November 2, 2011
RUDY'S AIRPORT, LLC, PLAINTIFF-APPELLANT,
THE CITY OF VINELAND AND THE CITY OF VINELAND PLANNING BOARD, DEFENDANTS-RESPONDENTS, AND THE LANDIS SEWERAGE AUTHORITY,*FN1 DEFENDANT/INTERVENOR-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, L-686-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 2, 2011
Before Judges R. B. Coleman, Lihotz and Harris.
Plaintiff Rudy's Airport, LLC (plaintiff or Rudy's), which sought to invalidate the City of Vineland's 2008 Master Plan, Master Plan Reexamination Report and Ordinance No. 2009-72, appeals from two separate July 23, 2010 orders that (1) granted summary judgment in favor of defendants City of Vineland (Vineland or the City) and City of Vineland Planning Board (the Planning Board) and (2) denied plaintiff's cross-motion for summary judgment. We affirm the Law Division's determinations on the cross-motions for summary judgment. We remand two limited issues for re-argument and reconsideration.
Plaintiff commenced this action by filing a complaint in lieu of prerogative writs on July 18, 2008. The complaint recounts the history of the formation of an Ad Hoc Committee and that committee's activities that led to prior litigation and a determination by the Law Division that resolutions purporting to adopt the 2006 Master Plan, the 2006 Master Plan Reexamination Report and Ordinance No. 2007-26 were invalid under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21. The Law Division ruled the Ad Hoc Committee usurped the authority of the Planning Board and the meetings conducted by the Ad Hoc Committee had not been noticed or open to the public.
Promptly following those rulings, then-Mayor Perry Barse convened a teleconference with several professionals: Richard S. Cramer, a professional planner employed by T&M Associates (T&M); a planning board attorney; and the planning board solicitor. The purpose of the discussion was to arrange a March 24, 2008 meeting at which preliminary steps were to be taken to redraft the Master Plan.
On April 9, 2008, the Planning Board held its first public meeting after the invalidation of the 2006 Master Plan. At that meeting, the Planning Board discussed the need to adopt a new Master Plan. Thereafter, on notice to the public, the Planning Board held four additional public meetings.
At the April 28, 2008 public meeting, Cramer submitted a draft 2008 Master Plan and Master Plan Reexamination Report for review by the public and the Planning Board. The draft was further considered on April 29, May 14 and June 3, 2008.
On June 3, 2008, the Planning Board adopted the 2008 Master Plan and Master Plan Reexamination Report, and on June 24, 2008, the City Council adopted Ordinance No. 2008-39 to make the City's Land Use Ordinance (LUO) consistent with the 2008 Master Plan.
Rudy's filed this action, challenging the municipal actions as little more than a rubber stamp endorsement of the 2006 Master Plan and Reexamination Report, spearheaded by the mayor. However, following cross-motions for summary judgment, the motion court concluded that "I dismissed the '06 Plan and then a new '08 Plan was presented and the public was afforded an opportunity to participate when five public meetings occurred and [sic] in the new separate '08 Master Plan process." The court rejected plaintiff's assertion that the mayor had arrogated the Planning Board's powers, and it also rejected the argument the 2008 Master Plan was no more than an illegal byproduct of the 2006 Master Plan. We find no basis to disturb the court's rulings.
Our review of a ruling on motions for summary judgment is de novo, applying the same legal standard as the trial court. Wakefern Food Corp. v. Liberty Mut. Fire Ins. Co., 406 N.J. Super. 524, 538 (App. Div.), certif. denied, 200 N.J. 209 (2009). Thus, we consider, as a motion judge does, "'whether the evidence presents a sufficient disagreement to require submission to a jury [or trier of fact] or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Disputed issues "'of an insubstantial nature'" will not overcome a motion for summary judgment. Brill, supra, 142 N.J. at 530 (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)).
If there is no genuine issue of material fact, we "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Plaintiff argues, as it did before the Law Division, that the Planning Board improperly delegated its authority to Cramer, the professional planner it engaged, and that Cramer acted at the direction of the mayor. Plaintiff asserts the Planning Board played no meaningful role in developing or structuring the 2008 Master Plan.
At the motion hearing, plaintiff's counsel articulated plaintiff's position as follows:
We're not contesting that you can hire a planner. Of course, you can hire a planner to help the plan.
This case turns, in my view, on the fact that the Mayor instructed the planner and engaged the planner to prepare a Master Plan, not the Planning Board.. . . .
Why didn't [the Planning Board] sign the contract with the planner? Why didn't they meet with the planner? It's the Mayor's participation in the process that taints it.
