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Montclair State University v. County of Passaic

Supreme Court of New Jersey

August 6, 2018

MONTCLAIR STATE UNIVERSITY, Plaintiff-Respondent,
v.
COUNTY OF PASSAIC and CITY OF CLIFTON, Defendants-Appellants.

          Argued April 10, 2018

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 451 N.J.Super. 523 (App. Div. 2017).

          Marvin J. Brauth argued the cause for appellant City of Clifton (Wilentz, Goldman & Spitzer, attorneys; Marvin J. Brauth, of counsel and on the briefs).

          Michael H. Glovin, Deputy County Counsel, argued the cause for appellant County of Passaic (William J. Pascrell, III, Passaic County Counsel, attorney; Michael H. Glovin, of counsel and on the brief).

          Antonio J. Casas argued the cause for respondent (Windels Marx Lane & Mittendorf, attorneys; Antonio J. Casas and Samuel G. Destito, of counsel and on the briefs).

          Peter G. Verniero argued the cause for amicus curiae Rutgers, The State University of New Jersey (Sills Cummis & Gross, attorneys; Peter G. Verniero and James M. Hirschhorn, of counsel and on the brief, and Michael S. Carucci, on the brief).

          Christopher A. Edwards, Assistant Attorney General, submitted a brief on behalf of amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Melissa Dutton Schaffer, Assistant Attorney General, of counsel, and Christopher A. Edwards, on the brief).

          LaVECCHIA, J., writing for the Court.

         This appeal raises substantive and procedural issues about the immunity from local zoning laws and regulation that Rutgers v. Piluso, 60 N.J. 142 (1972), recognized for a state university with respect to improvements on state-owned land. The Court reaffirms principles expressed in the Rutgers decision and addresses the application of those principles when the planned state agency activity is asserted to have a direct public safety impact affecting off-site land for which local governmental authorities have a responsibility to act in the public interest and could be potentially liable should a tort claim arise.

         Since 2004, plaintiff Montclair State University (MSU) has attempted to create a third egress from its campus onto a county road. MSU consulted with both the County of Passaic (County) and the City of Clifton (City), ultimately satisfying most of their concerns about the project. When the County failed to respond to MSU's permit applications, MSU filed this action, seeking a judgment declaring that no permit or local approval was required, or alternatively, an order compelling the County to issue all necessary permits.

         The trial court denied the relief sought. Relying on Rutgers, the court reasoned that the parties must exchange updated traffic studies, consult further, and appear before the local planning boards. Although MSU agreed to make more changes to its plan, the impasse remained. The principal point of contention was the design speed of the campus roadway, which the County and City claimed was unsafe. MSU declined to make the change proposed by the County and the City, relying on its experts' conclusion that the road's planned design speed and posted speed would be safe, and that the alternative design was unsafe. The matter returned to the trial court, which dismissed MSU's complaint because MSU had not returned to the local planning boards to develop the record further.

         MSU appealed. The Appellate Division panel concluded that the trial court "mistakenly exercised [its] discretion by . . . requiring the matter be heard by the municipal and county planning boards for development of a record." 451 N.J.Super. 523, 530 (App. Div. 2017). Rather, the panel held that MSU enjoys a limited immunity but that Rutgers controls here and prohibits MSU from exercising its power in an "unreasonable fashion." Id. at 530-31. Accordingly, the panel reversed and remanded the matter, instructing that the trial court determine whether MSU had adequately and reasonably consulted with the County and City. Id. at 533. The Court granted the City's petition for certification. 231 N.J. 330 (2017).

         HELD: First, under the qualified immunity addressed in Rutgers a state agency must be able to demonstrate both that the planned action is reasonable and that the agency reasonably consulted with local authorities and took into consideration legitimate local concerns. Second, although an otherwise immune state entity may not be compelled to submit to review before a planning board, when its improvement directly affects off-site property and implicates a safety concern raised by a local governmental entity responsible to protect public safety with respect to that off-site property, special judicial review and action is required. In circumstances such as are presented here, a judicial finding that the cited public safety concern has been reasonably addressed shall be a necessary additional requirement before a court may either compel local regulatory action or grant declaratory relief that the planned action is exempt from land use regulation. The Court does not specify what record warrants such a finding in every case. Rather, the trial court should determine, on a case-by-case basis, whether it could make such a finding via a summary proceeding or whether a more fulsome proceeding is necessary.

