PARKING AUTHORITY OF THE CITY OF PATERSON VS. THEODORE LEVINE (L-1338-18, PASSAIC COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4376-18T2
PARKING AUTHORITY OF
THE CITY OF PATERSON,
Plaintiff-Appellant,
v.
THEODORE LEVINE, ESTATE
OF ALAN C. LEVINE, and
LEVINE INDUSTRIES, INC.,
Defendants-Respondents.
_____________________________
Argued February 26, 2020 – Decided March 24, 2020
Before Judges Fuentes, Mayer and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-1338-18.
William W. Northgrave argued the cause for appellant
(McManimon, Scotland & Baumann, LLC, attorneys;
William W. Northgrave, Demetrice R. Miles, Jennifer
Credidio, and Ted Del Guercio, III, on the briefs).
Richard P. De Angelis argued the cause for respondents
(McKirdy, Riskin, Olson & Della Pelle, PC, attorneys;
Richard P. De Angelis, of counsel and on the brief).
PER CURIAM
Plaintiff Parking Authority of the City of Paterson (Authority) appeals
from the following orders: a January 8, 2019 order denying the Authority's
request to access property owned by defendants Theodore Levine, Estate of Alan
C. Levine, and Levine Industries, Inc. to conduct pre-condemnation testing
pursuant to N.J.S.A. 20:3-16; a March 26, 2019 order denying reconsideration
of the January 8 order; and a June 11, 2019 order awarding attorney's fees and
costs to defendants in accordance with N.J.S.A. 20:3-26(b). We affirm all orders
on appeal.
On April 8, 2008, the governing body of the City of Paterson (City)
adopted a resolution declaring an area within the municipality in need of
rehabilitation in accordance with N.J.S.A. 40A:12A-7 and -14 of the Local
Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73. The
area in need of rehabilitation was known as "Area #11 Neighborhood
Redevelopment Zone" (Area #11). Defendants own property in Area #11 on
Court Street (Property).
In 2018, the Authority attempted to purchase the Property, indicating it
would invoke the power of eminent domain if defendants declined to sell.
Before deciding whether to sell, defendants requested information concerning
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the Authority's proposed use of the Property. The Authority stated the Property
was needed for a "public use" in connection with the development of a parking
facility. Defendants then asked the Authority to provide a copy of the resolution
authorizing acquisition of the Property and studies supporting the need for a
parking facility on the site. The Authority did not respond to defendants' request
for information and defendants refused to sell the Property to the Authority.
The Authority filed a verified complaint and order to show cause (OTSC)
seeking entry to the Property to conduct an environmental site assessment and
testing pursuant to N.J.S.A. 20:3-16 of the Eminent Domain Act of 1971,
N.J.S.A. 20:3-1 to -50. The Authority claimed it required preliminary access to
decide whether to acquire the Property through eminent domain. The Authority
relied on N.J.S.A. 40:11A-7 of the Parking Authority Law, N.J.S.A. 40:11A-1
to -26, in support of its right to take the Property by eminent domain.
On the return date of the OTSC, the judge ordered the Authority to provide
documents regarding its intended use of the Property. After the Authority
produced documents supporting the need to acquire the Property, the parties
presented arguments to the judge concerning the Authority's application for
preliminary entry to the Property under N.J.S.A. 20:3-16.
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To obtain preliminary access to property prior to exercising the power of
eminent domain, the prospective condemnor must have the "authority to
condemn" the property in question. N.J.S.A. 20:3-16. Therefore, the judge
determined the Authority's right to condemn had to be resolved before he could
consider the application for preliminary entry to the Property.
To decide that question, the judge reviewed the City's designation of Area
#11 as an area in need of rehabilitation in accordance with the LRHL. Because
the Property was within Area #11, there were "stringent requirements upon the
governing body to acquire real property within the designated area through the
means of eminent domain." Relying on N.J.S.A. 40A:12A-15, the judge held,
"[o]nce the governing body adopts by ordinance or resolution the designation of
'[A]rea in [N]eed of [R]ehabilitation,' 'the municipality shall not have the power
to take or acquire private property by condemnation in furtherance of a
redevelopment plan[]'" absent one of three enumerated exceptions.
The judge held "the only issue before the [c]ourt [was] whether the
discretionary decision by the City of Paterson designating Area #11 an Area in
Need of Rehabilitation was arbitrary or capricious, contrary to law, or
unconstitutional." The judge reviewed the findings and conclusions set forth in
the City's resolution designating Area #11 as an area in need of rehabilitation,
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and concluded the City's designation complied with the requirements of the
LRHL and therefore was not arbitrary, capricious, or unlawful.
Based on the City's designation of Area #11 as in need of rehabilitation
under the LRHL, the Authority could not acquire the Property by eminent
domain unless it had the power to implement rehabilitation or redevelopment
activities as a "municipality" or "redevelopment entity." N.J.S.A. 40A:12A-15.
