August 22, 2013
IN THE MATTER OF PRUDENTIAL FINANCIAL INC.'S URBAN TRANSIT HUB TAX CREDIT PROGRAM APPLICATION.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 21, 2013
On appeal from the New Jersey Economic Development Authority, Application No. 204145.
Paul P. Josephson argued the cause for appellants 2 Gateway Center Partners, LLC, TPE Gateway III, LLC and Lichter Gateway IV, LLC (Duane Morris and Hill Wallack, LLP, attorneys; Mr. Josephson, of counsel and on the brief; Eric I. Abraham, Christina L. Saveriano, and Lisa Chapland, on the brief).
Kevin J. Coakley argued the cause for respondent Prudential Financial, Inc. (Connell Foley, LLP, attorneys; Mr. Coakley, on the brief).
Kevin R. Jespersen, Assistant Attorney General, argued the cause for respondent New Jersey Economic Development Authority (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Mr. Jespersen, on the briefs).
Before Judges Fisher, Alvarez and St. John.
This is an appeal from the June 1, 2012 decision of the New Jersey Economic Development Authority (the Authority), to grant an urban transit hub tax credit (hub tax credit) in the amount of $210, 828, 357 to Prudential Financial, Inc. (Prudential) with respect to its construction of an office building in Newark. Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
The record discloses the following facts and procedural history leading to the administrative determination under review.
Prudential currently leases approximately 900, 000 square feet of office space in three of the four buildings that comprise the commercial complex known as the Gateway Center, located near Pennsylvania Station in downtown Newark. This space is leased from 2 Gateway Center Partners, LLC, TPE Gateway III, LLC, and Lichter Gateway IV, LLC (collectively Gateway). Prudential occupies 724, 969 square feet and sublets the balance pursuant to sub-leases. Prudential's leases expire in December 2014. Prudential and Gateway have not reached a renewal agreement.
In May 2011, Prudential hired Jones Lang LaSalle (JLL) to provide real estate brokerage consulting services in evaluating its Newark real estate. JLL's real estate team participated in renewal discussions with Gateway and, as Prudential's authorized agent, JLL submitted a request for proposal (RFP) to Gateway. JLL also performed work for the Authority, helping to develop and implement the net benefit model that the Authority uses for programs requiring a net benefit analysis. According to a JLL Managing Director, JLL entered into confidentiality agreements and maintained a wall between the real estate team working for Prudential and the team supporting the Authority, thus no information passed between the teams.
Instead of continuing to lease space in the Gateway Center, Prudential now intends to relocate its Gateway Center operations to a $444 million, 650, 000 square foot office tower it plans to construct on Broad Street in Newark, a site in an area designated by the City as in need of redevelopment. The Broad Street tower will accommodate all of Prudential's employees currently working in the Gateway Center, as well as 400 new employees who will be hired by Prudential. In New Jersey Prudential employs approximately 7435 people, including a total of 4740 at various locations in Newark, 2000 of which are in the Gateway Center.
On September 22, 2011, Prudential submitted an application to the Authority for a hub tax credit, pursuant to the Urban Transit Hub Tax Credit Act (the Act), N.J.S.A. 34:1B-207 to -209.4. Hub tax credits are granted by the Authority when a business makes a capital investment of at least $50 million in a facility located within a half-mile radius of an urban transit hub rail station. In order to qualify for the credit, the business must employ at least 250 full-time employees at the facility, and must demonstrate that the capital investment will yield a "net positive benefit" to both the State and the eligible municipality. N.J.S.A. 34:1B-209(a). Newark is an eligible municipality.
Prudential originally intended to construct a Leadership in Energy and Environmental Design (LEED) certified 600, 000 square foot office tower and parking deck at 3 Center Street, Newark. A critical component in the decision to build the office tower was the availability of the hub tax credit. Prudential's projected capital investment was $368, 887, 738. Upon approval of the hub tax credit, a business is allowed a tax credit of up to one hundred percent of its capital investment, applied over a ten-year period, against its corporate business tax and insurance premiums tax.