         1. Prior to Rutgers, the Court considered two cases that involved local assertions of municipal land use control of lands that had become subject to state authorities empowered to construct highway road projects. In City of Newark v. Turnpike Authority, the Court rejected the notion that the local governmental authority superseded the power granted to the State agency by the Legislature. 7 N.J. 377, 384 (1951). In Town of Bloomfield v. Highway Authority, a municipality sought a declaration that the State Highway Authority was subject to local land use controls. 18 N.J. 237, 238 (1955). The Court took into account that there were "widespread objections by local communities and residents . . . to the encroachments of new highways," but found that they "must, in the public interest, give way to the greater good for the greater number." Id. at 248. (pp. 16-20)

         2. In Rutgers, the Court was asked to consider the extent to which a municipality's zoning ordinances could place limits on a housing expansion by a state university on its own lands, where the municipality claimed that the project would impact municipal resources and services. The Court rejected a "presumption of immunity" based exclusively on the superiority one governmental entity may have over another in hierarchy and settled on a case-by-case test that depends on "legislative intent . . . with respect to the particular agency or function involved," to be divined from a number of factors. Id. at 152-53. In the application of its test, the Court determined that Rutgers, as a state university and instrumentality of the State, is entitled to a qualified immunity. Id. 153. The Court stressed that immunity came with caveats in its exercise. First, immunity from land use controls may not "be exercised in an unreasonable fashion so as to arbitrarily override all important legitimate local interests." Ibid. Further, "even if the proposed action of the immune governmental instrumentality does not reach the unreasonable stage . . ., the instrumentality ought to consult with the local authorities and sympathetically listen and give every consideration to local objections, problems and suggestions." (pp. 20-24)

         3. Rutgers identified a number of principles that would govern whether an entity is entitled to claim immunity from local land use regulation: "the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned[, ] and the impact upon legitimate local interests." Id. at 152-53. With respect to the specific project for which immunity is sought, Rutgers requires a two-fold analysis. First, the substantive action planned by the entity claiming immunity from local land use control must itself be reasonable. Id. at 153. That determination is distinct, yet not entirely disentangled from, the second condition required of a state governmental entity acting in furtherance of its statutory mission and claiming immunity from local land use control in connection with that action: The immune entity also has an obligation to respectfully hear and consider legitimate concerns raised by local authorities to minimize conflict between the two governmental authorities. Id. at 153-54. (pp. 24-25)

         4. MSU enjoys the qualified immunity from local land use controls recognized in Rutgers. The Court notes that the Appellate Division's decision can be interpreted to have conflated the two parts of the Rutgers analysis into one and, for clarification's sake, reaffirms the two parts to the analysis that must be applied on remand. Specifically, in order for the trial court to grant MSU the relief it seeks, it must first assess the inherent reasonableness of the MSU roadway plan in its entirety, including review of its off-site impact. Separately, the trial court must also assess whether MSU reasonably consulted and took into consideration the legitimate concerns of the local government entities. The trial court must address both components, and the Appellate Division's instructions are modified accordingly. (pp. 26-29)

         5. A novel issue raised in this case is how and where public safety concerns factor into the Rutgers analysis. The Court recognizes as significant the public interest inherent in a local government entity's reasonable concerns about the impact of an immune state entity's internal actions affecting public safety on non-state public property. Where, as here, a public safety concern could affect local public property and the members of the public using that property, the Court is compelled to add an additional inquiry to the test articulated in Rutgers. A review by MSU and its experts asserting that it has reasonably addressed the public safety concern is not sufficient, standing alone. In circumstances presented here, where a facially legitimate public safety concern is raised about an immune entity's planned improvement to lands, which would have a direct impact on non-state-owned property, the Court will require a showing by the immune entity that its planning has reasonably addressed the public safety concern. The Court will require a discrete judicial finding that MSU's proposed action reasonably satisfies public safety concerns. Such a finding comes in addition to the otherwise typical review of an immune entity's modification to its own property. A judicial finding is necessary to properly protect the general public and to fairly provide an independent judicial determination on which other public entities may rely. The Court leaves to the sound discretion of the trial court whether this matter may proceed along the lines of a summary proceeding or whether the taking of live testimony or receipt of other evidence is necessary. (pp. 29-34)

         AFFIRMED AS MODIFIED.

          CHIEF JUSTICE RABNER and JUSTICES PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE LaVECCHIA's opinion. JUSTICE ALBIN did not participate.

          LAVECCHIA JUSTICE

         This appeal raises substantive and procedural issues about the immunity from local zoning laws and regulation that Rutgers v. Piluso, 60 N.J. 142 (1972), recognized for a state university with respect to improvements on state-owned land.

         Case law recognizes that a state higher educational institution like MSU, statutorily vested with control over its property, see N.J.S.A. 18A:64-7, has a form of immunity, or exemption, from local land use controls when it comes to the use and development of its own property. However, that discretionary authority is not absolute: the freedom to act independent of local land use control may not be exercised in unreasonable ways.

