May 7, 2012
JOSEPH COMPRELLI, M&J COMPRELLI REALTY, LLC, JOSEPH SUPOR III, J. SUPOR & SON TRUCKING & RIGGING CO., INC. AND S&B REALTY CO., PLAINTIFFS-APPELLANTS,
TOWN OF HARRISON, THE TOWN COUNCIL OF THE TOWN OF HARRISON, AND PAUL J. ZARBETSKI, CLERK OF THE TOWN OF HARRISON, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3169-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: September 21, 2011 -
Before Judges Cuff, Waugh and St. John.
Plaintiffs Joseph Comprelli, M&J Comprelli Realty, LLC, Joseph Supor III, J. Supor & Son Trucking & Rigging, Co., Inc. and S&B Realty Co. own property in Harrison proximate to the PATH station and the Red Bull Arena on which they operate surface commercial parking lots. In 1988, plaintiffs received permission from the Town of Harrison Planning Board to operate a commercial parking lot. In 1993, plaintiffs received their first license for 145 parking spots. By 2008, the number of spaces increased to 1050. When the Town of Harrison (the Town) issued a license in 2010 for 198 spaces, plaintiffs commenced an action in lieu of prerogative writs. Judge Hector R. Velazquez granted defendants' motion to dismiss. We affirm.
Plaintiffs operate a surface parking lot at 1000 Frank E. Rogers Boulevard in the Town. They have operated this parking lot since 1988.
The Town adopted ordinances in September 1992 imposing a 15% tax on all commuter parking fees and in 1993 requiring annual licensure of commercial parking lots. On March 2, 1993, the Town modified its procedures and adopted a set of ordinances that detailed the process for public parking applications, renewals, insurance requirements, and other items, and instituted the annual licensure of commercial parking lots.
In 1997, the Town initiated an investigation to determine if certain areas were in need of redevelopment. On September 4, 1997, the Town Council passed Resolution 19354 designating plaintiffs' property as part of an area in need of redevelopment. On November 16, 1998, the Town passed Ordinance No. 994, adopting the "Harrison Redevelopment Plan" (the Plan). Relevant to this case, the Plan changed the zoning of the area where the property is located to permit only "structured parking and movie production studios . . . ." The Plan acknowledged the amount of area dedicated to surface commercial parking and recommended that commercial parking needs should be provided by structured parking in accordance with delineated design standards.
On July 1, 2003, the Town adopted Ordinance No. 1077, amending the Plan. The amended Plan continued to prohibit surface parking as a principal permitted use, but provided:
Interim uses may be established subject to agreement between the developers and the Planning Board that such use will not have an adverse effect upon existing or contemplated development during the interim use period of up to (3) years in duration. Additional renewals of an interim use may be granted by the Planning Board. Upon demolition of existing structures, and compliance with all the developers' obligations under the Industrial Site Recovery Act (ISRA), the site shall be graded, planted, sodded, landscaped, and/or paved with a durable dust fee surface in the interim period to construction of new buildings.
Surface parking as an interim use is permitted. Surface parking shall be screened from public view by garden walls and/or decorative fending.
Where surface parking is developed as an interim use, the block perimeter, (sidewalks, street trees, fencing, lighting, etc.) shall be designed to the established standards.
Plaintiffs and others filed a complaint in lieu of prerogative writs in August 2001, Pathparc Assocs. v. Town of Harrison, challenging the 1998 Plan. They alleged the area in need of redevelopment designation violated the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73; the 1998 Plan was arbitrary, capricious and unreasonable; the designation of the redeveloper violated the LRHL, was arbitrary, capricious and unreasonable; and the Plan was part of an unreasonable scheme by defendants to acquire private property for private gain under the pretext of the LRHL. Plaintiffs also alleged the Town made no effort to work with property owners who wished to retain their property, and the designation denied plaintiffs their rights to procedural and substantive due process. The complaint was dismissed as time-barred, and this court affirmed. Pathparc Assocs. v. Town of Harrison, Nos. A- 3417-01 and A-3641-01 (App. Div. Apr. 23, 2003) (slip op. at 3, 16-17).