Defendants counter that the Planning Board merely retained the professional planner to assist in the drafting of the new Master Plan. They concede that Cramer drafted the relevant documents, but they argue the Planning Board is entitled to engage experts and utilize their expertise. They add that the substance of the Master Plan was adopted with Planning Board and public input.
The court was not convinced that the Planning Board had surrendered its legislative prerogative, to either Cramer or the mayor. The court reasoned "[t]he Planning Board, when presented with the Plan, was free to proceed with it or not. The Mayor did not ultimately arrogate any powers of the Board. The Board itself, by its legislative action, utilized its powers." We agree.
As plaintiff emphasizes, N.J.S.A. 40:55D-20 provides that any power expressly authorized by the MLUL to be exercised by a Planning Board or Board of Adjustment, "shall not be exercised by any other body, except as otherwise provided in this act." N.J.S.A. 40:55D-28(a) provides that "[t]he planning board may prepare and, after public hearing, adopt or amend a master plan or component parts thereof, to guide the use of lands within the municipality in a manner which protects public health and safety and promotes the general welfare." In furtherance of that authorization, the planning board "may employ, or contract for, and fix the compensation of legal counsel, other than the municipal attorney, and experts, and other staff and services as it may deem necessary, not exceeding, exclusive of gifts or grants, the amount appropriated by the governing body for its use." N.J.S.A. 40:55D-24.
Plaintiff relies on Lionel's Appliance Center, Inc. v. Citta, 156 N.J. Super. 257 (Law Div. 1978), and urges that a planning board should only delegate technical matters to its professionals. In Lionel, the plaintiffs sought to set aside a site plan approval granted by the Dover Township Planning Board to the defendant/applicant to build two fast-food restaurants subject to approval of certain conditions by the County Engineer and the Dover Township Planning Board Engineer. Id. at 260-61. The plaintiffs argued there was an unlawful delegation of the board's approval power to the engineers, rendering the site plan void. Id. at 261-62. The court disagreed, finding the conditional approval was a valid exercise of the planning board's zoning and municipal police powers. Id. at 270. The court recognized "[t]he board must rely upon the expertise of professionals such as engineers and attorneys, which they have the power to employ under N.J.S.A. 40:55D-24. . . . The change was technical in nature and benefited plaintiffs and the general public . . . ." Ibid. Although that change was technical, the discretion to utilize an expert as the board deems necessary is broad.
The circumstances of Lionel are readily distinguishable because the conditional approval by the planning board was subject to further review by the professional engineers. Here, the action of the professionals in drafting the proposed Master Plan was completed before the review and approval by the planning board. Cramer and his firm were originally hired to assist in the drafting of the 2006 Master Plan and Reexamination Report. Days after those documents were invalidated, the mayor, with city planners and attorneys for the Planning Board, directed Cramer and his firm to redraft the Master Plan and Master Plan Report. Kathleen Hicks, the supervising planner for the City, described the pre-hearing meeting with T&M and the mayor as an evaluation of how the planning staff would proceed in compliance with the court's ruling. In his deposition, Cramer explained his firm had an ongoing contract with the City for professional planning services. When questioned about who exactly his client was, Cramer described the work was for the Planning Board, but he could not definitively say the contract for his services was specifically with the Planning Board.
A meeting with the mayor and other city staff does not, by itself, evidence a delegation of the Planning Board authority. Both Cramer and Hicks characterized the teleconference and meeting as preliminary, and the record does not disclose any vote or formal governmental action was taken that was not the subject of ensuing public hearings convened by the Planning Board. As stated by the motion court, the board was free to accept or reject the plan drafted by Cramer and others from T&M. At the April 28, 2008 public hearing, the Planning Board referred to the Master Plan as the "draft of the master plan." The Board formally adopted the 2008 Master Plan on June 3, 2008.
We recognize that plaintiff contends the 2008 Master Plan was essentially a reiteration or re-issue of the proposed 2006 plan. Accepting that as true, we perceive no reason to overturn the decision of the motion court. The motion court said, "I have to be candid with you; even if there were no changes, to [sic] my mind that does not make the '08 plan an illegal byproduct. I find no reason a perfectly good well thought out Plan should never be able to be used." We agree. The 2006 Master Plan was invalidated on procedural, not substantive, grounds. We also regard as reasonable and expected that the 2008 Master Plan might only require nominal updating from an earlier draft to reflect current conditions and the inclusion of public input. Substantial reliance upon the earlier Master Plan does not make the resulting Master Plan an illegal by-product. The resulting document is to be judged on its own merit.
Plaintiff contends the Planning Board never authorized Cramer to prepare the 2008 Master Plan and Master Plan Reexamination Report and that T&M was engaged by the City. Defendants acknowledge that T&M Associates, Cramer's employer, was under contract with the City to prepare the Master Plan, Reexamination Report and the Land Use Ordinance, but they point to Resolution No. 5782 and Resolution No. 5783, which recite that "the Board retained T&M Associates as the Board's Planning Consultant to assist in the preparation of the Master Plan Reexamination Report and Master Plan."