The Authority, using a model it had formally adopted in 2009, ran multiple net benefit analyses for Prudential using different figures for jobs, job categories, and property tax rates, to enable Prudential to evaluate alternative project parameters and assist its deliberations regarding construction of a new office building. Gateway claims that JLL assisted in preparing the model runs for the Authority that were provided to Prudential. However, Prudential retained a different consultant, Biggins Lacy Shapiro & Co., LLC, to assist it with its hub tax credit application, and later disclosed to the Authority the role JLL had in its negotiations with Gateway.
In November 2011, the Authority adopted a resolution approving Prudential's application for a hub tax credit for the Center Street project, and awarded Prudential up to $250, 785, 077, as calculated under the Authority's economic impact model. Gateway appealed this decision.
In March 2012, Prudential submitted an amended application to the Authority, changing the project to a 650, 000 square foot LEEDs certified office tower to be constructed on Broad Street and increasing the project cost from $368, 887, 738 to $444, 000, 000. On April 16, 2012, we stayed Gateway's initial appeal. On May 17, 2012, we granted the Authority's motion for a limited remand to render a decision on the modified application.
Despite the change in the projected capital investment, Prudential maintained that the number of jobs created at the Broad Street location would not change. Prudential also agreed to contribute two million dollars toward the cost of repairing and maintaining a public park near the site. The City notified the Authority that it anticipated that any new burden on City services would be de minimis. Prudential will also bear the full cost of any infrastructure improvements, including roadway, sewer, and water improvements. Finally, Prudential, which was under contract to buy a portion of the building site from the City for the appraised value, agreed to pay full ad valorem property taxes and would not seek any tax abatement from Newark.
In June 2012, the Authority adopted a resolution approving Prudential's modified application, but reduced the hub tax credit to $210, 828, 357. It is from that June 2012 resolution that Gateway appeals. On March 25, 2013, we granted Prudential's motion to accelerate the appeal.
On appeal, Gateway argues the Authority acted arbitrarily, capriciously and unreasonably in granting the hub tax credit to Prudential because in performing the net benefit analysis the Authority failed to consider the impact that Prudential's move would have on the value of commercial leases in Newark, erroneously calculated Prudential's estimated job growth, and failed to account for local costs, including infrastructure and public safety. Gateway also argues that the Authority's net benefit analysis contained several errors, which when corrected would reduce the value of the hub tax credit from approximately $210 million to $80.7 million. It is further contended by Gateway, for the first time in its reply brief, that the Authority failed to submit an environmental impact statement to the Department of Environmental Protection. However, we shall not reach this argument because it is improper to raise an issue for the first time in a reply brief. See, e.g., Goldsmith v. Camden Cnty. Surrogate's Office, 408 N.J.Super. 376, 387 (App. Div.), certif. denied, 200 N.J. 502 (2009). Finally, Gateway asserts that the Authority's analysis was "fatally tainted" because it relied on a consultant who was also serving Prudential as a real estate brokerage consultant. We disagree.
Certain principles guide our consideration of the issues raised on appeal. "[J]udicial review of an administrative agency action is limited." Hemsey v. Bd. of Trs., Police & Firemen's Ret. Sys., 198 N.J. 215, 223 (2009). In reviewing a final agency decision, we must defer to an agency's expertise and superior knowledge of its field. N.J. Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301 (2011). See Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001) (courts grant deference to agency expertise on technical matters); Gloucester Cnty. Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983) (strong presumption of reasonableness accompanies administrative agency's exercise of statutorily delegated responsibility). We "may not second-guess those judgments of an administrative agency which fall squarely within the agency's expertise." In re Stream Encroachment Permit, Permit No. 0200-04-0002.1 FHA, 402 N.J.Super. 587, 597 (App. Div. 2008).
We are bound to uphold the agency's decision absent "a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." Ibid. (quoting In re Herrmann, 192 N.J. 19, 27-28 (2007)). Judicial review is restricted to four inquiries:
(1) whether the agency's decision offends the State or Federal Constitution; (2) whether the agency's action violates express or implied legislative policies; (3) whether the record contains substantial evidence to support the findings on which the agency based its action; and (4) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994).]
