August 1, 2013
BLOOMFIELD JOINT VENTURE, A Partnership, FARRAND STREET ASSOCIATES, A Partnership, BLOOMFIELD DAVAL CORP., BLOOMFIELD TRANSIT VILLAGE I, LLC, BLOOMFIELD TRANSIT VILLAGE II, LLC, BLOOMFIELD TRANSIT VILLAGE III, LLC, Plaintiffs-Appellants,
PLANNING BOARD OF THE TOWNSHIP OF BLOOMFIELD, BLOOMFIELD PARKING AUTHORITY, and BLOOMFIELD CENTER URBAN RENEWAL, LLC, Defendants-Respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6372-11.
Budin, Greenman & Greenman, attorneys for appellants (Arnold I. Budin, on the brief).
Law Office of Michael S. Rubin, LLC, attorneys for respondent Planning Board of the Township of Bloomfield (Michael S. Rubin, on the brief).
McManimon, Scotland & Baumann LLC, attorneys for respondent Bloomfield Parking Authority (William W. Northgrave and Kevin P. McManimon, on the brief).
Inglesino, Pearlman, Wyciskala & Taylor, LLC, attorneys for respondent Bloomfield Center Urban Renewal, LLC (John P.Inglesino, of counsel and on the brief; Grace Chun, on the brief).
Before Judges Messano and Lihotz.
By its memorializing resolution of June 14, 2011, defendant Planning Board of the Township of Bloomfield (the Board) granted preliminary and final site plan approval, major subdivision approval and exceptions from an approved redevelopment plan to defendants-applicants Bloomfield Center Urban Renewal, LLC, (BCUR) and Bloomfield Parking Authority (the Parking Authority). Plaintiffs, owners of properties located in and near the redevelopment area, filed a complaint in lieu of prerogative writs, contending the Board's action was arbitrary, capricious and unreasonable.
After considering oral argument, the Law Division judge issued an order dismissing plaintiffs' complaint, accompanied by a "written addendum" explaining her rationale. This appeal followed.
We have considered the arguments now raised in light of the record and applicable legal standards. We affirm.
The essential facts and procedural history are largely undisputed. In November 2009, the Bloomfield Township council authorized the Board to consider whether certain identified properties were "an area in need of redevelopment pursuant to the New Jersey Local Redevelopment and Housing Law, " N.J.S.A. 40A:12A-1 to -73 (the LRHL). The Board retained a professional planner to review, in particular, a triangle-shaped area designated as "Area 3." The planning report concluded that Area 3 met the criteria set forth in the LRHL.
After two public hearings, on September 23, 2010, the Board recommended that "Area 3 be designated as an area in need of redevelopment." On October 18, the mayor and council adopted the Board's recommendation and authorized the Board to "cause a redevelopment plan to be prepared for Area 3." The redevelopment plan was adopted on February 7, 2011.
BCUR was named the designated redeveloper, and on March 8, 2011, a redevelopment agreement was executed. In anticipation of the redevelopment project, on January 5, 2011, the Parking Authority and BCUR entered into a land swap agreement, whereby the Parking Authority conveyed certain properties it owned in Area 3 "in order to effectuate the construction of the Parking Garage and the Mixed Use Project." The Parking Authority also agreed to "acquire certain portions of the right-of-way in Lackawanna Place and Washington Avenue, " collectively referred to as the "Additional Parcels." These lands would subsequently be "consolidate[d] . . . into a single lot and . . . subdivide[d]" for the redevelopment project. Under the terms of the redeveloper agreement, the township agreed "it w[ould] take such actions as [we]re necessary under applicable law to vacate its right, title and interest in the Additional Parcels and to convey, at no or nominal cost, such right, title and interest to the Parking Authority." The Parking Authority would then convey the property to BCUR in accordance with the January 5 land swap agreement.
On March 7, 2011, the council adopted an ordinance vacating the rights of way. The ordinance also "amend[ed] the redevelopment plan" to read:
In light of the role of the Parking Authority in the construction of a parking garage to address the required parking needs in the redevelopment area, the number of parking spaces that will be required shall be based upon a shared parking analysis to be submitted by the Parking Authority to the . . . Board as part of any site plan application. Provided that the parking garage has at least as many parking spaces as is determined to be necessary in such shared parking analysis, the parking requirements of the proposed project shall be deemed satisfied.
On March 14, 2011, BCUR and the Parking Authority submitted applications to the Board for preliminary and final site plan approval and major subdivision approval "for the construction of a multi-use redevelopment project, including 224 rental residential units, 60, 000 square feet of retail space, and a multi-deck parking garage containing approximately 144, 419 square feet."
On April 19, the Board began hearing testimony on the applications. BCUR called a series of witnesses, including its parking consultant, Gerard Giosa. The Board continued hearings again on May 19. Joseph Staigar, a traffic engineer retained by the Board to conduct a traffic impact analysis, also testified. Staigar concluded that in general, the proposed traffic patterns would work well, but he recommended that there be "no tractor-trailers on Washington Street."
