TRADEWINDS MARINA, INC. VS. BOROUGH OF SOUTH TOMS RIVER, Â(L-3670-14, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0273-16T2
TRADEWINDS MARINA, INC.,
a New Jersey Corporation,
Plaintiff-Appellant,
v.
BOROUGH OF SOUTH TOMS RIVER,
a Municipal Corporation in the
County of Ocean, State of New
Jersey and BOROUGH OF SOUTH
TOMS RIVER PLANNING BOARD, a
Municipal Board organized by
the laws of the State of New
Jersey,
Defendants-Respondents.
_____________________________________________
Argued October 11, 2017 – Decided November 28, 2017
Before Judges Yannotti and Carroll.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Docket No. L-3670-
14.
Peter H. Wegener argued the cause for
appellant (Bathgate, Wegener & Wolf, PC,
attorneys; Mr. Wegener, on the brief).
William W. Northgrave argued the cause for
respondents (McManimom, Scotland & Baumann,
LLC, attorneys; Mr. Northgrave, on the brief;
Ted Del Guercio, III, on the brief).
PER CURIAM
Plaintiff Tradewinds Marina, Inc. filed an action in lieu of
prerogative writs in the Law Division challenging the designation
by the Borough of South Toms River (Borough) of its property as
an area in need of redevelopment, pursuant to the Local
Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73.
Plaintiff appeals from the trial court's order of August 4, 2016,
which entered final judgment in favor of defendants, the Borough
and its Planning Board. For the reasons that follow, we affirm.
I.
Plaintiff is the owner of Block 5, Lot 1 in the Borough,
which is located at the headwaters of the Toms River. The property
consists of 1.3 acres of land, with frontage on Crabbe Road and
Atlantic City Boulevard (Route 166), and it has been improved with
several buildings and structures. Plaintiff acquired the property
in November 1988 from Cedar Cove Marina, Inc. In July 2003,
plaintiff sold an adjoining lot to Lighthouse Point Marina and
Yacht Club, LLC (Lighthouse Point) and gave Lighthouse Point the
right of first refusal to purchase its property.
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Plaintiff operated a marina on the site until October 29,
2012, when the property suffered extensive damage during
Superstorm Sandy. The property had previously suffered from
neglect. Several deteriorating and sunken boats, including an
eighty-two-foot-long ferry, a tugboat, and a large wooden schooner
had been abandoned on the site. Some of those vessels had
discharged oil, gasoline, and other pollutants into the
surrounding waters.
The New Jersey Department of Environmental Protection (NJDEP)
imposed a civil administrative penalty of $115,000 upon plaintiff,
due to the violation of certain environmental laws. In addition,
dilapidated pier and dock structures on the property had encroached
upon a New Jersey Department of Transportation (NJDOT) right-of-
way, and the NJDOT imposed civil penalties upon plaintiff due to
this encroachment.
Since the death of her husband in November 2012, Mirta Monica
Miller has been plaintiff's President and sole shareholder. She
has worked with the NJDEP to rehabilitate the property by removing
the abandoned vessels and equipment, debris, and trash from the
site. In November 2014, Ms. Miller executed a consent order with
the NJDEP settling the administrative penalty for the reduced
amount of $17,500.
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In July 2014, the Borough's Council adopted Resolution 2014-
222, which authorized the Planning Board to conduct a preliminary
investigation of Block 5, Lots 1, 2, 3, 4, and 6 (the Study Area)
to determine whether it should be designated as an area in need
of redevelopment pursuant to the LRHL. Redevelopment of the Study
Area is part of a larger redevelopment plan that is intended to
revitalize a corridor, which runs from the Borough of Beachwood
to the Township of Toms River, where it connects to downtown Toms
River and continues to Route 9.
The Borough retained David G. Roberts, AICP/PP, of Maser
Consulting, PA (Maser) to conduct the investigation, and
designated Riverfront Property Associates, LLC (Riverfront) as the
conditional redeveloper for the Study Area. Donato J. Donofrio,
the registered agent for Riverfront, is the son of Donato Donofrio,
the owner of Lighthouse Point.