However, we are not bound by an agency's interpretation of a statute or its resolution of a strictly legal issue. T.B., supra, 207 N.J. at 302. Thus, we review legal issues de novo, and no deference is required if an agency's statutory interpretation is contrary to the statute's language, or if the interpretation undermines the legislative intent. Ibid.; see also Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973).
To be eligible for a hub tax credit, the Act requires that a business shall: (1) make or acquire capital investments totaling not less than $50, 000, 000 in a qualified business facility located within a half-mile radius around rail stations designated as urban transit hubs; (2) employ not fewer than 250 full-time employees at the facility; and (3) demonstrate to the Authority that the State's financial support of the proposed capital investment in a qualified business facility will yield a net positive benefit to both the State and the eligible municipality. N.J.S.A. 34:1B-209(a)(1), (2) (emphasis added). Qualified capital investments include: "site preparation and construction, repair, renovation, improvement, equipping, or furnishing of a building, structure, facility or improvement to real property[.]" N.J.S.A. 34:1B-208.
Upon approval, a business is allowed a tax credit of up to one hundred percent of its capital investment. N.J.S.A. 34:1B-209(a)(1) and (c)(1). The profitability or financial need of the business is not a factor in determining eligibility for a hub tax credit. The business can apply its hub tax credit, allocated at ten percent per year, against its corporate income tax or insurance premiums tax liability, but it cannot use the credit to offset sales taxes, taxes on wages, or local taxes, such as real estate and payroll taxes. N.J.S.A. 34:1B-209(c)(3). Moreover, with regard to job retention in the State and at the qualified urban transit facility, the Act provides in part that if, in any tax period: (1) fewer than 200 full-time employees are employed in new full-time positions, the amount of the tax credit shall be reduced by twenty percent until the positions have been restored; (2) the business reduces the total number of its statewide full-time employees by more than twenty percent, the business shall forfeit its tax credit until the workforce is restored to pre-approval levels; and (3) the number of full-time employees drops below 250, or drops by more than twenty percent, the business shall forfeit its tax credit until restoration. N.J.S.A. 34:1B-209(d)(1), (2), (3).
The Authority, established in 1974 pursuant to N.J.S.A. 34:1B-1 to -21.22, is charged with administering the Act and adopting rules
as are necessary to implement this act, including but not limited to: examples of and the determination of capital investment; the enumeration of eligible municipalities; specific delineation of urban transit hubs; the determination of the limits, if any, on the expense or type of furnishings that may constitute capital improvements; the promulgation of procedures and forms necessary to apply for a credit, including the enumeration of the certification procedures and allocation of tax credits for different phases of a qualified business facility or mixed use project; and provisions for credit applicants to be charged an initial application fee, and ongoing service fees, to cover the administrative costs related to the credit.
In July 2009, the Authority retained JLL to create an economic impact model to enable it to calculate the "net positive benefit to both the State and the eligible municipality, " as required under N.J.S.A. 34:1B-209(a)(1). The Authority formally adopted the economic impact model on November 10, 2009, a detailed summary of which can be found on the Authority's website.
In 2011, the Legislature amended the Act to, among other things, clarify how the Authority should consider intra-State job transfers under the net benefit analysis, however, it did not otherwise change the way in which the Authority calculated net positive benefits. The Authority defined "net positive benefits" as the additional corporate and personal taxes that the construction project and the ongoing business operations at the site would generate. In calculating net benefits the model estimates both direct and indirect impacts on both a one-time and ongoing basis, utilizing multipliers from the "Regional Input-Output Modeling System" (RIMS) data base, a methodology developed by the United States Bureau of Economic Analysis to objectively assess the potential economic impact of various projects. See U.S. Dep't of Commerce, Bureau of Econ. Analysis, Regional Multipliers A User Handbook for the Regional Input-Output Modeling System (RIMS II) (3d ed. 1997). RIMS II is based on an accounting framework called an input-output table (I-O), that shows the goods and services produced by each industry and the use of these goods by a final user, as adjusted for regional supply conditions. Id . at 1. The RIMS multipliers, which are widely used in both the private and public sectors, vary considerably by industry, and are utilized to estimate the total impact of a project on local or regional output, earnings, or employment. Ibid.