         In this matter, Montclair State University (MSU) commenced an action in the Law Division of the Superior Court, invoking judicial authority over an impasse that had developed between MSU and local governmental authorities concerning improvements to the intersection of a campus road with a Passaic County (County) road in the City of Clifton (City). MSU sought an order either (1) directing the County to issue three permits related to the intersection and affiliated roadway improvements; or, in the alternative, (2) declaring that state law exempts MSU from local permitting requirements or approval for its desired road improvements, regardless of whether a traffic signal is installed at the intersection.

         The trial court declined the requested relief and dismissed the action; the court told MSU either to appear before the local planning board to establish a record on the public safety concerns expressed by the local governmental authorities or to appeal. MSU appealed and the Appellate Division reversed the dismissal of the action and remanded for further proceedings before the trial court.

         We granted the City's petition for certification, seeking correction of the Appellate Division's interpretive guidance on Rutgers and clarification of that decision's application in circumstances, as here, where local authorities have raised public safety concerns. For the reasons that follow, we affirm with modification the judgment of the Appellate Division.

         We now reaffirm principles expressed in the Rutgers decision. Further, we address the application of those principles when the planned state agency activity is asserted to have a direct public safety impact affecting off-site land for which local governmental authorities have a responsibility to act in the public interest and could be potentially liable should a tort claim arise.

         First, we clarify and hold that under the qualified immunity addressed in Rutgers a state agency must be able to demonstrate both that the planned action is reasonable and that the agency reasonably consulted with local authorities and took into consideration legitimate local concerns. Meaningful consultation with appropriate local public authority is a necessary part, but consultation alone does not suffice to conclusively address the essential question about the reasonableness of the planned action.

         Second, we hold that when the otherwise immune state agency's improvement directly affects off-site property and implicates a safety concern raised by a local governmental entity responsible to protect public safety with respect to that off-site property, special judicial review and action is required. We continue to recognize that the state entity may not be compelled to submit to review before a planning board. However, in circumstances such as are presented here, a judicial finding that the cited public safety concern has been reasonably addressed through the planning for the state agency's improvement shall be a necessary additional requirement before a court may either compel local regulatory action or grant declaratory relief that the planned action is exempt from land use regulation.

         We do not intend to specify what record warrants such a finding in every case. Rather, the trial court should determine, on a case-by-case basis, whether it could make such a finding via a summary proceeding or whether a more fulsome proceeding is necessary.

         I.

         A.

         Since 2004, MSU has attempted to create a third egress from its Passaic County campus onto Valley Road, also known as Passaic County Road 621. MSU wants to relieve traffic congestion on its campus roads and provide easier access onto and off of the campus and its roadways. Specifically at issue here, MSU wants to convert Yogi Berra Drive -- a campus road on state property that intersects with Valley Road -- from an ingress-only road to an ingress/egress road.

         MSU consulted with both the County and the City about the project for almost six years. During that extended process, MSU submitted construction plans for review, retained experts to study traffic and safety concerns, and, ultimately, agreed to change portions of its plan to address concerns raised by both the County and the City. After conferring with both entities over several years, MSU was able to satisfy most concerns about the project.

         On April 7, 2014, MSU submitted permit applications to the County Engineer for the new egress. The first permit application was for a "right-of-way access permit/curb cut permit," that would allow MSU to relocate the access driveway to a new location, and to install 320 feet of "full height (raised) curbing." The permit application indicates that the purpose of the work was to construct a new driveway and add a traffic signal, and that the work would be located on Valley Road. A second permit application, asking for a storm drain connection, requested that the County allow MSU to connect a storm drain into the County's existing system at Valley Road. Finally, consistent with an alternative plan for the access driveway, MSU submitted another application also for a "right-of-way access permit/curb cut permit," allowing the University to relocate the access driveway to a new location and to install 130 feet of "full height (raised) curbing" alongside the county road.

         With respect to all of the permits, MSU asked for issuance of approval either with or without the installation of a traffic light to control the traffic on Valley Road as well as the entry and exit of traffic flowing between Valley Road and Yogi Berra Drive. The MSU Board of Trustees also adopted a resolution committing to assume the cost and maintenance of a traffic signal, if one were permitted.

         In its cover letter to the County Engineer that accompanied the permit applications, MSU recounted the extended history of discussion, public comment, and negotiation with local officials about the project, as well as the changes that had been made to its plans as a result of those consultations. MSU sought a statement that its application was now complete, asserting that the University was exempt, under Rutgers, from seeking approval for the project from the City's land use boards.

         When the County failed to respond to MSU's permit applications, MSU filed this action against the County on July 29, 2014, seeking a judgment declaring that no permit or other local approval was required, or alternatively, an order compelling the County to issue all necessary permits. The court permitted the City to intervene.

         On the return date of an order to show cause, the trial court denied MSU the relief sought. The court addressed the scope of the County's authority over the proposed construction on state land. Relying on Rutgers, the court reasoned that the parties must exchange updated traffic studies, consult further, and appear before the local planning ...


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