Roberts prepared a report entitled, "Redevelopment Study Area
Determination of Need" (the Redevelopment Study or Report). In the
Report, Roberts noted that as a result of the Borough's post-Sandy
enforcement efforts, derelict boats and debris had been removed
from Block 5, Lot 1, but he stated that the overall neglect of the
buildings and improvements on the property was evident. Roberts
wrote that an in-water boat shed was in danger of collapse, an
equipment shed was full of debris and missing a portion of its
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roof, and the roof and mansard of the main building was a public
safety hazard.
In addition, Roberts noted that bulkheads, finger docks, and
pilings on the property were in a dilapidated or collapsed
condition, which also presented a public safety hazard. Roberts
found that Lot 1 met the criteria under the LRHL for designation
as an area in need of redevelopment. He reached the same conclusion
with regard to Lots 2, 3, 4, and 6.
In August and September 2014, the Planning Board published a
notice in the Asbury Park Press stating that it would be holding
a public hearing on September 16, 2014, at which the Redevelopment
Study would be considered. The notice stated that if the municipal
Council found that the area at issue is in need of redevelopment,
the Borough would be authorized to acquire the subject property
and could do so by the exercise of the power of eminent domain.
On September 4, 2014, the Planning Board wrote to plaintiff
and provided notice pursuant to N.J.S.A. 40A:12A-6(b)(3)(d) of the
scheduled public hearing and enclosed a copy of the newspaper
notice, indicating that plaintiff's property was being considered
as a potential area in need of redevelopment under the LRHL.1 On
1
N.J.S.A. 40A:12A-6(b)(3)(d) provides in part that a copy of the
hearing notice must be sent at least ten days prior to the
scheduled hearing to the last record owner of property within the
proposed redevelopment area.
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September 15, 2014, plaintiff's attorney wrote to the Planning
Board and stated that plaintiff "strongly disputed" the
conclusions reached in the Redevelopment Study. He asked for an
adjournment of the scheduled hearing so that plaintiff could retain
engineers, architects, planners, and experts to prepare "a
complete rebuttal" to the Report.
In the letter, plaintiff's attorney also asserted that the
matter involved a conflict of interest because the Donofrios had
interests in Riverfront, the entity the Borough had designated as
the conditional redeveloper of the subject area, and in Lighthouse
Point, which had a right of first refusal to purchase plaintiff's
property. The Planning Board denied the request for an adjournment.
On September 16, 2014, the Planning Board conducted the
hearing as scheduled. Plaintiff's attorney appeared and objected
to the Board's consideration of the Report, claiming that plaintiff
did not have sufficient time to assemble experts to address the
findings regarding plaintiff's property. He again raised the
alleged conflict of interest involving the Donofrios.
The Planning Board's attorney stated that the Borough's
Council had directed the Planning Board to investigate the Study
Area and determine if it meets the criteria under the LRHL for an
area in need of redevelopment. The attorney stated that the Board
was only going to make a recommendation to the Borough's Mayor and
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Council, and if the Board elected to proceed with a vote, the
objectors would have another opportunity to present their comments
to the Council before it acted on the Board's recommendation.
The Planning Board decided to proceed with its consideration
of the Redevelopment Study and heard testimony from Dan Bloch,
AICP/PP, from Maser. Bloch summarized the Report. Plaintiff's
attorney questioned Bloch about some of the findings in the Report,
but Bloch noted that he did not write the Report and he had not
visited the site. The Planning Board voted to accept the findings
in the Report and recommend that the Council designate the Study
Area as an area in need of redevelopment. The Board memorialized
its action in Resolution 2014-05.
On October 20, 2014, the Council conducted a public hearing
to consider the Board's recommendation and public comments
regarding the Redevelopment Study. Plaintiff's attorney and Ms.