By regulation proposed in 2009, 41 N.J.R. 4059(a) (November 2, 2009), and adopted as re-proposed in 2010, 42 N.J.R. 907(a) (May 17, 2010), the Authority established the parameters of its net positive benefit analysis, as follows:
In determining whether the company meets the net economic benefits test, as certified by the owner pursuant to N.J.A.C. 19:31-9.5(a)2iv and 3iv, the Authority's consideration shall include, but not be limited to, the local and State taxes paid directly by and generated indirectly by the business, property taxes or payment in lieu of taxes paid directly by and generated indirectly by the business, taxes paid directly or generated indirectly by new or retained employees, and peripheral economic growth caused by the business's relocation to the urban transit hub, provided that such determination shall be limited to the net economic benefits derived from the capital investment commenced after the submission of an application to the Authority.
On June 8, 2010, the Authority made the following changes to the hub tax credit model: (1) limited the maximum award to the capital investment in the project; (2) modified the treatment of existing jobs in the net benefit analysis; (3) provided a twenty-five percent bonus for jobs that are not at risk of leaving the State but are moving from suburban to urban locations; (4) provided a twenty-five percent bonus factor for logistical projects associated with freight rail and urban grocery stores; and (5) increased the allocation cap of credits to the residential portion of the hub program.
The Authority explained that in reviewing an application for a hub tax credit its staff inputs into the economic impact model the project location, total construction/project costs, property development type, percentage cost breakdown, and job categories. The model then calculates the likely impact on job creation, spillover economic activity or indirect economic activity, and earnings. Whenever actual values are known, the staff can override the model's estimates to use the known values rather than the model's theoretical results. It is common practice for the staff to choose the lower of the model-generated or applicant-provided figure.
The RIMS multipliers are used to provide a customized value for each location, project type, and job category based on geography and industry. The model uses total economic output, employment, and earnings multipliers from the database, as well as RIMS "direct effect" multipliers to estimate the portions of total impact attributable to direct and indirect activity. The model is updated when new RIMS data becomes available.
Once all of the preliminary data points, based on staff inputs, are calculated, the model then calculates both the direct and indirect ongoing or recurring effects from the project. Direct effects are measurable benefits to the State caused by capital flows of people and material directly associated with the project. Direct ongoing effects are the total ongoing taxes generated at or near the project site, and are calculated by adding the sum of all sales tax, corporate income tax, gross income tax, miscellaneous State tax revenue, and property tax. The gross income tax calculation uses only new jobs brought to the site.
Indirect effects are measurable benefits to the State caused by economic activity tangential to the project, that is, recurring tax revenue the State will receive from indirect economic activity at or near the project site. In calculating indirect ongoing taxes the model applies a RIMS multiplier to total annual corporate spending to get a measure of indirect annual corporate spending, and applies a RIMS multiplier to the annual payroll to get a measure of indirect earnings from the project.
The sum of the direct and indirect ongoing annual taxes equals the annual ongoing net benefit to the State. That sum is then grown at a three percent annual rate, an approximation of inflation, for 20 years, to arrive at the cumulative net benefit. The present value of the cumulative net benefit is computed utilizing a six percent discount rate.
Next, the model calculates direct and indirect one-time or non-recurring tax benefits to the State, that is, benefits associated with the project's capital investment, such as the sales tax generated from the sale of construction materials. In calculating one-time taxes, the model utilizes the same concept of employing RIMS multipliers and applying a three and one-half percent tax rate on sales activity and a five percent tax rate on wages. The total state benefits, in the form of tax revenue, is derived by adding the one-time tax benefits to the present value of the ongoing tax benefits.
The Authority then completes a separate analysis for the local net impact, calculating the costs to the municipality occasioned by the project. The model uses the estimated incremental portions of revenues, and then, if indicated by the municipality, subtracts the estimated incremental costs of the municipality for servicing the development, to form the basis of the local net benefits. The incremental costs are estimated by the municipality which is confirmed by the Authority from data gleaned from public filings, such as financial statements of the municipality.
