6-8 HOFFMAN PLACE, LLC VS. TOWNSHIP OF IRVINGTON (L-1276-18, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2141-19
6-8 HOFFMAN PLACE, LLC,
Plaintiff-Respondent,
v.
TOWNSHIP OF IRVINGTON,
Defendant-Appellant.
__________________________
Submitted December 15, 2020 – Decided March 5, 2021
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-1276-18.
Murphy Orlando LLC, attorneys for appellant (Jason
F. Orlando, John W. Bartlett and Deborah R.
Rydarowski, on the brief).
Respondent has not filed a brief.
PER CURIAM
In this action in lieu of prerogative writs, plaintiff 6-8 Hoffman Place,
LLC challenged the enforceability of ordinances adopted by defendant
Township of Irvington without the approval of the Department of
Transportation. Defendant appeals orders granting plaintiff's motion for
summary judgment and denying defendant's cross-motion for summary
judgment. We agree with the motion judge that the ordinances are invalid and
affirm.
This case involves Irvington's efforts to control truck traffic on Hoffman
Place, which begins in Irvington in Essex County and ends in the Township of
Hillside in Union County. Plaintiff's property is 6-8 Hoffman Place, which is
located and has driveway access at the dead end of Hoffman Place in Hillside,
Union County.
Section 620-20 of Irvington's Code excludes "[t]rucks over the specified
gross weight . . . from the streets or parts of streets described in Schedule VI (§
620-100) except for the pickup and delivery of materials on such streets." 1
Irvington Code Section 620-100 contains Schedule VI. On July 13, 2004,
Irvington's Municipal Council adopted Ordinance MC-3267, in which it
purported to amend Code Section 620-100 "BY LIMITING HEAVY TRUCK
1
Sections 620-20 and 620-100 of Irvington's Code were previously numbered
192-17 and 192-97, respectively, in Irvington's Revised Code. In 2018 by
Ordinance MC-3635, Irvington repealed its Revised Code and adopted the
existing code, which had the effect of renumbering some existing sections. See
Irvington Code §§ 1-1 and 1-2.
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TRAFFIC ON HOFFMAN PLACE." Ordinance MC-3267 amended Code
Section 620-100 only by adding Hoffman Place to the list of streets contained
in Schedule VI. Like Code Section 620-20, Schedule VI provided that trucks
over a stated gross weight are excluded from the listed streets "except for the
pickup and delivery of materials on such streets." Irvington's intent with
Ordinance MC-3267 was "to ensure that Hoffman Place would not be used as an
access road for an industrial property, located in Hillside . . . " – plaintiff's
property. See Irvington Ordinance MC-3276. Even though Hoffman Place ends
in Hillside in Union County, Irvington in Ordinance MC-3267 stated that
Hoffman Place "is a self-contained road with[in] the Township of Irvington and
approvals from the County of Essex and the State of New Jersey Department of
Transportation are not required."
Nevertheless, in a July 19, 2004 letter Irvington's municipal clerk
submitted Ordinance MC-3267 to the New Jersey Department of Transportation
(DOT), repeating Irvington's municipal engineer's beliefs that Hoffman Place
was a "self contained municipal street" and that Irvington did not need DOT or
county approval of the ordinance. The municipal clerk expressed his
understanding that "the mere filing of these documents constitutes DOT
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3
approval" and asked the DOT to respond "immediately" if it was not in
agreement.
In an August 3, 2004 letter, the DOT advised Irvington's clerk that a senior
traffic investigator had been assigned to investigate Irvington's request to place
a four-ton weight limit on Hoffman Place. Irvington's clerk was instructed to
contact the investigator with any questions.
Despite that letter, Irvington allowed Ordinance MC-3267 to become
effective on August 8, 2004, and on October 13, 2004, adopted Ordinance MC-
3276, which purported to amend and supplement Ordinance MC-3267. Even
though it acknowledged that "trucks that utilize Hoffman Place for the property
in Hillside pick-up and deliver at that industrial property," Irvington sought with
Ordinance MC-3276 to render inapplicable to Hoffman Place the exception for
"the pickup and delivery of materials" contained in Ordinance MC-3267 and
Code Sections 620-20 and 620-100 and that applies to every other street listed
in Code Section 620-100. In Ordinance MC-3276, that exception was expressly
removed from Hoffman Place; a four-ton weight limitation would apply to
Hoffman Place's "[e]ntire length (pick-up and delivery of materials outside of
Irvington is not excluded)." Irvington again asserted in the ordinance that
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Hoffman Place "is a self-contained road within the Township of Irvington and
approvals from the County of Essex and the [DOT] are not required."2
In an October 14, 2004 letter, Irvington's municipal clerk submitted
Ordinance MC-3276 to the DOT. Unlike his prior letter, in this letter the clerk
did not repeat the assertion that Hoffman Place was a "self contained municipal
street." Instead, he advised the DOT that "Hoffman Place runs through the
Irvington/Hillside and the Essex County/Union County borders." He
nevertheless stated his "understanding that the mere filing of these documents
constitutes DOT approval in these matters" and asked the DOT to respond
"immediately" if the DOT was not in agreement.
