December 5, 2011
FRANK J. FULBROOK, PLAINTIFF-APPELLANT,
CITY OF CAMDEN, CAMDEN CITY PLANNING BOARD, CAMDEN REDEVELOPMENT AGENCY, CAMPBELL SOUP COMPANY, SAUNDRA ROSS JOHNSON, IN HER OFFICIAL CAPACITY, AND THEODORE Z. DAVIS, IN HIS OFFICIAL CAPACITY, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-331-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: October 13, 2011
Before Judges Axelrad, Sapp-Peterson and Ostrer.
Plaintiff Frank Fulbrook appeals from an order of the Law Division dismissing with prejudice count three of his complaint that alleged an incompatibility in the roles of two members of the Camden Redevelopment Agency that rendered invalid Camden City Council's passage of an ordinance amending the Gateway Redevelopment Plan. We affirm.
On January 19, 2010, plaintiff filed a prerogative writs complaint against defendants, City of Camden (the City), Camden City Planning Board (the Board), Camden Redevelopment Agency (the CRA), Saundra Ross Johnson (in her official capacities as the City's Director of Development and Planning and the CRA's Executive Director) (Johnson), Theodore Z. Davis (in his official capacities as the City's Chief Operating Officer and Chairman of the CRA) and Campbell Soup Company (Campbell Soup). The suit challenged the validity of Ordinance MC-4508, amending the Gateway Redevelopment Plan, that the Camden City Council (Council) adopted on November 10, 2009. Defendants filed responsive pleadings.
Plaintiff filed a second amended complaint on July 9, 2010, containing seven counts. Defendants filed responsive pleadings. On September 16, 2010, Judge Francis J. Orlando, Jr. granted defendants' cross-motion for partial summary judgment, dismissing the fifth and sixth counts of plaintiff's complaint that alleged the CRA lacked standing to apply for a certificate of appropriateness and the Camden City Historic Preservation Commission and the Board lacked jurisdiction to hear the application for the certificate of appropriateness.
Following the submission of trial briefs and oral argument, Judge Orlando issued an oral opinion on February 8, 20ll, dismissing the remaining counts of plaintiff's complaint with prejudice. The decision was memorialized in an order of the same date. Plaintiff appealed, challenging only the dismissal of the third count. According to plaintiff, Davis and Johnson "had a legally untenable conflict of offices, which tainted the entire ordinance adoption process."
We provide brief historic information and recitation of the facts only to the extent they are pertinent to the issues on appeal. This appeal involves an amendment to the Gateway Redevelopment Plan that enabled the historic Sears Building in Camden to be acquired by eminent domain and potentially demolished. The Gateway area is situated in Camden between Admiral Wilson Boulevard, Interstate 676, and the Cooper River. It includes the Sears Building, which served as a department store until l971, and then housed several other enterprises until the building became vacant in early 2007.
On April 27, 2006, Council adopted a Redevelopment Plan for the Gateway area for a proposed office park. Under the Plan and consistent with the statutory framework, the CRA was responsible for implementing the redevelopment. See N.J.S.A. 40A:12A-11.1. The Redevelopment Plan contained three property classifications: "to be acquired," "may be acquired," and "not to be acquired;" properties in the first two categories were subject to acquisition through eminent domain without amendment to the Redevelopment Plan. The Sears Building, located on Block 1463, Lot l was placed on the "not to be acquired" list.
On February 6, 2007, a multi-party project development agreement was signed in furtherance of the Redevelopment Plan. The agreement named Campbell Soup as the flagship tenant with a proposed 80,000 plus square foot employee services building, and provided for infrastructure improvements from the City, County of Camden, and State of New Jersey. The agreement expressly recognized the Sears Building as "an impediment to the development of the Area into a quality office park." Campbell Soup was subsequently named as the Master Redeveloper of the Gateway Office Park Area.
At Campbell Soup's request, in April 2007, the Board voted in favor of recommending to Council an amendment to the 2006 Redevelopment Plan that, among other things, placed the Sears Building on the "to be acquired" list. Following litigation, in January 2008, the trial court invalidated the Board's recommendation based on a conflict of interest by the Board's chairperson that tainted the outcome of the application.
