November 20, 2013
MULLICA HILLS SUPERMARKETS LLC, Plaintiff-Appellant,
TOWNSHIP COMMITTEE OF THE TOWNSHIP OF HARRISON AND TOWNSHIP OF HARRISON, Defendants-Respondents. SHIRLEY M. FRYE, Plaintiff,
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
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. 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,  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.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 Ordinance 18-2012 were separate and distinct from the provisions readopting the amended redevelopment plan and the ratification provisions could therefore be severed to save the remainder of Ordinance 18-2012.
Moreover, the court found that the errors claimed by plaintiff, even if proven, were technical in nature and did not result in any prejudice to plaintiff. The court's reasoning follows:
Absent a showing of how the lack of oath affected the proceedings . . . this Court can't find that the lack of giving the oath in this case is sufficient to negate the board's action. And so, on the issue of oath, I'm rejecting the plaintiff's argument that the lack of giving the oath negates the actions taken by the planning board and ultimately by the Township Committee. I'm doing so on the basis that I can't find that it affected the legitimacy of the proceeding. Had there been some assertions put forth that demonstrated inadequacy of the testimony or some concerns about the testimony or people wanted to cross-examine the planner and were denied the opportunity such as to question the legitimacy of what he said[, ] I would have given it more significance and more weight. But, because all it is -- I don't mean to downplay the significance, but it's a technical no oath. Question is how did that affect the proceedings before the board. It's not been shown to me that it affected it one iota. And, as a result of that, I'm satisfied it's not a sufficient basis upon which to negate the action of the town in adopting the ordinance.
The next issue is the fact that the documents that we have in play were not signed by the planners, sealed, nor dated.
Again, however, there's no mandate that the plan itself be prepared by a planner. The integrity of the work had its chance and opportunity for examination through the hearing process. If there were concerns as to its quality, conformity to statute, or the manner by which it was prepared, those issues could have been examined and evaluated when it was before the public at the hearings before the planning board [or] the Township Committee.
Finally, I have to harken back to the issue with the oath. The real question is how did this particular concern affect the reliability of the proceeding. And, there's nothing in the record to suggest that the lack of a signature, seal, and a date in any way did affect the proceedings. Nothing referenced as to the plan itself from a substantive standpoint being in error, misleading, or misrepresentation such that it is demonstrated that the lack of those technical requirements, in some way, cause the proceedings to be impacted or affected.
So let me go on to point 3.
. . . .
As plaintiff urges[, ] ordinance 46-2011, because of its lack of notice or sufficient notice, makes it a legal nullity, therefore void in the primary sense. And, there's nothing which subsequently exists upon which ratification can be based. And so, I agree with plaintiff on that particular issue.
Notwithstanding the foregoing, case law cited by defense makes clear that the municipality can re-adopt -- in other words, adopt again. Ratification would reassert what had been done before. Re-adopt brings the thing to life anew.
Taking out the ratification language, 18-2012 can stand alone to adopt the redevelopment plan on its own and without any reliance, necessity, or support from a prior ordinance. On that basis, I agree with the defendant that ordinance 18-2012 can stand as an adoption on its own, but that the ratification language has to be severed.
To remedy the ratification issue, I do agree that the general severance rules of the general ordinances and general rule of law, as applied, would permit severing from the ordinance the challenge[d] language of the ratification. And so, I agree with the defense that the re-adoption, effectively, is a new adoption of the redevelopment plan. And, it can stand alone. It's not relying upon or dependent on the void ordinance 46-2011.
Okay. That gets me to the last issue which is the Township Committee was ignorant of the purpose and intent of the adoption, and therefore, their adoption of the plan was arbitrary, capricious, and unreasonable.
Further, all they're doing is re-adopting what was before them on prior occasions. Nothing to show from prior hearings that they did not know what was in the plan. Presumption under the law is that they understand and know what they're adopting and doing. There's nothing provided in the record before me that the Township Committee was consistently lacking knowledge throughout the adoption process of what they were doing and what it was that was in the legislation that they were adopting at that point in time.
The reality is that the Township Committee by adopting the text of the redevelopment plan in the body of its ordinance did set out its reasons. And, the document is replete with intent and purpose of and for its adoption. That's where I'll go to the ordinance itself and the appended plan.
This appeals follows, in which plaintiff raises the following issues:
I. THE COURT WAS REQUIRED TO SET ASIDE AND INVALIDATE ORDINANCE NO. 18-2012, PLANNING BOARD RESOLUTION NO. 15-2012 AND THE AMENDED RICHWOOD REDEVELOPMENT PLAN BECAUSE THEY WERE NOT BASED ON COMPETENT EVIDENTIARY SUPPORT IN THE RECORD.
A. Robert F. Melvin, PP, AICP, Was Not Sworn Prior To Testifying Before The Planning Board.
B. The Redevelopment Plan Amendment Was Not Signed And Sealed By A Professional Planner In Contravention Of The Regulations Established By The State Board Of Professional Planners
C The Governing Body Adopted Ordinance No 18-2012 Notwithstanding The Fact That It Did Not Understand The Intent And Purpose Of Ordinance No 18-2012
II THE COURT WAS REQUIRED TO SET ASIDE AND INVALIDATE ORDINANCE NO 46-2011 AND THE AMENDED RICHWOOD REDEVELOPMENT PLAN BECAUSE THE NOTICE PUBLISHED IN ADVANCE OF THE HEARING DATE WAS NOT LEGALLY EFFECTIVE AND AS A CONSEQUENCE IT COULD NOT LATER BE RATIFIED NOR COULD THE TRIAL COURT SEVER THE RATIFICATION LANGUAGE
A Ordinance No 46-2011 Is Void
B Ordinance No 18-2012['s] Purported "Ratification" [of] Ordinance No 46-2011 Was Not Effective Since Ordinance No 46-2011 Was A Legal Nullity
C The Trial Court Could Not Sever The Ratification Sections [O]f Ordinance No 18-201 [Where] The Ratification [Was] The Purpose Of The Ordinance
We are satisfied that none of these arguments is of sufficient merit to warrant discussion in this opinion Rule 2:11-3(e)(1)(E) and therefore affirm the orders of October 5 and 18 2012 substantially for the reasons set forth in Judge David Morgan's comprehensive oral opinion of October 5 2012