On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-316-03.
The opinion of the court was delivered by: C.L. Miniman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and C.L. Miniman.
Plaintiff Mountain Hill, L.L.C., appeals the dismissal of its action under the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, against defendants Township of Middletown (the Township); Peter Carton, the Chairman of the Township Municipal Republican Party; Joan Smith, a Township Committee member; Rosemarie Peters, the Township Mayor; Patrick Parkinson, a Township Committee member; James Hinkley, Chairman of the Township Board of Adjustment and President of the Middletown Republican Club; Judith Stanley, Chairperson of the Township Planning Board; and Clifford Raich, a member of the Township Planning Board and Vice-President of the Middletown Republican Club. The matter was tried to a conclusion before a Chancery Division judge, who issued a written opinion and concluded that the OPMA had not been violated. We affirm.
This appeal is one of four appeals argued before us on January 22, 2008,*fn1 with a fifth appeal scheduled for argument on April 7, 2008. In this appeal plaintiff contends that the Committee violated the OPMA when its members discussed at closed political caucus meetings three proposed, and later adopted, ordinances that would adversely affect plaintiff's property. We have previously decided appeals concerning two of those adopted ordinances, one on July 5, 2002, and the other on April 16, 2003. Mountain Hill, LLC v. Middletown Twp., 353 N.J. Super. 57 (App. Div.), certif. denied, 175 N.J. 78 (2002) (Mountain Hill I); Mountain Hill, LLC v. Middletown Twp., Nos. A-1968-01, A-2556-01 (App. Div. April 16, 2003) (Mountain Hill II). The third ordinance was adopted in 2004.
In Mountain Hill I we set forth the following facts:
Middletown Township is a large suburban municipality located in northeast Monmouth County. Middletown is governed by a five member committee pursuant to a special charter enacted by the Legislature in 1971. Mountain Hill, LLC is the owner and/or contract purchaser of a tract of approximately 135 acres, mostly vacant, with extensive frontage along northbound State Highway 35 in Middletown.
In 1993, the Middletown Township Planning Board adopted a master plan which recommended that a substantial portion of Mountain Hill's property be zoned for mixed uses. In 1994, the Township Committee re-zoned 85 acres of Mountain Hill's tract from business and industrial uses to the newly created PD (planned development) zone, which allowed mixed uses. The balance of the tract, 50 acres, remained in the M-1 (light industrial) zone. No amendments to the PD zone were enacted by the Township Committee from 1994 through 2000.
In September 2000, Mountain Hill filed an application with the Middletown Township Zoning Board seeking a use variance for the 50 acres still zoned industrial to allow Mountain Hill to develop a commercial/residential project on its entire 135 acre tract. The project was named the "Middletown Town Center." The proposal generated a substantial public controversy.
In March 2001, the Township Committee introduced Ordinance 2001-2632 which sought to amend and "down-zone" the existing PD zone, substantially reducing what Mountain Hill could build on its property. Mountain Hill filed a valid protest under N.J.S.A. 40:55D-63 objecting to the proposed zoning ordinance. At the June 4, 2001 Township meeting, the proposed ordinance was discussed. One of the members recused himself because of a conflict of interest. During the meeting, one of the four remaining members stated that "[f]or anything to pass here, it's going to require all four of us. All right. Just understand that. Anyone of us can block this whole ordinance." The Township's attorney did not comment on this statement. The ordinance was ultimately rejected by the Township Committee.
On June 18, 2001, the Township Committee proposed Ordinance 2001-2644, which also sought to "down-zone" the PD zone. Mountain Hill again filed a valid protest under N.J.S.A. 40:55D-63 objecting to the proposed ordinance. At the public hearing on July 2, 2001, the Township's attorney announced that one of the five committee members present, Mr. Brodsky, had "recused himself with regard to this matter, as he has in the past . . . ." He then advised the Township Committee that "if a member has recused themselves, they are, in essence, resigned from the Committee for purposes of this application which means that effectively there are four, all the members of [the] governing body are four." Accordingly, he concluded that three affirmative votes [were] needed to carry the ordinance under N.J.S.A. 40:55D-63. Following that discussion the vote was taken, with three votes in the affirmative and one vote in the negative, and the ordinance declared adopted. [Mountain Hill I, 353 N.J. Super. at 59-61.]
We then held that N.J.S.A. 40:55D-63 requires that an ordinance be passed by two-thirds of all of the members of a municipal body, even though one or more do not vote on a particular municipal ordinance. Id. at 65. Because the Township Committee is comprised of five members, we held that the down-zone ordinance could only be adopted by four affirmative votes, not three as the Township's attorney advised. Id. at 66. Thus, we affirmed the judgment vacating the July 2, 2001, ordinance down-zoning the PD zone.