Meanwhile, from 1993-2009, plaintiffs continued to operate the lot and seek yearly license renewals as required by the March 2, 1993 ordinance as codified in the Harrison Municipal Code, Chapter 5.72 Public Parking Lots. The Town issued licenses to plaintiffs annually; similarly, the number of spaces plaintiffs were licensed to operate increased steadily. For example, plaintiffs received their first license in July 1993 for 145 spaces. From 1994-1999, plaintiffs received licenses to operate 145 spaces. In 2003, the Town issued plaintiffs a license to increase operation from 145 spaces to 198. From 2003-2007, plaintiffs obtained annual licenses to operate 198 spaces.
Between 2006 and 2008, plaintiffs improved the property. In 2007, plaintiffs demolished a structure to increase the number of parking spaces to 450 pursuant to construction permits issued by the Town. In April 2008, the Town issued a license for 450 spaces. In the meantime, plaintiffs undertook further construction to convert a pre-existing building to an open parking structure to increase the number of parking spaces to 1050 and the Town issued a license for 1050 spaces in May 2008.
The license to operate 1050 spaces was renewed in 2009. In 2010, plaintiffs submitted an application for a parking license for 1050 spaces but received a license for 198 parking spaces. The Town explained it reduced the number of spaces when it realized that plaintiffs did not have "the proper zoning for operation of the subject parking lots, as expanded." The Town further explained that under the amended Plan, "[i]nterim uses may be established subject to agreement between the developers and the Planning Board . . . ." The Town explained "[s]hould the applicant/owner wish to operate more than 198 spaces, an application to the Planning board for approval as an interim use is required." Plaintiffs never pursued interim approval from the planning board.
In a seven-count complaint in lieu of prerogative writs, plaintiffs alleged the reduction of allowed spaces from 1050 to 198 constituted inverse condemnation (Count One); violated the license ordinance (Count Two); and improperly revoked their license to operate a surface commercial parking lot (Count Three). Plaintiffs also alleged the designation of their property as an area in need of redevelopment and the finding of blight were invalid and unconstitutional (Counts Four and Five). In Count Six, plaintiffs alleged the redevelopment process, including adoption of the Plan and zoning changes consistent with the Plan, violated their due process rights because all were performed without proper notice to plaintiffs. Plaintiffs also alleged that defendants should be estopped from reducing the permitted spaces due to their reliance on permits issued by the Town to expand their surface parking operation (Count Seven).
Defendants filed a motion to dismiss. By order dated October 19, 2010, Judge Velazquez dismissed plaintiffs' complaint.
In his oral opinion, the judge held that plaintiffs' challenge to the amended Plan was time barred and their reliance on Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (App. Div. 2008) was misplaced. The judge also held that this court had affirmed the dismissal of a similar complaint filed by plaintiffs in August 2001. Addressing Count One, the inverse condemnation claim, the judge held that plaintiffs failed to demonstrate that they had been deprived of all economically viable use of the property and plaintiffs had failed to seek interim use approval for a 1050 space surface parking lot. Addressing Count Seven, the estoppel claim, the judge held that the factual underpinnings of plaintiffs' claim did not present the type of exceptional or extraordinary case to permit invocation of a rarely used remedy against a public entity. In addition, such a remedy was particularly inappropriate when plaintiffs proceeded to expand without planning board approval and have a remedy in the form of an application for interim use of a 1050 space surface parking lot. Judge Velazquez also held that an order requiring the Town to issue a license for 1050 spaces must abide submission of an interim use application, denial of the application, and a demonstration that a denial is arbitrary, capricious or unreasonable.
The judge also held that plaintiffs' remaining constitutional claims were without merit. Relying on Rivkin v. Dover Township Rent Leveling Board, 143 N.J. 352, cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996), the judge held a party cannot pursue a substantive due process claim when plans for use of property are denied or restricted in the course of conventional decision-making. Similarly, Rivkin precludes claims for denial of procedural due process in actions in lieu of prerogative writs. Id. at 358. Finally, an equal protection claim cannot lie when the aggrieved party has an available administrative remedy and has not pursued it. Id. at 382.