By letter of June 17, 2009 to Davis and Johnson, Campbell Soup sent a "Property Designation Notice Form" identifying the Sears Building as a property to be acquired by the CRA and requesting that the CRA support and recommend to the Board and Council an amendment to the Redevelopment Plan to include the parcel on the "to be acquired" list. Two days later, Johnson, as Director of the City's Development and Planning Department, sent a request for Council action at its July 14, 2009 meeting, requesting an amending resolution, explaining:
The Master Redeveloper has provided a Designation Notice to the CRA (attached), in compliance with the terms of the Master Redevelopment Agreement, whereby [the Sears Building parcel] is identified as a property which needs to be acquired in order for the redevelopment of the Gateway Office Park Area to continue. Before the CRA can exercise the powers of eminent domain over the Property, the Plan must be amended to add the Property to the "to be acquired" list of properties set forth in the Plan.
On July 1, 2009, the CRA adopted Resolution 07-01-09J, authorizing it to accept the terms of Campbell Soup's designation notice and to recommend, support and endorse an amendment to the Gateway Redevelopment Plan, expressly finding the amendment was "in the best interests of the redevelopment of the Gateway Office Park Area." Chairperson Davis, a voting member of the CRA, voted in favor of the Resolution. Executive Director Johnson is a non-voting member of the CRA.
At its public meeting on July 14, 2009, Council passed a resolution requesting the Board consider an amendment to the Gateway Redevelopment Plan to add the Sears Building property to the "to be acquired" list of properties in the Plan, and for the staff of the City Planning Department and CRA to assist the Board in considering the amendment.
The Board held a special meeting on October 1, 2009 for consideration of the proposed amendment, which was presented by Campbell Soup. Johnson spoke during the public portion, identifying herself as "the executive director of the [CRA] and director of the [City] Department of Development and Planning." She stated that the CRA "has worked very closely over the past two years with Campbell's on their expansion project, which is designed to meet the goals stated in the redevelopment plan" and cited the benefits of the office park project -- "converting formerly vacant and under-utilized property into tax-generating uses[,]" "a highly visible anchor[,]" and "the largest --economic development project in the [C]ity[.]" Plaintiff spoke in opposition to the proposed amendment, opining that the acquisition and demolition of the Sears Building would not further what he believed to be an "urban vision" comprised of a "mix of land uses" under the Redevelopment Plan. By resolution of October 8, 2009, the Board approved and recommended to Council the report entitled "Planning Report on an Amendment to the Gateway Redevelopment Plan Dated July 23, 2009 prepared by David G. Roberts, P.P. of CMX" (Roberts Report), which recommended the proposed amendment to the Gateway Redevelopment Plan be approved by Council. The Resolution was duly published in the Courier Post on October 21, 2009.
On November 10, 2009, at a properly noticed and public session, having reviewed the Roberts Report and considered the Board's recommendations, Council passed, after a second reading and public comment, Ordinance MC-4508 approving an amendment to the Gateway Redevelopment Plan. Plaintiff attended the meeting and signed in as member of the public wishing to speak. The Ordinance was duly published in the Courier Post on December 8, 2009.
Plaintiff filed his complaint in January 2010. Plaintiff challenges only the dismissal of the third count of his amended complaint which alleged Davis' and Johnson's dual office-holding was incompatible and in conflict, tainting the entire ordinance adoption process. Plaintiff does not challenge the procedures or decisions of the Board or Council. He acknowledges that Davis and Johnson were not members of either the Board or Council and thus neither voted on the Board's Resolution recommending the amendment nor on Council's Ordinance. Moreover, Davis resigned from both positions of CRA Chairman and Chief Operating Officer (COO) of Camden on August 31, 2009, prior to the action by either the Board or Council.
Plaintiff focuses on Davis' action on July 1, 2009, in which, as Chairman of the CRA, he presided over the meeting and voted in favor of the resolution recommending that Council amend the 2006 Redevelopment Plan to add the Sears Building to the "to be acquired" list. According to plaintiff, because the CRA is subordinate to and under the supervision and control of the COO, Davis' dual role was incompatible, thus any action or vote Davis made as Chairman of the CRA is invalid and void. Accordingly, the July l, 2009 Resolution is allegedly void.
Plaintiff additionally alleges that Johnson, in her role as Executive Director of the CRA, had an obligation to follow the redevelopment agreement between the CRA and Campbell Soup, which required that the CRA consider any designation notice or amendment before it could refer the amendment to Council. According to plaintiff, Johnson received the designation notice from Campbell Soup in her capacity as Executive Director of the CRA. However, she forwarded it to Council two days later in her capacity as the City's Director of Development and Planning, without allowing the CRA to first consider it, thus circumventing the requirements of the agreement. According to plaintiff, Johnson's service in the two titles as an employee of the City and as Executive Director of the CRA created a conflict of offices, rendering null and void her actions taken in these conflicting roles.