Miller provided comments to the Council. Ms. Miller explained that
the marina on plaintiff's property had closed after Superstorm
Sandy, but she was making "many repairs" to the structures. She
said the environmental cleanup was continuing.
Ms. Miller further explained that she did not have flood
insurance and she had spoken to persons from the State government
about obtaining funds to make repairs. She told the Council that
she had received bids to fix the bulkhead and dock. She also said
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that since her husband died, she was "the only one who can deal
with this."
The Council voted to accept the Planning Board's
recommendation and designated the Study Area as an area in need
of redevelopment under the LRHL. The Council memorialized its
action in Resolution 2014-262, which also authorized the Borough
to exercise the power of eminent domain to acquire property within
the Study Area.
II.
On December 5, 2014, plaintiff filed its complaint in the Law
Division challenging the Council and Planning Board's actions.
Thereafter, Judge Marlene Lynch Ford conducted a trial in the
matter. At the trial, Ms. Miller testified that conditions of the
property had improved and the environmental cleanup was
continuing. She explained her plans to renovate and revitalize the
site.
Plaintiff's attorney argued that the Planning Board failed
to comply with the LRHL because it did not permit plaintiff to
introduce expert testimony challenging the findings in the
Redevelopment Study and cross-examine the witness who appeared at
the hearing. Plaintiff's attorney also argued that the Planning
Board was not aware it was authorizing the exercise of the power
of eminent domain and that the designation of the property as an
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area in need of redevelopment was invalid because it was intended
to serve private interests. In addition, plaintiff's attorney
asserted that the conclusions in the Redevelopment Study should
not have been considered because they are an impermissible net
opinion.
On August 4, 2016, Judge Ford issued a written opinion in
which she found that the Borough's designation of plaintiff's
property as part of an area in need of redevelopment was supported
by sufficient evidence in the record and consistent with the
criteria in the LRHL. The judge determined that the Borough did
not act improperly by designating Riverfront as the conditional
redeveloper; the conclusions in the Redevelopment Study are not
an impermissible net opinion; and plaintiff had a fair opportunity
to present a full record at the Board and Council proceedings.
Judge Ford memorialized her decision in an order dated August 4,
2016, which entered final judgment for defendants. This appeal
followed.
On appeal, plaintiff argues: (1) judicial review of the
actions of the Planning Board and Council is warranted as of right;
(2) the procedures followed by the Board and Council denied
plaintiff the opportunity to present a complete record for judicial
review; (3) the Board was not advised regarding the designation
of plaintiff's property as a "condemnation development area" under
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N.J.S.A. 40A:12A-6(b)(5)(e); (4) plaintiff was improperly denied
the right to cross-examine the Borough's planning consultant; and
(5) the record lacks substantial evidence to support the Board and
Council's actions because there was no foundation for the admission
of the Redevelopment Study without testimony verifying the facts
or conditions of the property as of the hearing date.
We are not persuaded by plaintiff's arguments. We affirm the
trial court's order substantially for the reasons stated by Judge
Ford in her thorough and well-reasoned opinion. We add the
following.
III.
A decision by a municipal agency designating an area as in
need of redevelopment under the LRHL is "invested with a
presumption of validity." 62-64 Main Street, LLC v. Mayor & Council
of City of Hackensack, 221 N.J. 129, 157 (2015) (quoting Levin v.
Twp. Comm. of Bridgewater, 57 N.J. 506, 537, appeal dismissed, 404
U.S. 803, 92 S. Ct 58, 30 L. Ed. 2d 35 (1971)). "[W]hen reviewing
a decision of a municipal agency, the trial court must recognize
that the Legislature has vested discretion in the municipal agency
to make that decision." R. Neumann & Co. v. City of Hoboken, 437
N.J. Super. 384, 391 (App. Div. 2014) (quoting Charlie Brown of
Chatham, Inc. v. Bd. of Adj. for Chatham Twp., 202 N.J. Super.