The local costs are subtracted from the incremental tax benefits of a project to yield the local net benefits. The Authority contends that the model, which calculates the economic effect of a project over twenty years, does not account for changes in local real estate values because real estate values are cyclical and speculative, thus prediction of those values over a twenty year period would be unreliable.
In the final analysis, a project is deemed to have passed the net benefits test if the net positive economic benefit, the tax benefit value, of the project is at least one hundred and ten percent of the amount of the grant. However, in no case is the maximum award greater than the eligible capital investment.
Since enactment of the hub tax credit program in 2008, twenty-one projects, including the Prudential project, have been approved, for a total benefit of over one billion dollars.
Gateway argues that the approval of Prudential's amended application was arbitrary, capricious and unreasonable, and not supported by the record because the Authority failed to consider the impact that Prudential's move would have on the value of commercial leases in Newark. According to Gateway, Prudential's move will result in a vacancy of fifty percent of the space in the Gateway Center. As a result, Gateway contends that the increased availability of commercial space will significantly lower the per square foot charge for commercial rents realized by landlords, thereby ultimately causing a reduction in State, county, and municipal taxes.
We disagree with Gateway's assertion that the Authority was required to consider the potential reduction in rental charges in computing the hub tax credit. In determining whether the Prudential project meets statutory requirements, the Act does not mandate that the Authority consider the project's impact on local real estate values. It is not an arbitrary exercise of the Authority's statutorily delegated power to promulgate rules, which do not consider that factor. Such a factor could be deemed too speculative and subject to change. For example, Gateway could re-lease the former Prudential space at a premium to the current rent and thereby affirmatively affect the values which Gateway contends will be diminished. Moreover, any major office construction in Newark which is not pre-leased will have the same effects complained of by Gateway. Most importantly, the Authority, based on its expertise, has developed an economic model which focuses on increased tax revenues as opposed to hypothetical vacancy rates, real estate values, or other similar ephemeral prospective impacts.
Here, the new building and the creation of 400 additional positions will have a significant positive impact on the tax revenues to the State and to Newark. It was not unreasonable for the Authority to determine that tax revenue generated, and not the impact on the commercial real estate market, would be used in the computation of the net benefits test. See Matturri v. Bd. of Trs. of the Judicial Ret. Sys., 173 N.J. 368, 382 (2002) (courts defer to agency's interpretation provided it is not plainly unreasonable). This determination is entitled to deference because it is an outgrowth of the Authority's expertise and superior knowledge of its field. T.B., supra, 207 N.J. at 301.
Furthermore, after the Authority adopted the economic impact model in 2009, the Legislature twice amended the Act, but never disagreed with the Authority's model or its decision to exclude from consideration a project's effects on real estate values. The fact that the Legislature has not acted in response to the Authority's "interpretation or practice is 'granted great weight as evidence of its conformity with the legislative intent.'" Klumb v. Bd. of Educ. of Manalapan-Englishtown Reg'l High Sch. Dist., 199 N.J. 14, 24-25 (2009) (quoting Malone v. Fender, 80 N.J. 129, 137 (1979)).
The Authority fairly applied the factors developed in the economic impact model and reasonably determined that the project would result in increased tax revenue, thereby conferring a benefit to the State and Newark. As such, the decision of the Authority to grant Prudential a hub tax credit was a reasonable exercise of agency discretion.
Gateway also argues that 300 of the 400 new jobs to be created would be a result of Prudential's normal business growth, not the hub tax credit project, and thus they should not have been included in the calculation. Additionally, Gateway contends that Prudential had an obligation to demonstrate that the jobs to be created were at risk without the hub tax credit. We disagree.
First, the Act and its regulations do not distinguish between new jobs that result from business growth and those that are caused by the tax credit. N.J.S.A. 34:1B-209(d)(1); N.J.A.C. 19:31-9.2 and -9.5(a)(2)(xi). Notwithstanding the fact that some of the new jobs will result from anticipated business growth, all 400 new full-time positions that Prudential will create meet the statutory requirement and were properly included in the calculation. The Authority's regulations set forth a common sense definition of a new full-time position: "a position created by the business at the qualified business facility that did not previously exist in this State." N.J.A.C. 19:31-9.2. Moreover, if not for the hub tax credit, Prudential might opt to relocate many of those new positions to its offices in other facilities in New Jersey outside of Newark, or in neighboring states. Therefore, the Authority did not act unreasonably by including all 400 positions, even if some of them resulted from business growth.
