March 19, 2008
LINCOLN NORTH DEVELOPMENT CORPORATION, PLAINTIFF-APPELLANT,
TOWN OF KEARNY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, ALBERTO SANTOS, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE TOWN OF KEARNY, TOWN COUNCIL OF THE TOWN OF KEARNY, TOWN OF KEARNY PLANNING BOARD, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 8, 2008
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 in the north zone has been proven to the court's satisfaction." The trial court also determined that the screening and buffer requirements for storage facilities and the limit on the height of stacking containers were reasonable and served a valid planning purpose.
In this appeal plaintiff raises the following points:
POINT I ORDINANCE 64 CANNOT STAND. A MULTITUDE OF FACTS, EVIDENCE AND ARGUMENTS SUPPORT THE LEGAL CONCLUSION THAT ORDINANCE 64 MUST BE STRICKEN IN ITS ENTIRETY ON THE GROUND THAT IT IS ARBITRARY AND CAPRICIOUS. ORDINANCE 64 IS INTERNALLY INCONSISTENT AND ABSURD IN ITS APPLICATION. IT VIOLATES A LONGSTANDING PRINCIPLE OF NEW JERSEY ZONING LAW GOVERNING DOMINANT USES OF PROPERTY AND IT IS SO INTRUSIVE OF FEDERALLY PROTECTED COMMERCIAL INTERESTS THAT IT VIOLATES THE CONSTITUTIONAL PROSCRIPTION AGAINST INTERFERENCE WITH INTERSTATE COMMERCE, ALONG WITH A HOST OF OTHER LEGAL AND CONSTITUTIONAL VIOLATIONS.
A. ORDINANCE 64 IS SELF-CONTRADICTORY, AND ITS LITERAL ENFORCEMENT WOULD RESULT IN ABSURD REQUIREMENTS AND APPLICATIONS AND CREATING NON-CONFORMING USES OF THE MAJORITY OF THE PROPERTIES IN SOUTH KEARNY. ITS NEW MANDATES ARE SO SELF-CONTRADICTORY AS TO RENDER IMPOSSIBLE ANY ATTEMPTS AT FUTURE ENFORCEMENT ABSENT THE ARBITRARY AND CAPRICIOUS SELECTION OF ONE CONTRADICTION OVER ANOTHER. ACCORDINGLY, ORDINANCE 64 IS ARBITRARY, CAPRICOUS AND UNENFORCEABLE.
(i) The Absurdities Arising From the Maximum Yard Requirement Issue Render Ordinance 64 Arbitrary and Capricious.
(ii) The Irreconcilable Conflict Between Yard Requirements and Bulk Requirements.
(iii) The Wide "Screen" or Buffer Mandated in the Northern Zone Renders the Ordinance Arbitrary and Capricious.
B. ORDINANCE 64 SHOULD BE STRUCK DOWN BECAUSE IT OUTLAWS AND RENDERS NONCONFORMING WHAT HAD PREVIOUSLY BEEN THE DOMINANT USE IN THE AREA.
C. THE TOWN OF KEARNY'S DUAL ACKNOWLEDGEMENT IN THE REEXAMINATION REPORT OF A PREDICTED LOCAL EXPLOSION IN COMMERCIAL ACTIVITY AS A RESULT OF THE PORTWAY PROJECT AND THE ORDINANCE'S CONCOMITANT SELF-SABOTAGE OF THE AFFECTED AREA'S ABILITY TO ACCOMMODATE THIS ANTICIPATED EXPANSION RENDER THE ORDINANCE ARBITRARY, CAPRICIOUS, NULL AND VOID.
D. THE REQUIREMENT THAT ALL ACTIVITIES BE CONDUCTED IN COMPLETELY ENCLOSED AREAS IS ARBITRARY AND CAPRICIOUS.
E. ORDINANCE 64'S STRICT LIMITATIONS ON CONTAINER STORAGE ARE ARBITRARY AND CAPRICIOUS.
F. THE UNEXPLAINED ALTERATION OF THE DIVIDING LINE BETWEEN THE NORTHERN AND SOUTHERN ZONES IS ARBITRARY AND CAPRICIOUS.
G. THE DIVIDING LINE SPLITTING MELON LEASING, CSX AND HUDSON CIRCLE PROPERTIES, WHICH HAVE THE SAME TRUCKING USES, INTO PARTIAL-NORTHERN AND PARTIAL-SOUTHERN ZONE PROPERTIES IS ARBITRARY AND CAPRICIOUS.
