purpose of determining disputed issues of fact, law or Disposition." N.J.A.C. 1:1-2.1. By statute, a hearing is to be held in any "contested" case. N.J.S.A. 52:14B-9(a). A contested case is defined as

a proceeding . . . in which the legal rights, duties, obligations, privileges, benefits or other legal relations of specific parties are required by constitutional right or by statute to be determined by an agency by decisions, determinations, or orders, addressed to them or ...


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