Plaintiffs called their traffic expert, Hal Simoff. Simoff criticized some of Giosa's opinions and expressed concerns over "the reduction in the width" of Lackawanna Place and Washington Street to accommodate "the buildings being expanded into the streets." Such reductions, according to Simoff, would prevent the accommodation of large trucks and would "remove about . . . 30 [to] 40 parking spaces in the neighborhood."
The Board orally granted site plan and subdivision approval on the condition that Staigar's recommendation to "limit truck traffic and tractor-trailers . . . on Washington Street" be incorporated into the plan. On June 14, the Board passed a memorializing resolution unanimously granting preliminary and final site plan and major subdivision approval for "the construction of three, mixed-use five story buildings and a parking deck."
On August 2, 2011, plaintiffs filed their complaint in lieu of prerogative writs. In particular, plaintiffs alleged the Board's action was arbitrary, capricious and unreasonable,
for reasons including but not limited to the Board's inclusion of Plaintiff Bloomfield Daval Corp.'s property [(the Daval property)] with the site plan without . . . consent or approval, failure of the Applicants to provide adequate parking, failure of the Applicants to provide an adequate traffic plan and failure of the Applicants to provide adequate on and off-site loading areas.
The judge comprehensively addressed plaintiffs' contentions in her written statement of reasons before dismissing their complaint.
Before turning to the particular issues raised on appeal, we set forth some guideposts that inform our review.
"'It is well established that when a reviewing court is considering an appeal from an action taken by a planning board, the standard employed is whether the grant or denial was arbitrary, capricious or unreasonable.'" Klug v. Bridgewater Twp. Planning Bd., 407 N.J.Super. 1, 12 (App. Div. 2009) (quoting Fallone Props., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J.Super. 552, 560 (App. Div. 2004)). "The arbitrary and capricious standard is analogous to the substantial evidence standard." Id . at 13 (citing Cell South v. Zoning Bd. of Adjustment, 172 N.J. 75, 89 (2002)). "The purpose of the reviewing court is to determine if the planning board properly exercised its discretion. The reviewing court should not substitute its judgment for that of the board." Ibid.
"The factual determinations of the planning board are presumed to be valid and the exercise of its discretionary authority based on such determinations will not be overturned unless arbitrary, capricious or unreasonable." Fallone Props., supra, 369 N.J.Super. at 560. Thus, "a planning board is not required to accept the testimony of any expert[, ]" and when "the testimony of different experts conflicts, it is within the Board's discretion to decide which expert's testimony it will accept." Klug, supra, 407 N.J.Super. at 13 (citations omitted).
While "a municipality's informal interpretation of an ordinance is entitled to deference, that deference is not limitless, " and our review of questions of law is conducted de novo. Dowel Assocs. v. Harmony Twp. Land Use Bd., 403 N.J.Super. 1, 29-30 (App. Div. 2008) (quoting Bubis v. Kassin, 184 N.J. 612, 627 (2005)). "The purpose of judicial review is for the court to determine whether or not the board acted within the statutory guidelines and properly exercised its discretion." Fallone Props., supra, 369 N.J.Super. at 561 (citation omitted). So, for example, "when a subdivision application complies with all the applicable zoning and subdivision ordinances of the municipality, the planning board must approve it." Klug, supra, 407 N.J.Super. at 13 (citation omitted).
Plaintiffs first argue that, in violation of N.J.S.A. 40A:12A-6(b), the Board approved a site plan that expanded the designated redevelopment area, which did not include the vacated portions of Lackawanna Place and Washington Street.
The LHRL grants a municipality broad powers to:
(1)Cause a preliminary investigation to be made . . . as to whether an area is in need of redevelopment;
(2)Determine . . . that an area is in need of redevelopment;
(3)Adopt a redevelopment plan . . . .
Once the redevelopment plan is adopted, the municipality "may use any of the powers listed in N.J.S.A. 40A:12A-8 to implement the plan." Town of Kearny v. Discount City of Old Bridge, Inc., 205 N.J. 386, 402 (2011).
"Upon the adoption of a redevelopment plan . . . the municipality or redevelopment entity . . . may proceed with the clearance, replanning, development and redevelopment of the area designated in that plan." N.J.S.A. 40A:12A-8 (emphasis added). Such actions may include "[c]lear[ing] any area owned or acquired and install, construct or reconstruct streets . . . essential to the preparation of sites for use in accordance with the redevelopment plan." N.J.S.A. 40A:12A-8(d) (emphasis added). Furthermore, "any public body" undertaking redevelopment is authorized to "plan or replan streets, roads, roadways, . . . sidewalks, " N.J.S.A 40A:12A-39(c), as well as "[p]lan or replan, zone or rezone any land within the jurisdiction of that public body, make exceptions from development regulations and ordinances, and change its map." N.J.S.A. 40A:12A-39(d).