Plaintiff thus sought the court to declare that the dual positions held by Davis and by Johnson were incompatible and in conflict, and that the actions each performed in either title with respect to the Sears Building were null and void. Accordingly, plaintiff argued that any action taken in reliance on their voided actions would also be null and void, which would include Council's adoption of Ordinance MC-4508.
Judge Orlando rejected plaintiff's arguments. He held, "there is nothing in the record to establish the designation notice, the manner in which the planned amendment request initially came before city council, or the offices held by  Davis and  Johnson, had any impact on the substance of the planning board or city council action." The judge elaborated:
In reviewing and analyzing the claimed irregularities, the [c]court notes the following. Ms. Johnson, as the department director, had authority under the Camden City Municipal Code to place the proposed amendment before city council. [See City of Camden Code (City Code) § 5-7A]. Mr. Fulbrook apparently contends that Ms. Johnson jumped the gun by referring the amendment to city council before the CRA board considered it. There are two responses. One, the city council is not restricted or bound by the actions of the CRA. Two, the CRA voted to support the amendment on July lst, 2009, approximately two full weeks before city council first considered the proposed amendment on July l4th.
Judge Orlando found to be without merit plaintiff's argument that Johnson and Davis held incompatible public offices and their actions tainted the ordinance process. Citing Schear v. City of Elizabeth, 4l N.J. 32l, 325 (1964), the court noted that the doctrine of incompatible public offices "is a development of the common law. Incompatibility exists [when] there is a conflict or inconsistency in the function[s] of [the two] offices." Judge Orlando paraphrased the Court in Schear, ibid., further noting that "legislative policy will trump the common law. If lawmakers deem that one person may hold two public offices, the judiciary cannot interfere."
As the court noted, Johnson was "legislatively permitted to hold both offices" as the City Code § 5-42B expressly states, "The Executive Director of the [CRA] may also serve as the Director of the Department [of Development and Planning] provided both appointments are made in the manner provided by law."
The court similarly held Davis did not hold incompatible public offices and any action he took did not taint the amendment process. Davis was appointed the COO pursuant to the Municipal Rehabilitation and Economic Recovery Act (MRA), N.J.S.A. 52:27BBB-1 to -79, extraordinary legislation designed to address, on an interim basis, the "fiscal distress" and related problems of "economically impoverished" municipalities, such as Camden, N.J.S.A. 52:27BBB-2. As Judge Orlando explained, the statute intended to have the COO "oversee and direct all critical operations of the city, particularly those related to economic recovery and revitalization." He enumerated the expansive powers given to Davis under the MRA, N.J.S.A. 52:27BBB-9 -- "the power to perform all acts and do all things consistent with law necessary for the proper conduct, maintenance, rehabilitation and supervision of the  municipality" and exercise "all  functions, powers and duties . . . assigned by any statute, regulation, ordinance, [resolution, charter] or contract for municipal operation[s], [municipal] organization and reorganization . . . ." He concluded that designating Davis as CRA Chairman was consistent with the MRA's goal, as it would enable him to participate, at an early stage, in decisions relating to the overarching goals of revitalization and rehabilitation of the City.
Moreover, Judge Orlando noted that, irrespective of these dual positions, Davis resigned from both positions prior to the Board's public hearing and adoption of the resolution recommending the amendment and Council's public hearing and adoption of the amending ordinance. Moreover, he found the CRA did "not play an essential role" in the adoption of the subject amendment, as the CRA "may or may not recommend a proposed amendment to the plan" but, regardless, Council was not bound by the CRA's recommendation. Pursuant to N.J.S.A. 40:69A-36 and City Code § 5-3, Council "exercise[s] its statutory legislative authority when it considers a proposed amendment" and "[t]he record demonstrates that that is what occurred when  [C]ouncil adopted MC-4508."
On appeal, plaintiff asserts the following arguments in his brief and articulated at oral argument: (1) Davis' and Johnson's dual office-holding is incompatible under common law; (2) the principle articulated in Schear, supra, 41 N.J. at 325, referenced by Judge Orlando, that this doctrine, within constitutional limitations, is largely subject to legislative policy, is applicable only to state statute, not municipal ordinances; and (3) City Code § 5-42, enacted in 2003, is self-serving and violates common law.