In a January 13, 2011 order, Judge Velazquez modified his October 19, 2010 order to provide that the inverse condemnation claim (Count One), the denial of a license for 1050 spaces claim (Count Two), and the improper revocation of a license for 1050 spaces claim (Count Three) were dismissed without prejudice. However, Counts Four through Seven remained dismissed with prejudice.
On appeal, plaintiffs argue that the judge improperly converted the motion to dismiss to one for summary judgment, plaintiffs can proceed with an inverse condemnation and other claims without pursuing an application for interim use, resort to the planning board will be futile, their challenges to the amended Plan are not time-barred and the judge should have enlarged the time, and plaintiffs have presented a compelling case to permit invocation of equitable estoppel.
We affirm substantially for the reasons expressed by Judge Velazquez in his October 19, 2010 oral opinion. We add the following comments.
Plaintiffs contend the motion judge erred by granting defendants' motion to dismiss because application of the standard governing such motions applied to the allegations in their complaint required denial of the motion. Here, however, both parties submitted materials beyond the pleadings and the judge treated the motion to dismiss as a motion for summary judgment. R. 4:6-2.
Having properly converted the motion to dismiss to one for summary judgment, we apply the same standard as the motion judge. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We apply the standard articulated in Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995):
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
To prevail on a summary judgment motion, defendants must show that plaintiffs' claim "was so deficient as to warrant dismissal of [their] action." Butkera v. Hudson River Sloop "Clearwater", Inc., 300 N.J. Super. 550, 557 (App. Div. 1997).
The judge properly dismissed plaintiffs' challenge to the amended Plan as time-barred and previously adjudicated by prior litigation. The record reveals that the Town adopted the Plan in 1998 and amended the Plan in 2003. Both Plans highlight the excessive amount of property devoted to surface commercial parking lots; the desire to place needed commercial parking in structures, presumably garages, that conform to redevelopment design standards; and the plan to eliminate to a great degree the existing surface commercial parking lots. Yet, plaintiffs did not challenge the 1998 Plan until 2001, and the 2003 amended Plan until 2010. By any measure, plaintiffs' current complaint is manifestly beyond the forty-five day limit challenge of municipal action. See R. 4:69-6(a). Our 2003 opinion in Pathparc Assocs., supra, affirmed dismissal of plaintiffs' challenge to the 1998 Plan as untimely; the same rationale applies to this current challenge. Nos. A-3417-01 and A-3641-01 at 16-17.
The Supreme Court recently addressed the issue of enlargement of time for prerogative writ actions. Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., 204 N.J. 569 (2011). The Court reiterated that the decision to enlarge the time to file a prerogative writs action is discretionary but the standard is whether it is "'manifest that the interest of justice so requires,'" so that "a court has discretion to enlarge a Rule 4:69-6(a) or (b) timeframe when it perceives a clear potential for injustice." Id. at 578 (quoting R. 4:69-6(c)).
The Hopewell Valley Court also clarified that the traditional three exceptions identified in Brunetti v. Borough of New Milford, 68 N.J. 576 (1975), is a non-exclusive list. 204 N.J. at 583-84. Hopewell Valley instructs us that the time for pursuing a prerogative writs action may be enlarged if the action involves constitutional questions, ex parte determinations, important public issues, or the reason for the delay is occasioned by reasonable reliance on information provided in response to an inquiry and a lack of prejudice to a another party, or other as yet unidentified reasons. Id. at 583-85. In addition, we recognized in DeRose that the "trial judges must retain the residual power to extend the time for a property owner to assert all claims of invalidity of a redevelopment designation, whether general or property-specific, where the interests of justice so require." 398 N.J. Super. at 414.
Here, however, there are no such compelling circumstances to justify an enlargement of time, particularly to permit assertion of a challenge to the 2003 amended Plan seven years after adoption. Unlike in DeRose, plaintiffs had notice of the 1998 Plan and the 2003 amended Plan. The goal of eliminating surface commercial parking and redirecting the needed parking to garages has been clearly stated since the inception of the redevelopment process. In addition, having its 2001 challenge to the 1998 Plan dismissed as time-barred, it is curious that plaintiffs should expect different treatment in this case.
