On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket Number MER-L-3247-02.
Before Judges Ciancia, Parker and R.B. Coleman.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this case of first impression, the principal issue is whether a private, non-profit entity designated by a municipality as a redeveloper of property donated to it by the municipality is a "public body" within the meaning of the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, thereby requiring the Board of Trustees of the redeveloper to open its meetings to the public. The secondary issue is whether the redeveloper is a "public agency" subject to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. We hold that under the facts presented, the redeveloper is a "public body" and a "public agency" subject to OPMA and OPRA.
Plaintiff, The Times of Trenton (Times), is a Mercer County newspaper, circulated throughout the State. Defendant, Lafayette Yard Development Corporation (Lafayette Yard), was designated by the City of Trenton (City) to redevelop a 3.1 acre tract of land donated to it by the City. The redevelopment project consists of a 197-room hotel and conference center with on-site parking operated by Marriott Hotels.*fn1
Early in March 2002, Times reporter, Albert Raboteau (Raboteau), was barred from attending defendant's Board meeting. When Raboteau claimed that he had a right to attend the meeting under OPMA, Trenton Mayor Douglas H. Palmer informed him that Lafayette Yard was a private organization and OPMA did not apply.
Counsel for the parties then negotiated an agreement to permit Raboteau to attend the monthly Board meetings. Pursuant to the agreement, Raboteau appeared at the June 27, 2002 meeting. Board Chair Alan Mallach ordered Raboteau to leave the room, however, while the Board discussed a "pending financial transaction." At the August 29, 2002 meeting, Raboteau was again ordered to leave the room.
After the reporter was asked to leave two consecutive Board meetings and was denied access to the meeting minutes, the Times filed a complaint in lieu of prerogative writs seeking to (1) enjoin the Board from closing its meetings to the public in violation of OPMA; and (2) require the Board to make the minutes of all past and future Board meetings available for public inspection as required by OPMA. The trial judge found that defendant was neither a "public body" within the meaning of OPMA nor a "public agency" within the meaning of OPRA and dismissed the complaint.
Lafayette Yard was incorporated on June 8, 1998, as a private, non-profit corporation, pursuant to the New Jersey Nonprofit Corporation Act, N.J.S.A. 15A:1-1 to 16-2, Internal Revenue Service (IRS) Revenue Ruling 63-20 and IRS Revenue Procedure 82-26, for the express purpose of redeveloping 3.1 acres of property donated to it by the City. The Board is appointed by the Mayor and City Council and the property will revert to the City after completion of the project and repayment of the debt. Lafayette Yard's certificate of incorporation states in part:
The purpose of the Corporation is to assist the City of Trenton (the"City"), the Trenton Parking Authority and the State of New Jersey to provide for the redevelopment of a 3.1 acre site known as the Lafayette Yard property located in the City, initially consisting of a hotel, conference center and parking facility.....
The number of Trustees of this Corporation shall be seven (7). The original five... have been designated by the Mayor of the City. The remaining two Trustees will be designated by the City Council at a later date.....
The duration of the Corporation shall be perpetual, except that consistent with the provisions of Internal Revenue Service Revenue Ruling 63-20 and Revenue Procedure 82-26, title to all property of the Corporation shall be conveyed to the City upon payment or provision therefore of all indebtedness incurred by the Corporation for the purposes described herein.
In the event of dissolution or liquidation, the certificate of incorporation provides that"the Board of Trustees shall, after paying or making provision for the payment of all the lawful debts and liabilities of the Corporation, distribute all the assets [to] the City."
The bylaws mirror the certificate of incorporation and provide that"[t]he property and affairs of the Corporation shall be controlled by, and its government shall be vested in, a Board of Trustees," appointed by the Mayor and City Council. The bylaws state that the Board members, who serve without compensation, shall include residents of the City, representatives of community, civic, business and other organizations in or out of the City, and anyone else interested in improving the quality of life of the City. The bylaws further provide that any trustee may be removed for cause by either a majority vote of the Board or"by a majority vote of the City Council... [and] approved by the Mayor of the City."
On July 1, 1999, the City adopted Resolution No. 99-527, approving the transfer of the 3.1 acre tract to Lafayette Yard, along with the vacated portion of the right-of-way of Peace Street (Memorial Drive). The resolution provided in part:
WHEREAS, the City of Trenton has identified the development of a downtown hotel and conference center as a key element in the city's economic development strategy; and
WHEREAS, to this end, the City has amended the John Fitch Way 1 Redevelopment Plan to permit the Lafayette Yard site (the"Property") to be used for development of the hotel and conference center and associated structured parking; and....
WHEREAS, the City of Trenton currently owns or is in the process of acquiring the Property........
RESOLVED, by the City Council of the City of Trenton that:
1. It is determined that [defendant] possesses the qualifications and the financing mechanisms are available which are necessary to acquire and redevelop the Property in accordance with the Redevelopment Plan for the Area; and
2. [Defendant] or its successors and/or assigns are hereby designated as the redeveloper of the above-referenced Property, and are hereby granted the exclusive right to acquire said Property... from the City of Trenton on such terms and conditions as the City of Trenton and the purchaser may establish by mutual agreement...; and....
4. The purchase price is $1.00.... In accordance with the Resolution, the City entered into a Disposition Agreement with Lafayette Yard that designated the City as the "agency" and defendant as the "redeveloper" pursuant to the Local Redevelopment and Housing Law (Redevelopment Law), N.J.S.A. 40A:12A-1 to -49. The Disposition Agreement stated that the City had undertaken the redevelopment project "in furtherance of the objectives of [the Redevelopment Law]... and in accordance with a duly adopted Redevelopment Plan." The agreement stated:
[T]hat the redevelopment of the Property pursuant to this Agreement, and the fulfillment generally of this Agreement, are in the best interests of the City of Trenton and the health, safety, and welfare of its residents, and in accordance with the public purposes and provisions of all applicable Federal, State and ...