On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-2210-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 20, 2010
Before Judges Lisa, Reisner and Sabatino.
Plaintiff Kevin Chambers appeals from a Law Division order dated September 16, 2009, dismissing his challenge to Neptune Township's designation of approximately five acres of land as being in need of redevelopment pursuant to the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73, and his challenge to the Township's subsequent adoption of a redevelopment plan. We agree with the trial judge that the challenge to the redevelopment designation was untimely and the challenge to the redevelopment plan was without merit. Accordingly, we affirm.*fn1
After Planning Board hearings, followed by the Board's positive recommendation, Neptune Township (Neptune or the Township) adopted Resolution 07-310 on June 11, 2007, designating the northern portion of the Township's Ocean Grove section as in need of redevelopment. Although Chambers participated as an objector at the Board hearings, he did not promptly challenge the 2007 Resolution after its adoption. On March 24, 2008, following additional public input on the manner in which the area should be developed, Neptune enacted Ordinance 08-08, adopting a redevelopment plan for the area. Chambers filed this action in lieu of prerogative writs on May 8, 2008, challenging both the 2007 Resolution and the 2008 Ordinance.
The Township, and an intervenor known as WAVE*fn2 , defended both enactments on the merits but also contended that Chambers' challenge to the 2007 Resolution was untimely.
In a written opinion dated August 31, 2009, the trial judge expressed concern that the timeliness issue had not been included in the pre-trial order. However, he addressed the substance of the issue and concluded that the challenge to the Resolution was untimely, because it was not filed within forty-five days after the adoption of the Resolution, as required by Rule 4:69-6(b)(3). See also N.J.S.A. 40A:12A-6(7).
The judge also addressed the merits of plaintiff's claims. He rejected Chambers' contention that the Township had premised the 2007 Resolution solely on a finding that the land was underutilized, under N.J.S.A. 40A:12A-5(e), a criterion our Supreme Court disapproved in Gallenthin Realty Dev., Inc. v. Borough of Plainsboro, 191 N.J. 344, 366-69 (2007). The judge concluded that the Township did not exclusively rely on N.J.S.A. 40A:12A-5(e) and had substantiated valid reasons for each portion of the property based on subsections other than 5(e). The judge also concluded that the 5.37-acre area was not too small to be designated as in need of redevelopment and that the designation was not spot zoning.
The judge further found that, during the hearing on the redevelopment designation, the Planning Board was not arbitrary in denying two objectors' application for an adjournment to present live testimony from an expert whose report they had submitted. However, he also concluded that Chambers had no standing to raise this issue, because he was not one of those objectors seeking to present the expert and he did not object to the Board's action at the time. Regarding the 2008 adoption of the redevelopment plan, the judge found that the Ordinance adequately explained any inconsistencies with the Township's Master Plan, as required by N.J.S.A. 40A:12A-7(d).
At oral argument of this appeal, Chambers' counsel confirmed that he makes no claim of eminent domain abuse, conceding that under the redevelopment plan the Township will not engage in condemnation of any property in the redevelopment area. However, Chambers contends that the redevelopment plan inappropriately permits the Ocean Grove Camp Meeting Association, which owns a substantial amount of the land in the redevelopment area, to develop its property with higher density housing than the local zoning ordinance would allow. In that context, he contends that the 2008 Ordinance did not adequately explain why the redevelopment plan was at variance with the Township's Master Plan.
In challenging the 2007 Resolution designating the area as in need of redevelopment, Chambers once again contends that the designation was based on alleged underutilization of the land, under N.J.S.A. 40A:12A-5(e), contrary to the holding in Gallenthin Realty, supra, 191 N.J. 366-69. Procedurally, he contends that the 2007 Resolution was not subject to challenge, and hence the forty-five day time limit did not start to ...