As to the first argument, plaintiff argues that Davis' position as COO required him to supervise or oversee CRA actions, which included the ability to veto the minutes of the CRA, N.J.S.A. 52:27BBB-2lc, rendering the positions incompatible. According to plaintiff, Johnson's position as the City's Director of Development and Planning interfered with her duties as Executive Director of the CRA because it enabled her to circumvent the procedure set forth in the project redevelopment agreement that required the CRA to review Campbell Soup's designation notices and make findings regarding any amendment to the Gateway Redevelopment Plan before Council action. This appearance of impropriety and conflict of offices tainted the entire process of amending the Gateway Redevelopment Plan.
Based on our review of the record and applicable law, we are not persuaded by any of plaintiff's arguments. We affirm substantially for the reasons articulated by Judge Orlando that we have cited at length in our opinion. We add the following comments.
In Reilly v. Ozzard, Chief Justice Weintraub stated the test for the common law incompatibility doctrine: "Incompatibility is usually understood to mean a conflict or inconsistency in the functions of an office. It is found where in the established governmental scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation to another." 33 N.J. 529, 543 (1960) (holding the common law did not prohibit a state senator from holding the position of municipal attorney). See also Schear, supra, 41 N.J. at 321 (holding a municipal attorney could be a member of the planning board).
We are satisfied Judge Orlando accurately analyzed the purpose and goals of the MRA and its relationship to the CRA and concluded Davis' dual positions were consistent and in furtherance of a common legislative plan, not incompatible. Moreover, neither Davis' position as Chairman of the CRA nor his vote as a member recommending that Council adopt the amendment impacted the validity of the Ordinance. N.J.S.A. 40A:12A-7e does not require CRA approval before Council may adopt an amendment to its redevelopment plan. Rather, the statute requires the proposed action be reviewed by the Board and a report containing its recommendation be transmitted to Council in advance of the adoption of such amendment, which was followed here. In addition, Davis resigned from both positions on August 31, 2009, well in advance of action by either the Board or Council.
Judge Orlando's analysis with respect to Johnson was also correct as a matter of law. Her dual office-holding was expressly authorized by municipal ordinance. City Code § 5-42B. To the extent plaintiff is asserting a challenge to the validity of that ordinance, he is woefully out of time as the ordinance establishing that provision was enacted on May 8, 2003. See R. 4:69-6(b)(3) (mandating a forty-five day deadline for filing an action in lieu of prerogative writs seeking review of municipal governing body action). Plaintiff also provides no support in law for his assertion that members of the municipal governing body are not included within the "lawmakers" acting "within constitutional limits" as "the architect[s] of the structure of government" who "ordain that one person may or may not hold two public offices" with which "the judiciary cannot interfere[,]"
Schear, supra, 4l N.J. at 325, Reilly, supra, 33 N.J. at 550, do not include members of the municipal governing body. To the contrary, with the exception of areas preempted by the State, municipal governing bodies have the same legislative powers as state legislators within the broad police power to enact ordinances regarding matters of local concern. See, e.g., Rumson Estates, Inc. v. Mayor and Council of Fair Haven, 177 N.J. 338, 350 (2003); Mannie's Cigarette Serv., Inc. v. Town of West New York, 259 N.J. Super. 343, 347-48 (App. Div. 1992) (holding that municipal ordinances are accorded a presumption of validity based on the general grant of police powers contained in the State Constitution and statutes).
In addition, Johnson's actions were not incompatible when she performed the ministerial act in her position as a City department head of forwarding Campbell Soup's designation notice and request for amendment to Council for placement on the July 14, 2009 meeting agenda. The CRA had full opportunity for review under the project development agreement and, in fact, did so prior to Council's consideration, adopting a resolution in favor of the amendment at its meeting on July l, 2009. As previously stated, Johnson was not a voting member of the CRA. Nor did the fact Johnson identified both of her positions and briefly spoke in favor of the amendment during the public portion of the October l, 2009 Board meeting evidence an improper incompatibility of offices tainting the subsequent adoption of the amendment by Council. Other than speculating at oral argument that such reference "enhanced Johnson's clout" to the Board, plaintiff has not asserted, let alone presented any evidence, that her testimony had an affect on the Board's recommendation or Council's subsequent adoption of the amending ordinance.
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