THE TRIGGERING OF ORDINANCE 64 AND OBTAINING A VARIANCE AS A "REMEDY."
POINT II ORDINANCE 64'S EVISCERATION OF SOUTH KEARNY'S NATIONAL TRUCKING INDUSTRY CANNOT WITHSTAND SCRUTINY UNDER THE COMMERCE CLAUSE OF THE UNITED STATES CONSTITUTION.
POINT III ORDINANCE 64 CONFLICTS WITH AND IS PREEMPTED BY FEDERAL LAW RELATING TO TRUCKING OF HAZARDOUS SUBSTANCES.
A. PREEMPTION UNDER THE HAZARDOUS MATERIALS TRANSPORTATION ACT.
B. PREEMPTION UNDER THE INTERSTATE COMMERCE TERMINATION ACT.
POINT IV ORDINANCE 64 VIOLATES THE SUBSTANTIVE COMPONENT OF THE DUE PROCESS CLAUSE.
POINT V ORDINANCE 64 EXCEEDS THE TOWN OF KEARNY'S POLICE POWERS.
POINT VI ORDINANCE 64'S PUNITIVE MEASURES AGAINST TRUCKING ISSUES, IN STARK CONTRAST TO OTHER PERMITTED USES, VIOLATES THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION, AS WELL AS THE GUARANTEE OF EQUAL PROTECTION UNDER THE NEW JERSEY CONSTITUTION.
POINT VII ORDINANCE 64 CONSTITUTES AN UNLAWFUL TAKING WITHOUT JUST COMPENSATION UNDER THE UNITED STATES CONSTITUTION AND THE NEW JERSEY CONSTITUTION.
POINT VIII ORDINANCE 64 VIOLATES LINCOLN NORTH'S CONSTITUTIONAL LIBERTY OF CONTRACT.
POINT IX THE PROCLAMATION OF ORDINANCE 64 WAS BESET WITH PROCEDURAL IRREGULARITIES WHICH MANDATE ITS INVALIDATION.
When reviewing the trial court's decision on a motion for summary judgment, we must employ the same standard that governs the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). The motion will be granted where there is "no genuine issue as to any material fact," and the movant is entitled to judgment as a matter of law. R. 4:46-2(c). We must deny the motion if, after looking at the evidence in the light most favorable to the nonmoving party, a rational fact finder could hold in that party's favor. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Thus, to grant plaintiff summary judgment, we must find after giving defendant the benefit of all of the favorable inferences that can be drawn from the evidence, that no rational fact finder could hold for defendant. Further, where the motion involves questions of law, this court owes no deference to the trial court on the legal questions. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We have reviewed with care the trial court's forty-one page written decision dated May 4, 2006, deciding defendant's motion for summary judgment, and discern no basis to disagree with the determinations made in that decision, all of which are well-supported by the law and undisputed facts.
When considering the determinations made by the trial court after the plenary hearing, we defer to the credibility findings made by the trial judge. Because a trial court "'hears the case, sees and observes the witnesses, [and] hears them testify,' it has a better perspective than a reviewing court in evaluating the veracity of witnesses." Cesare v. Cesare, 154 N.J. 394, 412 (1998). However, we owe the trial court no special deference on questions of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, supra, 190 N.J. at 378.
After a careful review of the record and the applicable law, we affirm substantially for the reasons set forth by the trial judge in his comprehensive opinion of October 27, 2006. We note that plaintiff's contention that Ordinance 64 has an internal conflict between certain maximum yard requirements and minimum bulk requirements was not addressed by the trial judge, since it was not properly raised below. For that same reason, we decline to address this argument.
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