In Bryant v. City of Atlantic City, 309 N.J.Super. 596, 617 (App. Div. 1998), which the trial judge cited in her statement of reasons, we recognized that "a [r]edeveloper's [a]greement . . . will understandably include items not in the [redevelopment] plan, since numerous contingencies will arise during the agreement negotiations which could not possibly have been considered when the plan was adopted." Here, although the map accompanying the redevelopment plan did not reflect inclusion of the rights of way, the plan itself provided that "[i]n addition to the particular lots cited, portions of the abutting public rights-of-way extending to the centerline of such streets are also included within the Redevelopment Area boundaries." We reject plaintiffs' argument.
Plaintiffs next argue that the Board acted unreasonably by approving a site plan that would narrow certain streets and alter roadways in violation of the existing land use ordinance. To the extent this is a challenge to the factual findings made by the Board and its assessment of the competing expert testimony, the argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E); see also Fallone Props., supra, 369 N.J.Super. at 561 (noting our review is limited to "determin[ing] whether the [B]oard could reasonably have reached its decision").
Plaintiffs concede, and the trial judge so determined, that adoption of a redevelopment plan may supersede a local land use ordinance. See N.J.S.A. 40A:12A-7(c) ("The redevelopment plan shall supersede applicable provisions of the development regulations of the municipality or constitute an overlay zoning district within the redevelopment area."); see also Milford Mill 128, LLC v. Borough of Milford, 400 N.J.Super. 96, 110 (App. Div. 2008) ("The adoption of a redevelopment plan is essentially a legislative function of a municipal government, akin to the adoption of a master plan or a zoning ordinance.").
However, plaintiffs contend N.J.S.A. 40A:12A-7(c) requires that "[w]hen the redevelopment plan supersedes any provision of the development regulations, the ordinance adopting the redevelopment plan shall contain an explicit amendment to the zoning district map included in the zoning ordinance."Plaintiffs contend the Board acted in an arbitrary and capricious fashion by approving the alterations to the roadways, since the redevelopment plan did not contain design standards for the roads, and the site plan, as adopted, did not comply with the design standards in the general land use ordinance.
In this regard, the redevelopment plan specifically indicated it "supersede[d] all provisions of the Land Development Ordinance . . ., except where specific provisions of the Land Development Ordinance are expressly indicated as being applicable." The redevelopment plan specifically set forth what was required for site plan and subdivision review, without any reference to the general land use ordinance. In short, the Board did not act arbitrarily and capriciously in approving design standards for the roadways that deviated from the general land use ordinance.
Plaintiffs next argue that the Board improperly "delegate[d] authority to the [Parking Authority] to determine the number of parking spaces . . . deem[ed] to be necessary in . . . [the] shared parking analysis." They again argue that because the redevelopment plan did not contain "specific standards being superseded, " the Board's delegation to the Parking Authority was improper.
As the trial judge noted, "the provision delegating the determination of parking needs to the Parking Authority appears in the Redevelopment Plan, not the Site Plan approval." She noted that, as expressed in its resolution, the Board clearly found the testimony of the applicants' parking consultant to be more credible. Thus, the Board considered all the testimony regarding the parking needs of the project and determined the issue itself. Lastly, for the reasons already stated, the failure of the redevelopment plan to adopt a standard expressly superseding that contained in the general land use ordinance did render the Board's decision arbitrary, capricious and unreasonable.
Finally, plaintiff Bloomfield Daval Corp. (Daval) contends the proposed realignment of an intersection resulted in a taking of its property. It further claims it was never notified that its property was to be included in the site plan.
Daval's property consists of Lot 40 in Block 220, which is directly across Lackawanna Place from the proposed buildings and includes a train station. The property was included in the redevelopment plan. The development application, however, only addressed properties in Block 228, as well as the vacated portions of the rights of way, and it made no particular mention of the Daval property.
The realignment of Lackawanna Place, upon which the Daval property fronts, and Washington Street anticipates that a portion of concrete sidewalk would be reconfigured. Daval notes in its brief that "the . . . Board was not made aware of this issue and it was not addressed in the approval resolution."
The trial judge found that the issue of any taking of Daval's property was "outside the scope of th[e] Site Plan application, " which was "limited to determining whether a development plan conform[ed] with the zoning ordinance and the applicable provisions of the site plan or subdivision ordinance." While this is true, the judge did not consider the full scope of Daval's argument, i.e., that property it owns was part of the application without consent and without any indication of site control by the applicants.
We note, however, that Daval's assertion of ownership to the corner is limited to a contention that it always maintained the area and was recently cited for an ordinance violation regarding maintenance. However, in their submissions to the trial court, defendants included a deed and survey of the area that clearly indicates the curbing at issue is not part of Daval's deeded property but, rather, lies in the public right of way. We accept that this fact was implicitly recognized by the Board, since its resolution made no reference to the development application including any property in Block 220.
Based upon the record before us, we cannot conclude that the site plan actually included land owned by Daval, and therefore, we find no basis to reverse the trial court's order.