Issuance of the license for a substantially reduced number of parking spaces also cannot be considered a reason to enlarge the time to challenge the 2003 amended Plan as it applies to plaintiffs. The 2003 amended Plan recognizes the need for parking before structured parking is constructed and perhaps after construction of a garage proximate to the PATH station and contemplates permitting surface commercial parking lots as interim uses. The Town has adopted an ordinance to implement this interim use in conformity with the amended Plan, but plaintiffs have not pursued this remedy. In short, plaintiffs have a remedy to the application of the amended Plan as applied to their property and have not sought to use it. They have also not demonstrated that the remedy is futile. We, therefore, affirm the dismissal of Counts Two and Three as time-barred.
The judge also properly dismissed the inverse condemnation claim because plaintiffs had not been deprived of all reasonable use and they have an administrative remedy they have not utilized to restore some or all of the reduced parking spaces.
"An inverse condemnation action is a review of the effect of a zoning regulation on a property owner's constitutional right not to have his property taken for public use without just compensation*fn1 . . . ." Pappas v. Bd. of Adjustment of Leonia, 254 N.J. Super. 52, 56 (App. Div.), certif. denied, 130 N.J. 9 (1992). A regulatory action amounts to a taking when "the regulation 'so restricts the use that the land cannot practically be utilized for any reasonable purpose or when the only permitted uses are those to which the property is not adapted or which are economically infeasible.'" Id. at 57 (quoting Morris County Land Improvement Co. v. Twp. of Parsippany-Troy Hills, 40 N.J. 539, 557 (1963)).
Regulations should be upheld by courts "unless [they] den[y] all practical use of property or substantially destroy the beneficial use of private property, or do not allow an adequate or just and reasonable return on investment." Gardner v. N.J. Pinelands Comm'n, 125 N.J. 193, 210-11 (1991) (internal citations and quotations omitted). To that end, diminution of land value alone will not constitute a taking, nor will impairment of the land's marketability. Id. at 210. Most critically, "restrictions on uses do not necessarily result in takings even though they reduce income or profits." Ibid. (citing S. Burlington Cnty. NAACP v. Twp. of Mt. Laurel, 92 N.J. 158, 273 n.34 (1983)). Thus, in summary "'takings analysis makes two fundamental demands of any zoning scheme: it must substantially advance legitimate state interests, and it cannot deny an owner all economically viable use of the land.'" Moroney v. Mayor and Council of Old Tappan, 268 N.J. Super. 458, 463 (App. Div. 1993) (quoting Gardner, supra, 125 N.J. at 205), certif. denied, 136 N.J. 295 (1994).
Regulatory takings are fact sensitive. Bernardsville Quarry, Inc. v. Borough of Bernardsville, 129 N.J. 221, 232 (1992). One who asserts that an ordinance is unconstitutional because it deprives him of the use of his property bears the burden of "'prov[ing] that the ordinance unduly burdens his beneficial use of the land.'" Pappas, supra, 254 N.J. Super. at 57 (quoting Spiegle v. Beach Haven, 46 N.J. 479, 491, cert. denied, 385 U.S. 831, 87 S. Ct. 63, 17 L. Ed. 2d 64 (1966)). "[A]n essential element of [this] proof 'is the existence of some present or potential beneficial use of which [the owner] has been deprived.'" Ibid. (quoting Spiegle, supra, 46 N.J. at 491-92).
The record before the motion judge simply does not support an inverse condemnation claim. The license issued in 2010 allows plaintiffs 198 spaces. Although this is a substantial reduction, the parking lot had operated with no more than 198 spaces until 2007. The dramatic expansion of the property from 198 spaces to 1050 spaces did not occur until 2008. Plaintiffs have not been deprived of all reasonable use of the property. Moreover, the record reflects that the Town has taken no action to enforce the reduction. Plaintiffs may apply to continue operation with 1050 spaces as an interim use or may seek to develop structured parking consistent with the amended Plan. In the land use context, whether all reasonable use of property has been taken cannot be determined until the property owner has exhausted all available remedies. Moroney, supra, 268 N.J. Super. at 465. Plaintiffs have not demonstrated that either remedy is unavailable to them.