The motion court's rationale was appropriately realistic in considering this point. The court stated:
There's a real world and this Court assumes there is some working relationship between a Mayor, a Council and a Planning Board.
I assume that as a Judge. I assume that from my own personal history as a Municipal Solicitor in a couple of municipalities for many, many years. The fact that Mr. Cramer, at the suggestion of the Mayor, started a 2008 Master Plan is not surprising in light of the highly covered litigation concerning the '06 Plan.
And there, the Court simply found that they didn't go through the proper procedural steps. So for the Mayor to ask . . . the planner . . . to prepare a 2008 Master Plan, is not in the real world surprising to me at all.
The Planning Board, when presented with the Plan, was free to proceed with it or not. The Mayor did not ultimately arrogate any powers of the Board. The Board itself, by its legislative action, utilized its powers.. . . .
I gather the Planning Board doesn't have a separate budget.
Relying on the Law Division opinion in Planning Bd. of Leonia v. Borough Council of Leonia, 222 N.J. Super. 207 (Law Div. 1987), plaintiff implies the Planning Board and the City may not engage the same professional. Leonia does not stand for that proposition. In Leonia, the Borough Council and Planning Board shared the same engineer, whom the Council terminated, but the Board continued to retain. Id. at 209. Eventually, the Council sought to compel the Planning Board to use the Council's new engineer by refusing to pay the original engineer's vouchers. Ibid. The court stated:
Since neither council nor board has any inherent land-use power, each may only act by virtue of a statutory grant. Each has been delegated discrete but interrelated powers which, in turn, create a delicate balance between these two autonomous entities. Once the council has adopted planning and zoning ordinances the board's implementation of the law through subdivision and site plan review is no longer subject to council scrutiny. Independent judgment is essential to fulfillment of the board's separate land use functions. To achieve this, the Legislature granted the board the correlative power to appoint professional personnel with only one limitation: it may not use the services of the municipal attorney. This proscription reinforced and augmented the statutory intent that professional advice to this administrative tribunal be free from actual or apparent governing body control. Neither the limiting language as to attorneys nor the silence as to experts grants the council any power to actively or passively interfere with the board's selection of professionals. The lack of statutory constraints within N.J.S.A. 40:55D-24 on expert appointments must be construed as a delegation of unbridled discretionary power to the board. Therefore, the council resolutions purporting to direct who should act as board engineer, what work that person could or could not perform, and refusal to release funds in payment of authorized vouchers, were an impermissible attempt to arrogate the board's appointive power to itself and are void.
Barring conflict of interest, it is solely within the planning board's ambit of delegated authority to appoint any qualified licensed engineer it chooses. [Id. at 207, 211-12 (internal citations and footnote omitted).]
In the present matter, there is no evidence to support the supposition that the council or the mayor was attempting to interfere with or to control the will of the planning board by restricting the planning board's enlistment of its planning expert. On March 25, 2008, after the 2006 Master Plan had been invalidated, Cramer met with City Planning staff and a Planning Board attorney to discuss the preliminary steps in redoing the Master Plan. Neither Cramer nor Hicks described their respective tasks as ordered by the mayor. Instead, they both characterized preparation for a new Master Plan as simply a common-sense action taken after the 2006 Master Plan had been invalidated.
Plaintiff's argument that Cramer did not act on behalf of the Planning Board because he may not have been paid directly by the Planning Board, but rather by the City, is devoid of merit. As seen in Leonia, it is not a unique situation to have the governing body pay for the Planning Board's experts. Moreover, so long as a conflict of interest does not exist, a Planning Board is empowered to hire whomever it chooses for professional services, except the municipal attorney. Leonia, supra, 222 N.J. Super. at 209, 212. We agree with the motion judge's conclusion that the record does not raise a triable issue as to whether the Planning Board's authority was arrogated.
Citing Polillo v. Deane, 74 N.J. 562, 577 (1977), plaintiff argues that the 2008 Master Plan and Report are an illegal by-product of the Ad Hoc Committee because (1) the Planning Board only gave the "appearance of open government" when adopting the 2008 Master Plan and (2) the adoption of the Master Plan was not de novo as required by the Open Public Meetings Act (OPMA). In Polillo, the Supreme Court reviewed the adequacy of public notice for a meeting held by a charter commission formed to study the issue of selecting a form of government for Atlantic City. Id. at 566-69. The Court found that although adequate notice may have been given for the last two meetings of the charter commission, this notice was insufficient to remedy the initial public notice failures and did not qualify as a de novo action. Id. at 578. In addressing an appropriate remedy for a violation of the Open Public Meeting Act, the Court stated:
These remedial statutory sections contemplate maximum flexibility in rectifying governmental action which falls short of the standards of openness prescribed for the conduct of official business. . . . [I]t is entirely proper to consider the nature, quality and effect of the noncompliance of the particular offending governmental body in fashioning the corrective measures which must be taken to conform with the statute. [Id. at 579.]
