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Coalition For Friendly Environmental Expansion, Inc v. Borough of Magnolia

August 22, 2011

COALITION FOR FRIENDLY ENVIRONMENTAL EXPANSION, INC., PLAINTIFF-APPELLANT,
v.
BOROUGH OF MAGNOLIA, MAGNOLIA PLANNING BOARD, D'ANASTASIO CORPORATION, AND FIBERGLASS ROAD ASSOCIATES, DEFENDANTS-RESPONDENTS.
BOROUGH OF BARRINGTON, PLAINTIFF,
v.
D'ANASTASIO CORPORATION AND BOROUGH OF MAGNOLIA, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket Nos. L-3629-08 and L-3574-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 9, 2011

Before Judges Cuff, Fisher and Simonelli.

Plaintiff Coalition for Friendly Environmental Expansion, Inc. (COFFEE) filed a complaint in lieu of prerogative writs in July 2008, seeking to set aside a resolution adopted by defendant Borough of Magnolia (the Borough) Council in July 2005 designating an 81 acre property in the Borough as an area in need of redevelopment and a November amendment to the redevelopment plan affecting 12 acres of the 81 acre parcel (Count One). The complaint also sought to set aside the 2005 release of a restrictive covenant barring construction of any building or the operation of any business within 200 feet of the southern boundary line of the property (Count Two), and challenged the March 2008 major subdivision and preliminary and final site plan approvals for a portion of the redevelopment site (Count Three). COFFEE argues that the trial court erred in dismissing Counts One and Two of the complaint as untimely.*fn1 We affirm.

This appeal concerns an 81 acre tract in the Borough that borders the Borough of Barrington (Barrington). In 1950, the property was purchased by Wilbur and Ralph Granary at a public sale. The property was acquired subject to a restrictive covenant barring the Granary brothers and their successors in title from "construct[ing] any building or conduct[ing] or operat[ing] any business within 200 feet of the South line of said tract of land." The property was purchased by Owens Corning in the 1950s and used in the production of fiberglass. Owens Corning ceased manufacturing fiberglass in 1988 and used the site thereafter as a warehouse and distribution center. It sold the property to AP-Keera Barrington, LLC (AP-Keera) on June 25, 1999. The new owner converted the property to a commercial complex known as the Barrington Business Park.

On April 26, 2005, Steven Bach of Bach Associates prepared for the Borough a map of a proposed Atlantic Avenue Redevelopment Zone, which included the 81 acre tract owned by AP-Keera. On May 4, 2005, the Borough adopted three resolutions to award contracts to Bach Associates, Louis S. Bezich of Public Solutions, Inc., and Michael P. Albano, Esq., for professional services in connection with redevelopment. Bezich was to serve as an economic development consultant, Bach as the redevelopment engineer, and Albano as the redevelopment attorney.

Shortly thereafter, Bach Associates submitted a document entitled "Determination of Need Investigation" (the Bach Report). This document set out the following background information:

The Governing Body and the Planning/Zoning Board have been working towards attracting new business to any vacant or underutilized facilities. They have been promoting redevelopment and beautification projects with existing land and business owners throughout the Borough of Magnolia, in particular, they have focused on the Barrington Business Park which is more commonly known as the [AP-Keera] site.

The AP-Keera site is described as Block 6, Lots 1 and 2, and Block 7, Lot 2, which is stated to have an aggregate total land area of approximately 81.46 acres. Bach Associates determined that the site met several criteria for the "determination of need for redevelopment" under N.J.S.A. 40A:12A-5.

On May 19, 2005, the Borough passed a resolution authorizing the Planning Board to investigate the need for redevelopment of the property and to hold a public hearing to determine whether the property is in need of redevelopment. The Planning Board minutes reflect that on May 25, 2005, it voted to advertise and schedule a special meeting to discuss redevelopment on June 15, 2005. On June 1, 2005, the Planning Board's attorney sent a letter to the Municipal Clerk, asking her to publish a Public Notice "in the Borough's newspaper for two (2) consecutive weeks prior to the redevelopment hearing date." The attorney also requested that the clerk mail by certified mail, return receipt requested, a "Notice To Affected Property Owners" to the owners of the lots in the proposed redevelopment area. The clerk confirmed that this notice was mailed to AP-Keera, who then owned the property.

The public meeting was rescheduled for June 29, 2005, and the Public Notice was published in the Courier-Post on June 12, 2005, and June 19, 2005. In the interim, however, the Borough authorized Bach Associates to prepare a redevelopment plan on June 16, 2005. The minutes reflect that at the hearing on June 29, 2005, Bach testified about the need for redevelopment. The hearing was then opened to the public, but no comments were received. The Planning Board voted to approve the proposed report, with the exception of page seven because "no testimony regarding the information on this page [was] given."

The Borough passed a resolution on July 6, 2005, "determin[ing] the delineated area known as Block: 6, Lots: 1 & 2 and Block: 7, Lot: 2 along West Atlantic Avenue is a redevelopment area based on the recommendation from the [Borough] Planning Board . . . ." It further adopted Bach Associates' redevelopment plan and forwarded it to the Planning Board for review and recommendations. On the same date, the Borough passed another resolution vacating the deed restriction contained in the deed from the Borough to Granary brothers.

Subsequently, on July 18, 2005, the Planning Board recommended to the Mayor and the Borough Council that the property "be found to be and designated as 'redevelopment areas' and 'areas in need of redevelopment' pursuant to N.J.S.A. 40A:12A-1 et seq." The Board then endorsed the redevelopment plan in a resolution dated July 18, 2005. After publication in the Courier-Post, the minutes reflect that the Borough Council adopted Ordinance 2005-13, entitled "An Ordinance Adopting a Redevelopment Plan Pursuant to ...


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