July 6, 2009
IN THE MATTER OF THE NEW JERSEY MEADOWLANDS COMMISSION RESOLUTION NO. 08-30
On appeal from the New Jersey Meadowlands Commission, Resolution No. 08-30.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 20, 2009
Before Judges Axelrad, Messano and Kestin.
Norfolk Southern Railway Company (Norfolk) appeals from Resolution No. 08-30 of the New Jersey Meadowlands Commission, which granted the application of Intermodal Properties, LLC (Intermodal) to rezone block 16, Lot 5.01 in Secaucus from Intermodal B zone to Transportation Center (TC) zone and to modify certain bulk requirements of the TC zone to permit the construction of a commuter parking and bus facility for the Frank R. Lautenberg Rail Station (rail station) at Secaucus Junction. We affirm.
In the first three of its six separately framed arguments, Norfolk contends that the Commission decision reflected in the resolution violated legal requirements in that it "was arbitrary, capricious or contrary to law[;]" that the zoning change "fail[ed] to further a comprehensive zoning plan calculated to achieve one or more of the purposes of zoning in the [Meadowlands D]istrict found in N.J.A.C. 19:4-1.2[;]" and that the Commission failed to give adequate consideration to "the 18 permitted uses under the [TC] zone as defined in N.J.A.C. 19:4-5.118." The remaining three arguments advanced by Norfolk address the Commission's discretionary determinations underlying the decision, contending that, in one respect or another, ill-advised choices were made from among the land use goals established in the New Jersey Administrative Code for the Meadowlands District.
We decline to consider two other arguments raised, for the first time, in Norfolk's reply brief. "It is improper to introduce new issues in a reply brief." In re Bell Atlantic-New Jersey, Inc., 342 N.J. Super. 439, 442 (App. Div. 2001). "Typically, such an argument will not be recognized." A.D. v. Morris County Bd. of Soc. Servs., 353 N.J. Super. 26, 30 (App. Div. 2002). See Pressler, Current N.J. Court Rules, comment on R. 2:6-5 (2009).
Intermodal owns the tract at issue, a 5.81-acre parcel that contains a now-vacant, approximately 76,500-square-foot building formerly used as a freight-forwarding facility, and is largely paved for truck parking and container storage. Norfolk owns or controls adjacent property.
Before Intermodal filed the instant matter on May 8, 2006, in the form of an application for a rulemaking seeking a zoning change, Norfolk, in 2004 and 2005, had made several offers to purchase the property. Intermodal rejected each offer. In October 2005, Norfolk filed a petition with the New Jersey Department of Transportation (DOT) "for approval to condemn [the] property pursuant to N.J.S.A. 48:3-17.6 and 48:12-35.1." On July 21, 2006, DOT referred that matter to the Office of Administrative Law as a contested case. The contested case continues to pend. On September 21, 2006, the Commission denied Norfolk's request to postpone action on the instant rezoning application until decision on the DOT condemnation matter.
Following a public hearing by the Commission's staff, and its receipt of written comments from those in opposition to the application for rezoning as well as from Intermodal in support, the Hackensack Meadowlands Municipal Committee (HMMC), on December 18, 2006, adopted a resolution opposing the proposed rezoning. For some time thereafter, the Commission took no further action on the rezoning application.
On November 28, 2007, the Commission adopted a resolution directing its staff to publish a notice of public hearing on the rezoning application. Shortly thereafter, the staff sought the views of the HMMC and other public bodies in the Meadowlands District on the matter.
A public hearing was held on January 22, 2008, with the active participation of both Intermodal and Norfolk. Thereafter, the Commission received written comments from other interested entities. On April 7, 2008, the HMMC adopted resolutions supporting the proposal. On April 23, the Commission's staff formally recommended "that the site be rezoned to the Transportation Center zone."
On the latter date, the Commission, in public session, heard objections to the proposal from Norfolk and others, and, in the light of the record, including the written comments previously submitted, adopted the resolution, No. 08-30, from which Norfolk appeals.
We reject Norfolk's arguments that the decision undergirding the resolution was arbitrary, capricious or contrary to law, that the rezoning fails to further an integrated and comprehensive zoning plan designed to achieve a purpose of zoning in the District specified in N.J.A.C. 19:4-1.2, and that the policy choices reflected in that decision were invalid. We view the decision made to reflect an application of the policy objectives of the new Master Plan for the District adopted in 2004, see 36 N.J.R. 1033(a) (February 17, 2004), and to embody choices from among the means and ends articulated in that Master Plan.
The types of policy choices that were made here are manifestly the province of the Commission, as the agency clothed with development authority in the Meadowlands District and the administration of land use regulations therein. Such choices are not to be made by courts in the context of judicial review. In the absence of clear showings of arbitrariness, caprice, unreason, or want of legal authority, i.e., lack of basis in statute or regulations, the discretionary choices of the Commission must be respected. See, e.g., Lewis v. Catastrophic Illness in Children Relief Fund Comm'n, 336 N.J. Super. 361, 369-70 (App. Div.), certif. denied, 168 N.J. 290 (2001). To the extent the Commission, in making the instant decision, chose to emphasize some permitted goals of the District's Master Plan and related regulatory requirements, and de-emphasize others, we may not substitute our judgment for the policy choices that resulted in rezoning to address the needs of a rail station that lacks adequate parking facilities. See generally Infinity Broadcasting Corp. v. Meadowlands Comm'n, 377 N.J. Super. 209, 225 (App. Div. 2005), aff'd in part, rev'd in part, 187 N.J. 212 (2006). See also Bow and Arrow Manor v. West Orange, 63 N.J. 335, 345 (1973); Bryant v. Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998).
To the extent Norfolk argues that the Commission's action may be seen to be an example of "spot zoning", the "final test [under that rubric] must be whether the [zoning] . . . advance[s] the community interest rather than some private or sectional advantage." Kozesnik v. Montgomery Twp., 24 N.J. 154, 172 (1957). It is clear that test has been met.
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