On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-1-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn, Fuentes and Chambers.
In this action in lieu of prerogative writs, plaintiff, an association of South Kearny businesses, sought to invalidate Ordinance 64, passed by the Town of Kearny on November 9, 2004. Plaintiff has brought this appeal seeking to overturn the trial court's decision upholding the Ordinance. We affirm.
South Kearny consists of a 1.5 square mile area that is physically separated from the rest of Kearny and is bordered by the Hackensack River on the east, the Passaic River on the west, the Newark Bay on the south, and a large railroad yard and the Hackensack Meadowlands on the north. No residential housing is located in South Kearny. Due to its proximity to major highways, namely the New Jersey Turnpike, Routes 1 and 9, Route 78 and Route 280, and the railroad line, South Kearny has substantial truck terminals and truck-related activities.
Prior to the enactment of Ordinance 64, truck terminals and trucking related activity had been permitted throughout South Kearny. Ordinance 64 changes that arrangement by dividing South Kearny into two zones: South Kearny Industrial North (SKI-N) and South Kearny Industrial South (SKI-S). A major distinction between the two zones is that certain trucking uses are not permitted as principal uses in SKI-S while they are permitted uses in SKI-N. Specifically, Ordinance 64 allows the "storage, parking or use of trucks, tractors, trailers, containers or any similar structure for storage purposes on a permanent basis" in SKI-N, but prohibits those uses in SKI-S. According to the municipality, the creation of the two zones is designed to achieve a balance in South Kearny between trucking uses on one hand and warehouse/distribution and other uses on the other, and to encourage redevelopment in South Kearny which would increase tax ratables.
Ordinance 64 seeks to promote a better visual environment by requiring that "[a]ll operations, activities and storage . . . be conducted within completely enclosed buildings." However, certain exceptions from this requirement are allowed in the SKI-N zone, including outdoor storage of containers and off street parking and loading, so long as a twenty-five foot buffer zone with landscaping is provided. In addition, outdoor containers may not be stacked more than two containers high.
Plaintiff objected to various provisions in the Ordinance, including the exclusion of trucking uses in SKI-S and the twenty-five foot buffer and the two-container stacking limit for outdoor container storage. Plaintiff also objected to the placement of the boundary between the two zones, contending that many existing trucking uses are now in SKI-S.
In this action in lieu of prerogative writs commenced on December 28, 2004, plaintiff asserted numerous claims against the Town of Kearny and its mayor, town council, and planning board, including contentions that the ordinance is arbitrary and capricious and that it violates various constitutional provisions and federal statutes.
After discovery, the trial court decided defendants' motion for summary judgment, issuing a comprehensive forty-one page written decision dated May 4, 2006. The trial court dismissed plaintiff's claims in count two (alleging that the ordinance constitutes an unconstitutional taking of property), count three (alleging that the ordinance unconstitutionally impinges on plaintiff's members' freedom of contract by interfering with existing contractual obligations essential to their businesses, and alleging that the ordinance violates the Federal Commerce Clause by impairing the flow of interstate commerce), count four (federal equal protection claims only), count seven (alleging that the ordinance is inconsistent with the Town's Master Plan, and therefore violates the Municipal Land Use Law), count eight (alleging certain procedural defects in the adoption of the ordinance), and count nine (alleging inconsistencies between the boundary line between SKI-N and SKI-S and the boundary line in an earlier Master Plan). The trial court rejected plaintiff's additional arguments, which were not in plaintiff's complaint but were raised in its brief, that to the extent the ordinance restricts truckers who transported and stored hazardous wastes, the ordinance is preempted by the Federal Hazardous Materials Transportation Act (HMTA), 49 U.S.C.A. §§ 5101 to -5128. The trial court also rejected plaintiff's argument that the ordinance affected railroad property, and was therefore preempted by the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C.A. §§ 10101 to -16101.
The trial judge found that plaintiff was entitled to a plenary hearing on count one (alleging that the ordinance is arbitrary and capricious, and an unconstitutional attempt to regulate land use), count four (alleging due process claims), and count five (alleging that the ordinance is an impermissible exercise of the Town's police power). A plenary hearing on these counts was held on September 18, 19 and 20, 2006.
At the plenary hearing, plaintiff presented the testimony of Roger DeNiscia, a professional planner who was critical of Ordinance 64 and who testified as an expert witness. William Moscatello, the owner of Block 289, Lots 15 and 15R, located in the SKI-S zone, testified that his property had been used for trucking storage and freight forwarding for at least twenty years, and maintained that Ordinance 64 made his property "basically useless." Frank Kearny, another property owner, also testified to the negative impact that Ordinance 64 would have on his property. Defendant presented the testimony of Michael Martello, the town construction official zoning officer, and Susan Gruel, a professional planner who testified as an expert witness.
After the plenary hearing, in a twenty-five page written decision dated October 27, 2006, the trial court rejected plaintiff's claims. The trial court found that the Ordinance advanced the purposes of the Municipal Land Use Law, as set forth in N.J.S.A. 40:55D-2(a), (g), (i) and (m). The trial court noted that the ordinance guided development to promote the public health, safety, morals and general welfare and promoted a desirable visual environment. Further, Ordinance 64 was found to be substantially consistent with the Master Plan and Reexamination Report of that Master Plan made in July 2002, as required by N.J.S.A. 40:55D-62(a). The trial court also found that the balance sought by Ordinance 64 between warehousing and distribution in the SKI-S and trucking facilities in SKI-N "represents a valid zoning purpose." Relying on Gruel's testimony and a color-coded map admitted into evidence, the trial court determined that there was a rational basis for the boundary selected since the "identification of most of the trucking terminal facilities ...