Absent designation as a redevelopment entity, the Authority lacked the requisite
"authority to condemn" the Property and therefore was not entitled to
preliminary entry under N.J.S.A. 20:3-16. The judge denied the Authority's
application for preliminary entry to the Property in a January 8, 2019 written
statement of reasons.
The Authority moved for reconsideration, claiming it satisfied the
exception set forth in N.J.S.A. 40A:12A-15(b), allowing condemnation of
property in an area in need of rehabilitation, because it possessed the power of
eminent domain as "authorized under any other law of this State." The Authority
argued the Parking Authority Law, specifically N.J.S.A. 40:11A-7, satisfied the
"any other law of this State" exception. The judge denied the reconsideration
motion.
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Thereafter, defendants filed an application for fees and costs pursuant to
N.J.S.A. 20:3-26(b). In a June 11, 2019 order, the judge awarded the sum of
$22,949.43 to defendants' counsel. The judge determined reasonable fees and
costs were authorized because the Authority could not acquire the Property by
condemnation. The judge found nothing in the language of N.J.S.A. 20:3-26
required the filing of a condemnation action as a prerequisite to an award of fees
and costs.
On appeal, the Authority contends the judge erred in denying it access to
the Property pursuant to N.J.S.A. 20:3-16. In addition, the Authority claims it
has the right to exercise the power of eminent domain despite the Property's
location in an area in need of rehabilitation because it satisfied the exception in
40A:12A-15(b) of the LRHL. Further, the Authority asserts the judge erred in
denying its motion for reconsideration and awarding defendants' fees and costs
pursuant to N.J.S.A. 20:3-26(b).
"[A] municipality's adoption of . . . a redevelopment plan[] is a
discretionary decision . . . ." Powerhouse Arts Dist. Neighborhood Ass'n v. City
Council of Jersey City, 413 N.J. Super. 322, 332 (App. Div. 2010). "A court
will uphold such an exercise of discretion unless 'arbitrary or capricious,
contrary to law, or unconstitutional.'" Ibid. (quoting Downtown Residents for
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Sane Dev. v. City of Hoboken, 242 N.J. Super. 329, 332 (App. Div. 1990)). The
"findings underlying the municipal governing body's redevelopment
decision . . . must be adequately supported by the record, lest the resulting plan
adoption be arbitrary or capricious." Id. at 333 (footnote omitted) (citing
Infinity Broad. Corp. v. N.J. Meadowlands Comm'n, 377 N.J. Super. 209, 225
(App. Div. 2005), rev'd on other grounds, 187 N.J. 212 (2006)).
"Actions of a [municipal body] are presumed to be valid and the party
attacking such action has the burden of proving otherwise." N.Y. SMSA Ltd.
P'ship v. Bd. of Adjustment of Twp. of Bernards, 324 N.J. Super. 149, 163 (App.
Div. 1999). "When we consider an appeal of a trial court's review of a municipal
board's action, we are bound by the same standard as the trial court." Cohen v.
Bd. of Adjustment of Borough of Rumson, 396 N.J. Super. 608, 614-15 (App.
Div. 2007). However, we review interpretations of law de novo. See Nuckel v.
Borough of Little Ferry Planning Bd., 208 N.J. 95, 102 (2011).
We first consider the Authority's argument that it had the right to exercise
the power of eminent domain. Neither the judge nor defendants disputed that
the Authority has the right to exercise eminent domain pursuant to the Parking
Authority Law, specifically N.J.S.A. 40:11A-7. However, the right to eminent
domain under the Parking Authority Law must be read in conjunction with the
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LRHL because the City designated Area #11 to be in need of rehabilitation. In
accordance with the LRHL, "[u]pon the adoption of a redevelopment plan
pursuant to [N.J.S.A. 40A:12A-7], the municipality or redevelopment entity
designated by the governing body may proceed with the clearance, replanning,
development and redevelopment of the area designated in that plan." N.J.S.A.
40A:12A-8 (emphasis added).
In accordance with N.J.S.A. 40A:12A-4(c) of the LRHL, a municipality
may delegate its rehabilitation function to "a municipal redevelopment agency
[or] a parking authority authorized to exercise redevelopment powers within the
municipality . . . , but there shall be only one redevelopment entity responsible
for each redevelopment project." N.J.S.A. 40A:12A-3 of the LRHL defines the
terms "redevelopment entity," "redevelopment agency," and "parking
authority." The Authority must qualify as one of these entities to oversee and
implement a redevelopment plan in an area designated as in need of
rehabilitation.
A "redevelopment entity" means "a municipality or an entity authorized
by the governing body of a municipality pursuant to [N.J.S.A. 40A:12A-4(c)] to
implement redevelopment plans and carry out redevelopment projects . . . in an
area in need of rehabilitation . . . ." N.J.S.A. 40A:12A-3. A "redevelopment
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agency" means an "agency created pursuant to [N.J.S.A. 40A:12A-11(a)]." Ibid.
