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Estate of Dolente v. Borough of Pine Hill

June 30, 1998


The opinion of the court was delivered by: Wefing, J.A.D.

Argued: May 28, 1998

[9]    Before Judges Baime and Wefing.

On appeal from the Superior Court of New Jersey, Law Division, Camden County.

Adele Dolente and the Estate of Carl Dolente (Dolentes) own a seventy-three acre tract in the Borough of Pine Hill, New Jersey. They appeal the trial court's order that granted Pine Hill's motion for summary judgment and dismissed their complaint in which they sought to challenge the borough's declaration that their property was in need of redevelopment and subsequent rezoning. We reverse and remand for further proceedings.

The Dolentes' challenge rested both upon the Local Redevelopment Housing Law (N.J.S.A. 40A:12A-1 to -49) (Redevelopment Act) and the Open Public Meetings Act (N.J.S.A. 10:4-6 to -21) (OPMA or Sunshine Law). A detailed chronology is required to understand the context in which the Dolentes' challenge arose. We have synthesized the facts from the public documents, certifications and admitted facts contained in the pleadings.

The Dolentes' seventy-three acre parcel is a vacant, wooded tract and in 1990, they applied for and obtained subdivision and site plan approval for residential development on the land. Those plans have not yet come to fruition.

The Dolentes' land is adjacent to another parcel containing one-hundred and eighty-three acres. This second parcel at one point contained a recreation area known as Action Mountain. Action Mountain ceased operations in the 1980's and Pine Hill obtained ownership of the land in 1995 through foreclosure in rem.

In August 1996, Pine Hill advertised for redevelopment studies and in September accepted redevelopment proposals for Action Mountain. These proposals envisioned construction of a golf course upon the combined Dolente and Action Mountain tracts. When Pine Hill accepted the proposals there had been no formal municipal action under the Redevelopment Law.

In October 1996, the Pine Hill borough council passed a resolution which requested the Pine Hill planning board to undertake a study to determine if any areas within the municipality could be considered blighted within the criteria of the Redevelopment Act. A final draft of a redevelopment study, dated November 12, 1996, was submitted to the planning board at its December 3, 1996 meeting. Notice of this meeting was mailed to the Dolentes but no one appeared on their behalf. (Carl Dolente passed away in June 1996. His widow was not involved in active management of his estate and the practice was to forward such notifications to an attorney. The family did not receive it until after the meeting had taken place.)

On November 18, 1996, two weeks prior to the planning board meeting at which the redevelopment plan was to be considered, the municipal council passed on first reading an ordinance approving the redevelopment plan. The ordinance refers to the redevelopment plan "as approved and recommended by the Borough of Pine Hill Planning Board" even though the planning board had, in fact, not yet met to consider the issue. This ordinance contained a notice that it would be considered for final passage on January 1, 1997.

At the December 3, 1996 meeting, the planning board passed a resolution approving the redevelopment area. The next regularly scheduled meeting of the borough council at which the redevelopment area could be considered in the regular course of business was Monday, December 16, 1996.

In compliance with N.J.S.A. 10:4-18, Pine Hill caused to be posted and published in January 1996 a schedule of "council meetings" and "caucus meetings." The notice provided that regular council meetings would be held on the third Monday of each month at 8:00 p.m. The notice provided, "FORMAL ACTION WILL BE TAKEN BEFORE THE PUBLIC AND THE GOVERNING BODY WILL CONSIDER ANY PERTINENT MATTERS ESSENTIAL FOR THE PROPER CONDUCT OF BUSINESS." The notice further provided that caucus meetings would be held on the second Monday of each month at 8:00 p.m. and stated, "ALL CAUCUS MEETINGS WILL BECOME SPECIAL MEETINGS BY ORDER OF THE MAYOR IN THE EVENT THERE IS PERTINENT BUSINESS THAT MUST BE CONSIDERED BEFORE THE REGULAR COUNCIL MEETING."

The council met on Monday, December 9, 1996 at 8:00 p.m. at a regularly scheduled caucus meeting. At the Conclusion of this caucus meeting, the Mayor called a special meeting at 10:00 p.m. At this special meeting, the council passed a resolution accepting the planning board's resolution approving the redevelopment area and approved on first reading an ordinance to rezone the affected property, which included the Dolentes' land. The special meeting adjourned at 10:03 p.m.

On December 27, 1996, the borough council met in a special meeting, notice of which had been provided on December 18, 1996. The attorney for the Dolentes appeared at this meeting to object to the inclusion of the Dolente land in any redevelopment area. Although the notification of the December 27, 1996 meeting mentioned nothing about the Dolente property, it did refer to a Redevelopment Agency. According to the attorney's certification, he inquired of the council whether "any action had been taken regarding the Dolente property and was advised that such action was scheduled for Second Reading and final adoption on January 1, 1997. At no time was I advised ...

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