On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2401-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and Messano.
Plaintiffs Judith S. Feld, Robert M. Feld and the Four Felds, Inc., doing business as L. Epstein Hardware Co., appeal from an order dismissing their third-amended complaint in this action in lieu of prerogative writs. The complaint was dismissed, without prejudice, on motion filed by defendant City of Orange Township (City) and joined by defendants Housing and Neighborhood Services, Inc. (HANDS) and Harvard Development (Harvard)*fn1 (collectively the HANDS defendants). Although defendants moved to dismiss for failure to state a claim pursuant to Rule 4:6-2(e) and fees pursuant to Rule 4:6-4(b), the judge dismissed pursuant to Rule 4:6-4(b). He also awarded fees and costs in the amount of $1483.50 to the City's attorney and $1810.50 to the attorney for the HANDS defendants.
Because the judge did not issue an oral or written decision setting forth findings of fact and legal conclusions explaining why a sua sponte dismissal pursuant to Rule 4:6-4(b) was appropriate and because we cannot conclude that it was, we reverse with direction to vacate the order and continue the proceeding.*fn2 We reject the City's argument urging us to affirm on a different basis, which is that the complaint should have been dismissed pursuant to Rule 4:6-2 for violation of Rule 4:5-2. The HANDS defendants did not participate in this appeal. Plaintiffs filed their first complaint on March 17, 2008. This was defendants' third motion to dismiss.
In May 2008, the HANDS defendants filed a notice of motion to dismiss pursuant to Rules 4:6-2 and 4:6-4 and for fees and costs pursuant to Rule 4:6-4(b). In a supporting certification, counsel indicated that the HANDS defendants would also rely on Rules 4:5-8 and 1:4-1. On July 10, 2008, the judge found that plaintiffs' complaint: did not include numbered paragraphs and segregate claims founded upon separate transactions into separate counts to facilitate a clear presentation of the matter, as required by Rule 1:4-2; did not state the particulars of the wrongs supporting plaintiffs' claims of fraud and conspiracy as required by Rule 4:5-8; and was insufficient to permit the judge or defendants to discern the facts upon which plaintiffs were relying or the relief they sought. Accordingly, by order of July 15, 2008, the judge reserved decision on defendants' motion "until further application by [d]efendants" and granted plaintiffs leave to file an amended complaint by July 25, 2008.
Plaintiffs filed an amended complaint on July 23, 2008, which included twenty-six counts against the City, the HANDS defendants and individual defendants. Arguments on defendants' second motion to dismiss was heard on August 29, 2008. At that motion hearing, plaintiffs were represented by an attorney who agreed to reformulate the complaint to limit the action to counts one through nine - challenges to ordinances and resolutions issued by the City Council. Counts one through nine were identified as the only claims properly considered in a prerogative writ action and were dismissed without prejudice in order to give plaintiffs until September 18, 2008 to file another amended complaint. The remaining counts, ten through twenty-six, were dismissed without prejudice. In addition, the request for fees was denied without prejudice. The order memorializing those determinations was entered on September 16, 2008; it does not refer to the judge's dismissal of the request for fees and costs pursuant to Rule 4:6-4(b) without prejudice.
Plaintiffs filed a third-amended complaint dated September 16, 2008. It included eight counts challenging four ordinances issued by the City Council between February 19 and August 6, 2008. Plaintiffs, however, filed a notice withdrawing count five on October 13, 2008.
In the seven counts that remain, plaintiffs seek invalidation of the ordinances, equitable relief and, in some instances, referral to "the Attorney General and Local Finance Board for further investigation."
Ordinance No. 54-2007 is challenged in counts one through four. That ordinance authorizes the sale of property known as 540 Mitchell Street to Harvard, pursuant to N.J.S.A. 40A:12A-39, for $300,000 and "[s]uch other terms and conditions as may be established by Contract of Sale." It also requires the buyer to pay the taxes on the property and improvements and to submit a site plan application to the planning board. The ordinance identifies Harvard as the "designated redeveloper" of specified lots, including 540 Mitchell Street, which is within the Central Valley Redevelopment Area, and $300,000 as the appraised value of the property.
In count one, plaintiffs allege that Ordinance 54-2007 is void as "ultra vires, arbitrary, unreasonable, capricious, unconstitutional and [an] unlawful act." The focus of count one is that the ordinance was not adopted in conformity with the controlling statutes and exceeds the authority delegated to the City by the Legislature. The following claims can be gleaned. Harvard is a redeveloper not a redeveloping entity within the meaning of the "Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49," and, for that reason, the private sale of property to this redeveloper is governed by N.J.S.A. 40A:12-13(c), which plaintiffs assert requires compliance with the "Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49." They further assert that N.J.S.A. 40A:12A-8(g) permits conveyance of land without bidding under terms that are "reasonable." Plaintiffs assert that the City Council did not apply the correct legal standard and approved the sale without considering the reasonableness of the price and terms of the sale. They point to the fact that the property had an assessed value of $704,000, which was much higher than the appraised value at which the sale was approved. Finally, they assert that the ordinance misstated the appraised value, which was $330,000 not $300,000.
Count one includes other factual allegations that have no relevance to the adoption of Ordinance 54-2007, at least none that is apparent to us. To illustrate, we note assertions about: charges pending against the mayor; violations of the Open Public Meetings Act in connection with the election of an acting mayor; error in an ordinance adopted prior to Ordinance 54-2007 that was recognized and addressed in an ordinance issued after Ordinance 54-2007; and a challenge to the legality of an ordinance approving a contract for professional services unrelated to the sale of 540 Mitchell Street.
In count two, plaintiffs seek the same relief as in count one plus injunctive relief in the form of an order compelling the City to append "a written instrument to any and all future sale of real property ordinances." From the allegations stated in count two, one can readily glean that the claim is based upon alleged violations of designated statutes and sections of the City's administrative code allocating the functions of the legislative and executive branches of City government. The specific ...