In Mountain Hill II we considered Ordinance 2001-2617 relating to open-space requirements and providing "that 'not more than 50% of the area set aside shall consist of wetlands, open bodies of water or water courses, sloped areas of 25% or greater, detention or retention basins, swales and other drainage structures.'" Mountain Hill II, supra, slip op. at 2. The trial judge concluded that the ordinance was invalid because it conflicted with the definition of "open space" in N.J.S.A. 40:55D-5 and Rick Brodsky, Esquire, one of the Township Committee members approving "the ordinance[,] had a disqualifying conflict of interest." Ibid. We stated the following facts that are relevant here:
Plaintiff is owned by Joseph Azzolina, Jr., and his cousin Phil Scadutto. It possesses or has contracted to purchase approximately eighty-five acres of land, which makes up almost all of the property in the Township's [PD] zone. Other members of the Scadutto and Azzolina families also own land and businesses in Middletown.*fn2 . . .
In "mid-2000," plaintiff publicized a concept plan to construct a mixed-use development that would include 1,700,000 square feet of retail and office space and over 400 residential units, including twenty-five affordable housing units. The proposed development generated substantial interest among Township officials and members of the public, many of whom opposed the proposal. The project also required a variance as some of the property was located within a light industrial zone. While the variance application was pending, the Township considered several ordinance changes, including the Ordinance in issue and another ordinance reducing the floor area ratio in the PD Zone. [Id., slip op. at 3-4.]
The open-space ordinance was adopted on February 20, 2001,*fn3 by a unanimous vote. "Brodsky was a partner in the law firm of Ansell, Zaro, Grimm and Aaron, which had represented plaintiff, plaintiff's principals, and persons related to plaintiff's principals, for over thirty years." Id., slip op. at 5-6. Plaintiff made no objection to Brodsky's presence that day because he had assured "Azzolina that he would not participate in any matters regarding the PD Zone, and the governing body had instructed Brodsky not to participate in any issues regarding the PD Zone." Id., slip op. at 6. We affirmed the invalidation of the ordinance based on Brodsky's conflict of interest and did not address the other basis for declaring the ordinance invalid. Id., slip op. at 16.
With the facts developed in Mountain Hill I and Mountain Hill II as background, additional facts were developed in the trial of this action.*fn4 Carton was the Chairman of the Municipal Republican Party from 1994 through 2004. Throughout that time every Township Committee member was a Republican. Brodsky was first elected to the Township Committee in November 1995 and was a Committee member from 1996 through 2003.*fn5 The other members of the Township Committee from January 1996 through 2003 were Rosemary Peters, Ray O'Grady, Parkinson and Smith. The Mayor, who is always a Committee member, was elected by the Township Committee each January.
Regular Township Committee meetings are held on the first and third Mondays of the month and take place at Town Hall, with an executive session at 7:00 p.m. followed by a public meeting at 8:00 p.m. Every Thursday each Committee member receives a packet of materials delivered to his or her home whether or not a meeting is scheduled for the following Monday. The packet contains correspondence of all types, including citizen complaints and correspondence regarding bond resolutions and grants; internal memoranda; announcements of events in the Township; monthly reports from various departments and the minutes of the Township Board of Adjustment and Planning Board. On Thursdays before Monday public meetings, the packet contains the agenda for the meeting. If an ordinance is on the agenda, a draft of the ordinance is also included in the packet. The packet was generally about three inches thick.
As a Committee member Brodsky was invited to Municipal Republican Party political caucus meetings on Saturdays at either Carton's home or a Committee member's home. There are at least three political caucus meetings per year but the meetings could be more frequent and some years as many as ten political caucus meetings occur. Carton or Raich and all of the Committee members would attend these meetings.*fn6 Generally, no one else was in attendance nor did the Committee members ever meet without Carton or Raich. Brodsky understood that the presence of some Republicans other than Committee members was required to call the meeting a political caucus.
At the political caucus meetings, the group discussed campaign issues and campaign strategy. Sometimes, political consultants attended the political caucus meetings. During at least one of the political caucus meetings, a Republican Club member was there and the discussion was generally about bumper stickers, lawn signs and campaign platform issues. Brodsky testified:
I remember meeting with political consultants with regard to campaign strategy, positions the opposition party was taking, positions we wanted to take, platforms, budgetary items, things like that. We would also discuss political ramifications of things that were going on in the town, whether it would be a controversial application at the Planning Board, zoning board, events or other concerns or goings on in town from a political perspective in terms of you know, what effect that would have, what we thought about it, that kind of thing.
The Committee members would not discuss how to vote on any particular project. However "there may very well have been and probably were discussions with regard to an action that may be taken by the Township Committee [and] what the political ramification of that action would be." The discussion of issues coming before the Township Committee would be repeated at the Committee meeting. No minutes or records were created of these political caucus meetings and no formal agenda was prepared for them. Carton would call and lead the political caucus meetings.
Brodsky would occasionally take the Thursday packet to political caucus meetings, although no one asked him to bring it. Generally, the Committee members did not do so. There was no discussion of how people were going to vote on an ordinance or how it would be beneficial for the party as a group to vote one particular way. There were no straw votes or agreements on voting. However, the Mountain Hill project and the proposed ordinances affecting it would be discussed at the political caucus meetings. Whenever it seemed that Mountain Hill would be discussed at a political caucus meeting, Brodsky would absent himself and at regular Committee meetings he would not vote on any issue affecting Mountain Hill with the one exception, the open-space ordinance, which triggered invalidation of ...