The Court therefore directed the charter commission to reconsider the form of government it would recommend to voters. Ibid. The Court instructed:
In so doing, it may in its sound discretion utilize so much of the testimony and evidence which it acquired in the course of its original effort as it deems necessary and appropriate. However, any decision in that regard must be arrived at in a manner in strict conformity with the Open Public Meetings Law so that the public may be fully apprised by adequate notice and a publicized agenda exactly what prior meetings and what aspects of the existing Commission record are sought to be so utilized. [Id. at 580.]
In this case, the Ad Hoc Committee failed to give public notice of the meetings leading to the adoption of the 2006 Master Plan and Master Plan Reexamination Report, and the court appropriately invalidated the actions taken. The nature of that violation was determined by the motion court to be an inexcusable procedural flaw, which necessitated new deliberations after public notice was given. At the duly noticed public meetings, a draft Master Plan was submitted and discussed. The Planning Board held five public hearings on the new Master Plan and posted the proposed plan on the City's website. Plaintiff's assertion that the public only raised individual issues is irrelevant. What is relevant is that the public was afforded the opportunity to review and comment upon the proposed plan. There is no doubt that opportunity was afforded.
Finally, Rudy's points out the motion court, in rendering its decision, stated:
The other arguments, four, five and six, really I didn't get a chance to go into them in as much detail as I might have and they really weren't the centerpiece of your argument in any event.
I do think that there was no requirement to send any individual notices to the property owner. This was a periodic reevaluation. And I didn't have the time to more fully address those other arguments.
[F]or all those reasons, I am denying Rudy's Airport Summary Judgment Motion and granted the Summary Judgment Motion of the City of Vineland.
This, Rudy's contends, was in violation of Rule 1:7-4, which mandates that in a non-jury action, the court should support its decision with adequate findings of fact. Plaintiff argues the motion court did not fully address: (1) plaintiff's challenge to the 2008 Master Plan based on its nonconformance with the LUO's requirements, (2) plaintiff's challenge to the council's attempted amendment of the LUO to achieve conformance with the Municipal Land Use Law, and (3) plaintiff's challenge to the adequacy of the notice issued prior to the LUO's adoption.
"[A] trial judge in a non-jury case has the duty to set forth fully his findings and reasons, factual and legal, for reaching his decision." In re Estate of Risica, 179 N.J. Super. 452, 458 (App. Div. 1981) (quoting Kenwood Assocs. v. Englewood Bd. of Adj., 141 N.J. Super. 1, 4 (App. Div. 1976)). "In support of an order granting summary judgment, a judge is required to detail the findings of fact and conclusions of law in a written or oral opinion. A motion judge is obligated to set forth factual findings and correlate them to legal conclusions." Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 299-300 (App. Div. 2009) (internal citations and quotations omitted). See also R. 1:7-4(a); R. 4:46-2(c).
Based on our review of the record, the motion court both addressed and rejected the contention that individual notice to property owners was required for a "hearing on an amendment to . . . a zoning district . . . recommended in a periodic general reexamination of the master plan[.]" N.J.S.A. 40:55D-62.1. However, we do not find the remaining issues were addressed. Indeed, by the court's own acknowledgement, they were not addressed. Under the circumstances, their mootness cannot be assumed from the court's decision on earlier issues. See Grow Co., Inc. v. Chokshi, 403 N.J. Super. 443, 477 (App. Div. 2008).
In the absence of a clearly stated rationale for the disposition of the two remaining arguments or claims, we decline to exercise original jurisdiction, as suggested by defendants. Rather, we find it appropriate to reserve plaintiff's right to obtain a clarification of the basis for the court's ruling and, if necessary, to develop the record on these remaining claims. Accordingly, as to those issues only - plaintiff's challenge to the 2008 Master Plan based on its nonconformance with the LUO's requirements, and plaintiff's challenge to the council's attempted amendment of the LUO to achieve conformance with the Municipal Land Use Law - we remand to the Law Division to permit the parties to re-argue their cross-motions for summary judgment on these two issues only, and for a statement of reasons consistent with the Court Rules. We express no opinion as to the ultimate outcome of such motion practice or final disposition of the case. We do not retain jurisdiction.
Affirmed, subject to a restricted remand in accordance with this opinion.