As to Gateway's contention that the jobs had to be "at risk, " we find no support for that proposition in the relevant sections of the Act. Here, Prudential certified that the 2000 jobs currently performed at the Gateway Center were not at risk. To that end, Prudential was not required to submit a certification pursuant to N.J.A.C. 19:31-9.5(a)(3)(iv), or a full economic analysis pursuant to N.J.A.C. 19:31-9.5(a)(2)(x). Significantly, the Authority did not count any of the 2000 existing jobs to be transferred from the Gateway Center to the project in its calculation of net benefits, and used only the 400 new jobs to calculate gross income tax and taxes from wages from indirect activity. Further, the 400 new jobs are comprised of out-of-state transfers and company growth, and therefore the above statutory and regulatory provisions do not apply.
Gateway argues that the Authority failed to consider the local impact of the project with respect to infrastructure costs and the additional burdens on the Newark police and fire department. However, by letter dated April 30, 2012, a Deputy Mayor of the City asserted that based upon the "initial review of the proposed new office tower on Broad Street, the City anticipates that any new burden on City services would be de minimis. Upon receipt and review of formal site plans and design documents, the City will notify [the Authority] of any change in the projected impact." Moreover, in a May 23, 2012 email the Deputy Mayor stated that after additional investigation, the City had confirmed that construction of the new office tower "would not lead to any planned increase in police department or fire department budgets." This analysis was based on two large-scale development projects underway in the City's central business district, the Marriott Hotel and Panasonic office tower, which had resulted in only de minimis cost to the City. Based in part on the representations by authorized officials of the City, the Authority thus determined that the public safety burden on police and fire departments would not be significant. We further note that 2000 of the 2400 positions at the project presently are located at the Gateway Center. Again, the Authority did not act unreasonably.
Finally, Gateway takes issue with calculations pertaining to the average salary of the 400 new positions. Gateway argues that by using the correct classification the calculated value of the tax credit would be reduced by $34 million. The Authority provided the basis for its determination which was amply supported by the evidence. See Campbell, supra, 169 N.J. at 588 (courts grant deference to agency expertise on technical matters). Further, Gateway contends that "[u]sing reasonable assumptions about parking revenue and payroll tax receipts, and giving no credit for unemployment payments, the correct figure is $372, 000 per year, not $794, 000 per year. Factored into the EDA model, this reduces the tax credit by $7 million." We disagree. The Authority's calculation as to miscellaneous tax revenue was supported by the evidence.
With regard to Gateway's arguments concerning improper computations by the Authority with regard to real estate taxes, taxes from corporate spending (an indirect ongoing tax benefit), the sales taxes from indirect economic activity (a one-time tax benefit), and the assumption in the model for future inflation, we find these contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We reiterate that we grant deference to agency expertise on technical matters. See Campbell, supra, 169 N.J. at 588.
Finally, Gateway argues that the Authority's analysis was "fatally tainted" because it relied on a consultant, JLL, who had not disclosed, as it was required to do under its contract with the Authority, that it also served as a consultant for Prudential and as a consultant for Newark with regard to a redevelopment project which included the property on Broad Street. Gateway contends the hub tax credit award must be overturned because it was not based on substantial credible evidence, but rather JLL's biased advice. Gateway argues that JLL, as the developer of the model, had the unique ability to assist Prudential in applying for the highest possible award. Two facts belie this contention: (1) the model was created two years before Prudential's application; and (2) JLL performed no work for Prudential on its hub tax credit application Moreover JLL's limited work for the Authority on the Prudential application did not taint the net benefits analysis In fact as a result of JLL's analysis of the job categories the Authority used a lower average salary than asserted by Prudential We agree with the Authority that there is no indication in the record that the Authority's net benefit analysis was tainted by its relationship with JLL.