312, 321 (App. Div. 1985)). "[B]ecause of their peculiar knowledge
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of local conditions," municipal agencies "must be allowed wide
latitude in the exercise of their delegated discretion." Ibid.The court "need not determine if [it] would have concurred
in the designation" but need only determine "if [the designation]
is supported by substantial evidence." Ibid. (quoting Forbes v.
Bd. of Tr. of Twp. of S. Orange Vill., 312 N.J. Super. 519, 532
(App. Div.), certif. denied, 156 N.J. 411 (1998)). "So long as the
blight determination is supported by substantial evidence in the
record, a court is bound to affirm that determination." 62-64 Main
Street, supra, 221 N.J. at 157 (citing Gallenthin Realty Dev.,
Inc. v. Borough of Paulsboro, 191 N.J. 344, 372–73 (2007)); see
also N.J.S.A. 40A:12A:6(b)(5).
Municipal discretion is not, however, unfettered and
"[j]udicial deference does not mean that a court is a rubber
stamp." 62-64 Main Street, supra, 221 N.J. at 157 (citing Levin,
supra, 57 N.J. at 537). "A court may set aside a municipal board
decision if it is shown to be arbitrary, capricious or
unreasonable, not supported in the evidence, or otherwise contrary
to law." Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 378
(citing Reid v. Twp. of Hazlet, 198 N.J. Super. 229, 234 (App.
Div.), certif. denied, 101 N.J. 262 (1985)), cert. denied, 519
U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996).
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Plaintiff argues that the procedures followed by the Planning
Board and Council did not afford plaintiff the opportunity to
present a complete record for judicial review. We disagree. Here,
the Board and the Council adhered to the requirements of the LRHL
in designating plaintiff's property as part of an area in need of
redevelopment.
As noted, in July 2014, the Council adopted a resolution
directing the Planning Board to investigate the Survey Area to
determine if it constituted an area in need of redevelopment under
the LRHL. The Board published notice of the public meeting, which
was scheduled to consider the Redevelopment Survey. At that
meeting, Bloch, Roberts's associate, presented the Report to the
Board, and the Board permitted members of the public to comment.
Plaintiff's attorney began to question Bloch, but Bloch noted
that he did not write the report and he had not visited the
property. The Board's attorney stated that Bloch was not present
to go "back and forth" with plaintiff's counsel regarding the
findings in the Report. The Board's attorney observed that the
proceeding was not a trial. Counsel stated that plaintiff could
rebut the findings in the Report when the Council considered the
Report.
At the Council's public hearing, Roberts presented the
Redevelopment Study to the Council members. Plaintiff's attorney
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provided comments on the Report, Roberts's testimony, and the
Planning Board's recommendation. Ms. Miller also testified and
disputed certain findings in the Report. She described the current
condition of the property and her ongoing renovation and
rehabilitation efforts.
Judge Ford aptly noted that the LRHL does not require the
Planning Board or the Council to permit cross-examination of
witnesses at the public hearings on whether an area should be
designated as an area in need of redevelopment. The judge also
determined that even if the Council erred by not permitting
plaintiff's attorney to cross-examine Roberts, plaintiff was not
precluded from presenting its own facts and opinions on the record.
Plaintiff argues, however, that the Council improperly
refused to allow it to present testimony from its architect. At
the hearing, plaintiff's attorney stated that he wanted to have
plaintiff's architect present the Council with "a drawing of some
different things" for its consideration. In her testimony, Ms.
Miller indicated that she had retained the architect and she wanted
to show the Council the potential concept plan he had drawn up.
An attorney for the Council stated that it was premature to
consider redevelopment plans for the site. He asserted that it was
appropriate for a property owner to speak about the current
condition of the property as it relates to the Redevelopment Study,
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but "what will happen on that property is for another day." The
attorney asserted that the issue for the Council at that meeting
was whether the property met the criteria under the LRHL for
designation as an area in need of redevelopment.
