On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9535-07.
The opinion of the court was delivered by: Sapp-peterson, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Sapp-Peterson and Espinosa.
In this appeal by plaintiff, Paul Tractenberg, and cross-appeal by defendant, Township of West Orange ("West Orange" or "Township"), we are presented with an issue of first impression, whether property appraisals performed by a private appraiser at the behest of the West Orange Council fall within the deliberative process exemption of the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13. Five months before the Supreme Court decided Education Law Center v. New Jersey Department of Education, 198 N.J. 274 (2009), the trial court determined that OPRA's deliberative process exemption applied to those portions of the appraisals that were not purely factual and ordered the release of a portion of the requested appraisals. The court also ruled that the appraisals were not protected from full disclosure under the attorney work product doctrine or on the basis of attorney-client privilege.
We hold that under Education Law Center, the appraisals are not subject to the deliberative process exemption because (1) they have not been used in the "decision making process" and (2) their disclosure will not "reveal deliberations that occurred during [the decision making process]." Id. at 280. We therefore reverse the October 28, 2008 and January 9, 2009 orders, to the extent those orders only granted the partial release of the appraisals, and order their complete release. We otherwise affirm.
The impetus for the underlying litigation surrounds a 185-acre parcel of land in West Orange purchased in 1986 by West Essex Highlands, Inc. (WEHI). Approximately sixty-five acres have been developed with condominiums and a detention basin. The remaining 120 acres known as the Highlands represent the largest privately-owned, undeveloped real estate in West Orange and have been described as "the unique, visually prominent, and environmentally significant ridgeline and associated east face of the Second Watchung Mountain." The entire area of the property falls within a designated residential zone.
Since 2000, WEHI and West Orange have been embroiled in litigation over the number of homes that are to be built within the Highlands and the procedures for removing trees. In 2004, the parties entered into a "Developer's Agreement" that required WEHI to donate twenty-five acres to West Orange, and in exchange, West Orange agreed to rezone the remaining ninety-five acres to permit WEHI to develop the acreage at double the previously-permitted density. Plaintiff is the President of We Care, a group of community activists seeking preservation of the Highlands. They sought to preserve the area as open space and communicated their opposition to any development to West Orange. In response to a communication from plaintiff, West Orange Mayor John F. McKeon wrote to plaintiff on December 2, 2005. The letter essentially provided an overview of West Orange's efforts to preserve the Highlands as open space and expressed the mayor's preference that there be the "least intrusive use and development" of the Highlands. Mayor McKeon's letter also advised that: the market value of this property is approximately 30 million dollars without considering its potential value to the owner, fully developed. The market value has been extrapolated from our last appraisal for the Township's western 52 acres protected, which at $250,000 per acre. [sic] The purchase of the [Highlands] property by [West Orange] is prohibitive as we would be unable to raise the funds to do so.
Three weeks later, Mayor McKeon authored a column in West Orange's local newspaper entitled "Point of View," reiterating that to acquire the Highlands "at a minimum... will cost the taxpayers $30 million" and "property acquisition is unrealistic and it is outright deceptive to contend otherwise."*fn1
Notwithstanding the opinions expressed by the mayor, the Township's Director, Department of Planning and Development, Susan Borg, hosted a meeting on February 26, 2006, at which plaintiff, township residents, environmental protection groups, including the Sierra Club and the West Orange Open Space Commission, and the township engineer were in attendance. According to Borg, the Township wanted to get as many groups together to see where we could find money from -- since we all assumed it was going to be a lot of money, and much, much more money th[a]n we bought properties [at] in the past, that we wanted to get a feeling for what kind of money each of the groups could -- could commit to this piece of property. And no one made a commitment, but everyone agreed that they would certainly go out and look for the... money.
The West Orange Council subsequently adopted Resolution #86-06, which provided in pertinent part:
WHEREAS, approximately 120.5 acres of vacant land currently exists at Block 179, Lot 32; and
WHEREAS, the Township desires to investigate such property for potential acquisition in accordance with the Green Acres Program administered by the State of New Jersey, Department of Environmental Protection; and
WHEREAS, the Green Acres Program requires two (2) appraisals of the subject property; and
WHEREAS, Tom Rodriguez Associates and Blau Appraisal Company have performed similar appraisals regarding other parcels on prior occasions; and
WHEREAS, the Township Council desires to investigate the potential acquisition of the subject property;
NOW, BE IT HEREBY RESOLVED, by the Township Council of the Township of West Orange that the Township Council authorizes the Mayor to retain Blau Appraisal Company and Tom Rodriguez Associates at a rate not to exceed $5,000 each to perform appraisals of the property located at Block 179, Lot 32 consisting of approximately 120.5 acres[.]
In October 2006, following the completion of the appraisals, plaintiff requested copies of the reports. Citing attorney-client privilege and attorney work product, the appraisals were not released. The debate about the Township's acquisition of the Highlands continued without resolution. In September 2007, plaintiff once again sought access to the appraisals. The Township attorney refused to release the appraisals, citing attorney work product and OPRA's deliberative process:
OPRA does not cover "inter-agency or intra-agency advisory, consultative or deliberative material." N.J.S.A. 47:1A-1.1.
Also known as the "deliberative process privilege[,]" this exclusion is meant specifically to shield communication "received by a decision maker from public [disclosure]." Gannett New Jersey Partners, LP v. County of Middlesex, 379 N.J. Super. 205, 219 (App. Div. 2005). As the appraisals were received (1) prior to the decision to exercise eminent domain and (2) contained opinions, recommendations and advi[c]e, the appraisal documents qualify under the deliberative process privilege.
On November 30, 2007, plaintiff filed a verified complaint seeking the entry of an order to show cause for the release of copies of the appraisals pursuant to OPRA and the common law right of access to public records. The court entered an order directing that the matter proceed as a summary proceeding. The Township filed its answer and, shortly thereafter, filed its brief in opposition to the order to show cause. The trial court conducted its summary proceeding over two days in October 2008.
In addition to documentary evidence, the court heard testimony from a number of witnesses, including plaintiff, Borg, Charles Blau, a licensed engineer whose company performed one of the appraisals, and John K. Sayers, the Township's Business Administrator and Police Director. At the conclusion of the hearing, the court orally entered its decision on the record.
The court found that neither the attorney-client privilege nor the attorney work product doctrine applied to prevent disclosure of the appraisals. However, the court was satisfied that OPRA's deliberative process exemption prevented disclosure of those portions of the appraisals that were not purely factual.
As for the common law right of access, the court concluded that the need for confidentiality to protect the Township's deliberative process outweighed plaintiff's need for access, and decided that the non-factual portions of the appraisals were protected. The court then ordered defendant to redact "[a]ny discussion of how they arrived at the market value as opposed to those things which are clearly factual...."
On October 24, 2008, the court ordered the release to plaintiff of "a portion of the requested appraisals," but "any indication of market value or the analysis that leads to the conclusion of market value" should be "blacked out." Plaintiff moved for reconsideration, and a hearing was held on December 18, 2008. At the hearing, plaintiff argued that because defendant was unwilling to comply with the order, the trial court should do the redacting. On January 9, 2009, the trial court ordered that plaintiff receive additional portions of the appraisals. On January 23, 2009, plaintiff appealed the trial court's denial of access to the entirety of the appraisals. On January 29, 2009, defendant cross-appealed portions of the October 24, 2008 and January 9, 2009 orders.
On appeal, plaintiff raises the following points for ...