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Mullica Hills Supermarkets LLC v. Township Committee of Township of Harrison

Superior Court of New Jersey, Appellate Division

November 20, 2013

MULLICA HILLS SUPERMARKETS LLC, Plaintiff-Appellant,
v.
TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HARRISON AND TOWNSHIP OF HARRISON, Defendants-Respondents. SHIRLEY M. FRYE, Plaintiff,
v.
MAYOR AND TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HARRISON, Defendants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 21, 2013

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket Nos. L-1965-11 and L-2061-11.

Ronald S. Gasiorowski argued the cause for appellant (Gasiorowski and Holobinko, attorneys; Mr. Gasiorowski, on the brief).

M. James Maley, Jr. argued the cause for respondents (Maley and Associates, PC, attorneys; Mr. Maley, Erin E. Simone and Emily K. Givens, on the brief).

Before Judges Parrillo, Kennedy and Guadagno.

PER CURIAM

Plaintiff Mullica Hills Supermarkets, LLC appeals from orders of the Law Division dated October 5 and 18, 2012, dismissing its complaint in lieu of prerogative writ against the Mayor and Township Committee of the Township of Harrison (Township) (collectively defendants) and upholding the validity of Ordinance 18-2012. We affirm.

By way of background, in 2008, the Township adopted a redevelopment plan, pursuant to N.J.S.A. 40A:12A-7, for an area it designated to be in need of redevelopment, entitled "Richwood Redevelopment Plan 2008." On September 6, 2011, the Township introduced Ordinance 46-2011 for the purpose of adopting an amended redevelopment plan. The amended plan was proposed after the Township determined that more specific plans were necessary in order to effectuate the redevelopment of certain blocks and lots within the redevelopment area. On September 11, 2011, a public notice of Ordinance 46-2011's introduction was published in the newspaper.

On October 6, 2011, at the regular meeting of the Planning Board (Board), the Board reviewed the proposed amendments to the redevelopment plan and found that the amendments were consistent with the Township's Master Plan. On October 17, 2011, Ordinance 46-2011 was adopted and notice of its adoption was published in the newspaper on October 21, 2011.

On November 17, 2011, plaintiff filed a complaint in lieu of prerogative writ, challenging the validity of Ordinance 46-2011, and the Amended Richwood Redevelopment Plan, on the grounds, among others, that the Township failed to include a statutorily mandated statement of its purpose in the notice of introduction.[1] During the pendency of this litigation, in an attempt to remedy the allegedly defective notice attending the adoption of Ordinance 46-2011, on February 21, 2012, the Township introduced Ordinance 18-2012, both ratifying the previous ordinance and readopting the amended redevelopment plan contained therein. Ordinance 18-2012 expressly indicated its purpose was to provide a more detailed notice of introduction due to the pending litigation.

Upon referral, the Board held a public hearing on March 1, 2012, to review the proposed amended redevelopment plan. At the hearing, the Township presented Robert Melvin, PP, AICP, who gave a general overview of the proposed plan and his opinion that it was consistent with the Master Plan. After Melvin's presentation, which was unsworn, the Board opened the hearing to the public, who posed no questions at that time. Ultimately, the Board again found that the amended redevelopment plan for the Richwood Town Center project was consistent with the Master Plan and approved a resolution recommending its adoption by the Township. Thereafter, on March 5, 2012, the Township conducted a public hearing on Ordinance 18-2012 and the amended Richwood redevelopment plan, [2] and adopted both on that date, later publishing notice of its adoption.

Consequently, on April 27, 2012, plaintiff filed a second amended complaint in its action in lieu of prerogative writ, which the Township answered. At the ensuing trial, plaintiff challenged the validity of Ordinance 18-2012 on four grounds: (1) Township planner was not sworn in at the public hearing; (2) the Township planner did not sign, seal or date the amended redevelopment plan incorporated in the body of the ordinance; (3) the Township's attempt to ratify Ordinance 46-2011 was improper because that ordinance was "void" and a legal nullity and therefore could not be "ratified"; and (4) the governing body that adopted Ordinance 18-2012 demonstrated a lack of understanding as to its content and purpose.

Following trial, the Law Division judge, rejecting plaintiff's claims, dismissed its complaint and upheld Ordinance 18-2012 as well as its adoption of the amended redevelopment plan, on the condition, however, that the Township strike the language in the ordinance "ratifying" Ordinance 46-2011.[3]Specifically, the court held that: (1) public hearings on the adoption of a redevelopment plan are not the type of hearing requiring sworn testimony pursuant to N.J.S.A. 40:55D-10; (2) Ordinance 18-2012 was not a document issued by a planner and therefore need not be signed by a planner; (3) the Township was well aware of the intent and purpose of Ordinance 18-2012 because its intent and purpose was contained in the body of the ordinance; and (4) while Ordinance 46-2011 was a nullity and not capable of ratification, the ratification provisions in ...


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