On appeal from the New Jersey Meadowlands Commission.
Before Judges Kestin, Alley and Falcone.
The opinion of the court was delivered by: Kestin, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION May 5, 2005
Infinity Broadcasting Corporation (Infinity) and Inner City Broadcasting Corporation (Inner City), invoking Rule 2:2-3(a)(2), appeal from resolutions of the Meadowlands Commission adopting amendments to a redevelopment agreement with EnCap Golf Holdings, L.L.C. (EnCap) relating to a portion of the Hackensack Meadowlands District. After the appeal was initiated, we granted EnCap's motion to intervene as a respondent.
The agreement between the Commission and EnCap initially addressed plans for commercial, recreational and residential uses but did not establish a particular project design or site plan. Infinity and Inner City each own property within the District bordering the project area. They operate radio stations broadcasting from towers on those properties. The Commission held hearings on proposed amendments to the redevelopment agreement, at which representatives of Infinity and Inner City testified and submitted expert reports opining that the proposed buildings in the project area had the potential for interfering with the radio stations' broadcast signals to the extent, possibly, of requiring the radio stations to cease operations. Infinity and Inner City sought, inter alia, the imposition of specific limits on building heights, but the Commission adopted the resolutions without such limitations.
On appeal, Infinity and Inner City claim violations of administrative due process, specifically that they were unduly limited in their presentations at the hearing, and that the amendatory resolutions were based on insufficient findings. They contend that the result reached was fundamentally flawed because the Commission acted arbitrarily and capriciously in adopting the resolutions without reference to the effect the contemplated construction would have on the radio stations. Specifically, Infinity and Inner City argue that the Commission did not fully consider the expert reports offered by Infinity and Inner City; took no account of the property values affected by the proposed construction or whether relocation of the radio stations would be required; and failed to consider whether the purposes of the redevelopment plan could be accomplished by relocating structures of a height that interfered with the radio signals.
Infinity and Inner City also argue that the resolutions violated basic principles of land use law, that the Commission's failure to ensure the absence of interference with their signals effected a taking of their property, and that the administrative action resulted in a regulation of appellants' abilities to broadcast their signals that violated exclusive federal jurisdiction over broadcasting.
Appellants seek a remand to the Law Division for the development of a record and decision. We conclude that the administrative action challenged is not amenable to review in this court at this time. Accordingly, we dismiss the appeal without prejudice to the rights of Infinity and Inner City to vindicate their claims in a proceeding in lieu of prerogative writs in the Law Division.
The Commission is a political subdivision of the State created to govern the District. See N.J.S.A. 13:17-5. Among the powers conferred by the Legislature on the Commission are the acquisition and development of property, see N.J.S.A. 13:17-6(g), and the authority to regulate the use of land in the District through adoption of a master plan, see N.J.S.A. 13:17-9, and in other ways. See generally, N.J.S.A. 13:17-9 to -22. The Commission's regulations have established numerous zones, and specially planned areas in the District.*fn1
Radio towers have not been a permitted use in the light industrial and distribution zones in place at the time of the events depicted here. These zones had no specified height limits for structures, but some height limits did exist that were more or less pervasive from zone to zone.
On October 26, 2000, the Commission and EnCap entered into a landfill closure and development agreement ("the agreement"), encompassing a two-phase project to redevelop six landfills within the District ("the project") on sites leased from the Commission. In phase one, Encap would close and cap four landfills, and construct a thirty-six-hole golf course facility and "related amenities", such as a hotel or resort complex of 330 to 650 rooms. At EnCap's option, it could also construct up to 1356 apartments or townhouses that would be sold as timeshare units. Phase 2, if EnCap chose to pursue it, would require EnCap to close and cap the remaining landfills and construct another thirty-six-hole golf course facility. The agreement also allowed EnCap to propose additional projects.
In January 2001, the Commission announced the redevelopment plan resulting from the agreement with EnCap and adopted it on February 28, 2001. The plan outlined the project as encompassing five sites with similar redevelopment needs, totaling approximately 1330 acres. It recited that existing uses in the project area included landfills, radio towers, public utilities, and the Commission's offices; while nearby uses were residences, offices, commercial and industrial activities, warehouses, and a cemetery. The plan further explained that the Commission believed a project that emphasized golf courses was the best way to achieve, within "a reasonable time frame," its objectives of closing the landfills, making environmental improvements to the existing wetlands and wildlife management areas, and promoting economic development that would appeal to residents of the immediate area and "complement the large corporate sector located in and around" the area.
At least half of the project area would be reserved for open space. The golf courses would count as open space, but at least fifteen percent of the total project area had to be other open space. The maximum height of all buildings was limited to twenty-five stories, exclusive of rooftop mechanical equipment or antennas.
Infinity and Inner City each operate AM radio stations, respectively WINS and WLIB, located on properties they own in the district but which are outside the redevelopment area. Both stations use towers to broadcast their signals. The towers are less than two-thirds of a mile apart from each other. They predate the Legislature's creation of the District and the establishment of the Commission's zoning authority.
Infinity's tower is in a zone that was designated as "service highway commercial." That tower is no more than a few hundred feet away from the redevelopment area. It is bordered mostly by other lots in that zone, but also by zones designated for relatively small light industrial and distribution uses-- where radio towers are a "special exception" use--and commercial park uses.
Inner City's tower is in a zone that was designated as "parkside residential." That tower is bordered on two sides by the area that was designated as a "service highway commercial" zone which includes Infinity's lot. Inner City's tower is not near a light industrial and distribution zone. A small part of Inner City's lot lies within the redevelopment area. That part is not needed for the ...