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Mary Anne Dalessio and Provident Development, LLC v. Township of Upper Deerfield

December 16, 2011

MARY ANNE DALESSIO AND PROVIDENT DEVELOPMENT, LLC., PLAINTIFFS-APPELLANTS,
v.
TOWNSHIP OF UPPER DEERFIELD, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-21-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 28, 2011

Before Judges Sabatino, Ashrafi and Fasciale.

Plaintiffs Mary Anne Dalessio and Provident Development, LLC (Provident) appeal from a January 19, 2011 order dismissing the portion of their complaint in lieu of prerogative writs alleging (1) that the Township of Upper Deerfield (the Township) wrongly denied plaintiffs' requested adjournment of a public hearing and second reading of Ordinances 642 and 643 (the ordinances), and (2) that the ordinances contravene the designation of solar energy facilities as an "inherently beneficial use" under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163. We affirm.

Plaintiff Dalessio owns a tract of approximately one hundred acres located within the Township's redevelopment plan. Plaintiff Provident sold an equally large tract just prior to the Township adopting the ordinances, has developed and owned property in Upper Deerfield in the past, and intends to do so again in the future.*fn1

In 2009, the Township drafted two ordinances to amend its redevelopment plan and zoning code. On September 17, 2009, the Township referred the ordinances to its planning board, which found the ordinances not inconsistent with the Township's master plan. At a regular meeting on October 29, 2009, the Township held a first reading of the ordinances and scheduled a second reading and public hearing for November 19, 2009. On November 5, 2009, the Township mailed notice of the scheduled second reading to plaintiffs and other interested parties, and on November 7, 2009 published notice in local newspapers.

At the November 19, 2009 hearing, the Township passed the two ordinances. Ordinance 642 amended the Township's redevelopment plan, and Ordinance 643 added sections to the Township's zoning code entitled "Solar and Wind Energy Generating Facilities, and Communication Facilities"*fn2 and "Renewable Energy Facilities."*fn3 Together, the ordinances restrict where solar energy facilities can be built and impose construction requirements.

At the hearing, the Township also acknowledged that Dalessio's attorney had written a letter requesting "a modest extension" of the hearing in order "to fully consider and address the impact of the zone change." After considering the request, the Township voted to proceed without adjournment. The Township's attorney stated:

[W]hile the Township committee has the authority to carry the public hearing, I just want you to know that if you do so, it's my opinion that all of the notices, including all of the certified mailings would have to be done again.

Now, that's a considerable effort on the part of the Township and it would also have to be published again. So there's nothing I see in the correspondence which indicates any specific objection except they're asking for a "modest extension[."] I don't know that we could do it before the next Township meeting. And it would require a very significant expenditure of Township resources to go through the same notification process.

And I did confer with [the planning director] earlier tonight as to whether my interpretation of the notice provisions was consistent with his own that we would have to completely notice again with all the certified mailings and all of the publications and I believe he concurs with me that it would be[,] if not required, certainly advisable.

On January 4, 2010, after the ordinances passed, plaintiffs filed a complaint in lieu of prerogative writs, alleging that (1) procedural defects occurred because the Township did not grant an adjournment; (2) the ordinances are contrary to state and federal law and public policy, including the MLUL's recent inclusion of solar energy facilities as an "inherently beneficial use"; and (3) the amendments lack a rational substantive basis and proper enabling authority. Plaintiffs sought judgment that the ordinances*fn4 were "illegal, void and unenforceable." On February 2, 2010, the Township filed an answer.

Following completion of discovery, plaintiffs filed a "motion for judgment," including a memorandum of law, exhibits, and a certification of Richard Ragan, a member of Provident and offered as an expert in land use planning. The Township submitted opposition and a certification of Roy Spoltore, the Township's administrator and ...


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