We are convinced that the Council did not abuse its discretion
by refusing to permit plaintiff's architect to testify at the
public meeting. The Council properly limited the testimony to the
presentation of facts relevant to the issue at hand, that is,
whether the property as described in the Redevelopment Study met
the criteria for designation as an area in need of redevelopment
under the LRHL. The record shows that plaintiff's architect
intended to discuss future plans for the property. That testimony
was beyond the scope of the proceeding.
IV.
Plaintiff further argues that the Board was not advised
regarding the designation of the property as a "condemnation
redevelopment area" under N.J.S.A. 40A:12A-6(b)(5)(e). Plaintiff
notes that the designation of a "condemnation redevelopment area"
operates as a finding of public purpose, which authorizes a
municipality, or redevelopment entity, to exercise the power of
eminent domain to acquire property in the redevelopment area.
Plaintiff asserts that comments by members of the Planning
Board at the September 16, 2014 public hearing indicated that they
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were not aware they were recommending that the Borough exercise
its condemnation power for the acquisition of properties in the
redevelopment area. However, as the record shows, one Planning
Board member noted that the Board was "not here to take anybody's
property tonight. We are here to just determine if this area is
in need of revitalization."
As the Board's attorney observed, the Board's determination
is "step one of a very long process." After the Council adopts a
resolution designating the property as a redevelopment area, the
municipal Council must then develop a "redevelopment plan"
pursuant to N.J.S.A. 40A:12A-7. Only after the adoption of a
redevelopment plan may a municipality or designated redevelopment
entity acquire, by the exercise of the power of eminent domain,
any land or building necessary for the project. N.J.S.A. 40A:12A-
8.
Therefore, the Planning Board recognized that its sole
responsibility in conducting the public hearing on the
Redevelopment Study was to determine whether the subject property
constitutes an area in need of redevelopment under the LRHL and
make a recommendation to the Mayor and Council on that issue. The
LRHL did not require the Board to make any judgment as to the
exercise of the power of eminent domain, and the record does not
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support plaintiff's contention that the Board was not properly
advised of its role in the process.
V.
Plaintiff also argues that the Planning Board and Council's
actions are not supported by sufficient credible evidence. Again,
we disagree.
"A redevelopment area may include lands, buildings, or
improvements which themselves are not detrimental to the public
health, safety or welfare, but the inclusion of which is found
necessary, with or without change in their condition, for the
effective redevelopment of the area of which they are a part."
N.J.S.A. 40A:12A-3. Property may be designated an area in need of
redevelopment if the property satisfies any one of eight statutory
criteria. N.J.S.A. 40A:12A-5.
The Redevelopment Study reviewed each of the lots in the
Survey Area. As noted, the Report concluded that plaintiff's
property met three criteria under N.J.S.A. 40A:12A-5. It included
buildings that are substandard, dilapidated, or obsolescent.
N.J.S.A. 40A:12A-5(a). Furthermore, the use of the bulkhead and
docks had been discontinued and met the criteria under N.J.S.A.
40A:12A-5(b). These structures had been allowed to deteriorate to
the point where they are no longer tenantable. Moreover, the
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physical condition of the buildings and improvements is hazardous
and presents a danger to the public safety. N.J.S.A. 40A:12A-5(d).
Plaintiff argues that the Planning Board erred by relying
upon the Report because Roberts was not present to introduce the
Report and explain its findings. Roberts's presence was not
required for the Board's consideration of the Report. Moreover,
as noted previously, Roberts was present when the Report was
presented to the Council for its consideration.
Judge Ford also noted that plaintiff had been permitted to
challenge the opinions in the Redevelopment Study and present its
own facts as to the conditions of the property. The judge correctly
found that there was sufficient evidence in the record to support
the Planning Board and the Council's findings that plaintiff's
property was part of an area in need of redevelopment under
N.J.S.A. 40A:12A-5.
Affirmed.
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