October 5, 2010
KEVIN CHAMBERS, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
THE TOWNSHIP OF NEPTUNE AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF NEPTUNE, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 run, until the redevelopment plan was adopted by Ordinance in 2008. We address the timeliness issue first.
In this case the Township pled the timeliness issue in its answer, the intervenor specifically asked that the issue be included in the pre-trial order, and the time limitation issue was briefed and argued by all parties without objection. Therefore, the issue was tried by consent and the pre-trial order should have been deemed amended pursuant to Rule 4:9-2. See Nester v. O'Donnell, 301 N.J. Super. 198, 208-09 (App. Div. 1997). We understand the trial judge's reasonable concern with avoiding trial by ambush and maintaining the court's control over the trial schedule, and thus his emphasis on including all issues to be tried in the pre-trial order. Anticipating that this case would result in an appeal, however, the judge wisely issued an order addressing both the timeliness issue and the merits of plaintiff's challenge to the Resolution.
We agree with the trial judge that Chambers was aware of the 2007 Resolution when it was adopted and was obligated to challenge the adoption of the Resolution within the forty-five day time limit set by Rule 4:69-6(b)(3). See Concerned Citizens of Princeton, Inc. v. Mayor of Princeton, 370 N.J. Super. 429, 446-47 (App. Div.), certif. denied, 184 N.J. 139 (2004). That relatively short time limit reflects the importance of certainty in the municipal planning and land use process. Id. at 446; Washington Twp. Zoning Bd. of Adjustment v. Washington Twp. Planning Bd., 217 N.J. Super. 215, 225 (App. Div.), certif. denied, 108 N.J. 218 (1987). Pertinent here, to obtain an extension or waiver of the time limit, the challenger must show that the case raises a substantial constitutional issue or other substantial issue affecting the public interest. See R. 4:69-6(c)(permitting enlargement of the time limit "where it is manifest that the interest of justice so requires"); Concerned Citizens, supra, 370 N.J. Super. at 447.
This case essentially presents a policy disagreement between Chambers and the Township over the most appropriate way to develop the approximately five-acre parcel.*fn3 Chambers does not own property in the redevelopment area. There is no claim of eminent domain abuse, lack of notice of a plan involving condemnation, or other constitutional issue relating to the designation. Consequently, the due process concerns addressed in Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (App. Div.), certif. denied, 196 N.J. 87 (2008), are not at issue here. See id. at 413. No other objectors joined in Chambers' lawsuit and, unlike Concerned Citizens, supra, there is no evidence that Chambers represents a large constituency. The record before us does not demonstrate the type of substantial public interest that would warrant waiving the forty-five day time limit. See Rocky Hill Citizens For Responsible Growth v. Planning Bd. of Rocky Hill, 406 N.J. Super. 384, 401 (App. Div. 2009).
We find no merit in Chambers' argument that as a matter of law the forty-five day time limit to challenge an "in need of redevelopment" designation does not start to run until a municipality adopts a redevelopment plan for the designated area. Chambers cites no case law in support of that proposition, and it is contrary to the language and purpose of the LHRL. See N.J.S.A. 40A:12A-6(7) (setting forty-five day time limit to challenge blight designation under certain circumstances); Harrison Redevelopment Agency, supra, 398 N.J. Super. at 399, 413-14; Concerned Citizens, supra, 370 N.J. Super. at 446-47. Adopting Chambers' interpretation as a general rule would undermine the ability of municipalities to engage in redevelopment planning. The challenge to the 2007 Resolution was properly dismissed as untimely, and we will not address the underlying merits of that challenge.*fn4
We turn next to the 2008 adoption of the redevelopment plan, as to which Chambers filed a timely challenge. We find his challenge without merit, substantially for the reasons stated by the trial judge. Chambers' appellate contentions do not warrant further discussion here, beyond the following comments. See R. 2:11-3(e)(1)(E).
The plan was adopted in conformity with the LHRL, which provides in pertinent part:
All provisions of the redevelopment plan shall be either substantially consistent with the municipal master plan or designed to effectuate the master plan; but the municipal governing body may adopt a redevelopment plan which is inconsistent with or not designed to effectuate the master plan by affirmative vote of a majority of its full authorized membership with the reasons for so acting set forth in the redevelopment plan. [N.J.S.A. 40A:12A-7(d).]
The Ordinance adopting the plan was approved by the requisite majority of the Township Committee. Moreover, contrary to Chambers' contention, the Redevelopment Plan and the Ordinance adopting it provide detailed reasons to depart from the Master Plan. The very limited quotations cited in Chambers' brief do not fairly reflect the extensive findings set forth in the Ordinance. Given the deferential standard to which we, and the trial judge, must adhere in reviewing the Township's decision, we find no basis to overturn the Ordinance. See Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1968).