A "parking authority" means "a public corporation created pursuant to the
'Parking Authority Law,' . . . and authorized to exercise redevelopment powers
within the municipality." Ibid. (emphasis added).
Words of a statute are to be "read . . . in context with related provisions
so as to give sense to the legislation as a whole." DiProspero v. Penn, 183 N.J.
477, 492 (2005) (citations omitted). We are required to read the parts of a statute
"so that none are rendered meaningless." State v. Rangel, 213 N.J. 500, 512
(2013). "[E]very word in a statute has meaning and is not mere surplusage."
Timber Glen Phase III, LLC v. Twp. of Hamilton, 441 N.J. Super. 514, 522
(App. Div. 2015) (quoting Jersey Cent. Power & Light Co. v. Melcar Util. Co.,
212 N.J. 576, 587 (2013)). "Words in a statute should not be read in isolation."
Shelton v. Restaurant.com, Inc., 214 N.J. 419, 440 (2013).
The Authority argued N.J.S.A. 40A:12A-15(b), allowing the power to
condemn "under any other law of this State," grants it authority to exercise
eminent domain and obtain preliminary entry to the Property. However, the
statute must be read in its entirety. N.J.S.A. 40A:12A-15 authorizes "a
municipality or redevelopment entity" to proceed with "redevelopment and
rehabilitation of an area in need of rehabilitation." There is no evidence the City
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authorized the Authority to act as a redevelopment agency, redevelopment
entity, or even a parking authority having redevelopment powers. The Authority
relied on Resolution 10-08-2017 in support of its right to exercise the power of
eminent domain consistent with N.J.S.A. 40:11A-7. Nothing in that resolution
conveyed redevelopment power to the Authority.
Having reviewed the record, we are satisfied the judge properly held the
Authority could not condemn the Property because it is situated within Area
#11, which the City designated as an area in need of rehabilitation under the
LRHL, and the Authority was never designated a redevelopment entity,
redevelopment agency, or authorized by the municipality to exercise
redevelopment or rehabilitation powers consistent with the LRHL. Absent the
"authority to condemn," the Authority cannot obtain preliminary access to the
Property.1
1
We agree with the judge's determination but do so for reasons other than those
expressed by the motion judge. We affirm or reverse judgments and orders, not
reasons. Isko v. Planning Bd. of Twp. of Livingston, 51 N.J. 162, 175 (1968);
Walker v. Briarwood Condo Ass'n, 274 N.J. Super. 422, 426 (App. Div. 1994).
A correct result, even if grounded on an erroneous basis in fact or in law, will
not be overturned on appeal. See GNOC, Corp. v. Dir., Div. of Taxation, 328
N.J. Super. 467, 474 (App. Div. 2000), aff'd as modified, 167 N.J. 62 (2001).
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We next review the denial of the Authority's motion for reconsideration.
The standard of review for denial of reconsideration is whether the trial court
abused its discretion. Triffin v. Johnston, 359 N.J. Super. 543, 550 (App. Div.
2003). "Reconsideration itself is 'a matter within the sound discretion of the
[c]ourt, to be exercised in the interest of justice[.]'" Palombi v. Palombi, 414
N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J.
Super. 392, 401 (Ch. Div. 1990)). A motion for reconsideration
should be utilized only for those cases which fall into
that narrow corridor in which either 1) the [c]ourt has
expressed its decision based upon a palpably incorrect
or irrational basis, or 2) it is obvious that the [c]ourt
either did not consider, or failed to appreciate the
significance of probative, competent evidence.
[Ibid. (quoting D'Atria, 242 N.J. Super. at 401).]
We will not disturb denial of a motion for reconsideration absent a clear
abuse of discretion. Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440
N.J. Super. 378, 382 (App. Div. 2015).
Having reviewed the record, we discern no abuse of discretion in the
judge's denial of the Authority's motion for reconsideration. The Authority
failed to articulate any new facts or matters overlooked by the judge. See R.
4:49-2.
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We next consider the award of legal fees and costs to defendants. The
decision to award attorney's fees is committed to the discretion of the trial court.
Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). Fee
determinations will be disturbed "only on the rarest of occasions, and then only
because of a clear abuse of discretion." Ibid. (quoting Rendine v. Pantzer, 141
N.J. 292, 317 (1995)).
Pursuant to N.J.S.A. 20:3-26(b), the court shall award the property owner
reasonable sums for costs and fees "[i]f the court renders final judgment that the
condemnor cannot acquire the real property by condemnation[.]" Here, the
judge expressly concluded the Authority could not acquire the Property by
condemnation, triggering a statutory basis to award fees and costs.
The judge reviewed counsel's certification stating defendants' fees and
costs incurred in litigating the Authority's right to condemn the Property and
arrived at a reasonable award based on his assessment of the described services
and incurred costs. We are satisfied the judge did not abuse his discretion in
awarding counsel fees and costs to defendants consistent with N.J.S.A. 20:3-
26(b).
Affirmed.
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