In a November 9, 2004 letter, the DOT advised Irvington's municipal clerk
that it had determined two issues "are required to be resolved" in order for the
2
Even though Irvington used the phrase "self-contained road" and asserted in
both ordinances that Hoffman Place was a "self-contained road," when asked to
admit that Hoffman Place is not "a self-contained road within the Township of
Irvington," repeating Irvington's own language, Irvington did not deny that
request for admission but objected on the grounds that it called for a legal
conclusion and "the phrase 'a self-contained road' is vague, ambiguous, and not
defined." In response to an allegation in the complaint that the town council had
"mistakenly presumed" that Hoffman Place was a "self-contained road within
the Township of Irvington," Irvington asserted that it lacked "sufficient
information or knowledge to admit or deny" that allegation and claimed that the
allegation stated a legal conclusion. The version of N.J.S.A. 39:4-8 on which
Irvington relies defines "self-contained streets." See infra at 12.
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DOT to complete its investigation of "the feasibility of establishing a Four (4)
Ton Weight Limitation along Hoffman Place":
1. A previous Four (4) Ton Weight Limitation has
previously been approved for Paine Avenue from
Union Avenue to Chestnut Avenue in the
Township of Irvington. Hoffman Place cannot be
accessed through Paine Avenue, except for pick-
up & deliveries (Pivnick v. Newark).
2. Since this . . . is a multi-jurisdictional Street
within the Township of Irvington and the
Township of Hillside, this request for a Four (4)
Ton Weight Limitation will be held in abeyance
pending receipt of a similar request from the
Township of Hillside.
The DOT again told the clerk to contact the investigator with any questions. 3
The clerk forwarded the letter to Irvington's municipal engineer, asking
him to "review this matter with the law department in an effort to resolve those
issues that the [DOT] describes." Apparently, that review never took place.
Irvington does not contend that it made any effort to "resolve" the DOT's issues
or to seek cooperation or agreement with Hillside or that the DOT ever received
a "similar request" from Hillside.
3
Irvington contends that Hillside did not have the sort of interest that the
Legislature intended to protect. The DOT, with its requirement that it receive a
similar request from Hillside, clearly found that Hillside had an interest in a
street that fell within its borders.
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6
Plaintiff purchased the property in 2010 from New Jersey Door Works.4
Plaintiff accesses the property through the driveway entrance on Hoffman Place
and sometimes by crossing over adjacent properties owned by others. As the
motion judge noted, the extent of Irvington's enforcement of Ordinances MC-
3267 and MC-3276 is unclear. According to plaintiff's then-attorney, he wrote
several letters to Irvington's business administrator, many of which were not
answered. In an August 25, 2017 letter from its business administrator,
Irvington advised plaintiff that it intended to enforce the four-ton weight
limitation, stating that "[u]pon recommendation of counsel, the Administration
cannot allow NJ Door Works to violate the weight limit ordinance." 5
Plaintiff filed a complaint in lieu of prerogative writs, seeking a judgment
declaring that Ordinances MC-3267 and MC-3276 are "void and unenforceable,
to the extent they prohibit the pickup and delivery of materials from and to the
Property"; declaring that the ordinances are unenforceable because they are
arbitrary, capricious, and unreasonable; ordering Irvington to amend applicable
sections of its code "to allow commercial vehicle access to both Hoffman Place
4
New Jersey Door Works, which acquired the property in 2009, is owned by
two brothers who are members of plaintiff.
5
New Jersey Doors Works stores materials at the property.
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and Paine Avenue so that they can access the Property for the pickup and
delivery of materials"; and awarding damages, fees, and costs.
Plaintiff moved for summary judgment, seeking the declaratory and
injunctive relief it sought in the complaint. Irvington cross-moved for summary
judgment. The judge denied Irvington's cross-motion and granted plaintiff's
motion, issuing an order in which she granted only the declaratory relief plaintiff
had sought that the ordinances were "void, unenforceable and [do] not prohibit
the pickup and delivery of materials from and to the Property." In a written
opinion, the judge, citing N.J.S.A. 39:4-8(a), found that "procedural deficiencies
. . . render[ed] ordinances unenforceable as enacted." She noted that Irvington
had failed to notify the DOT, Hillside, or Union County about the ordinances
before its approval of the ordinances. Quoting the DOT's November 9, 2004
letter, the judge concluded that the DOT's ruling was clear: Irvington's request
for a four-ton weight limitation on Hoffman Place would be "held in abeyance"
pending the DOT's receipt of a similar request from Hillside. Finding that
"Irvington never requested Hillside's cooperation and Hillside never submitted
a weight limitation request to the DOT," the judge concluded that in accordance
with the DOT's directive, Ordinance MC-3267 remains "held in abeyance." She
found that Irvington's enaction of Ordinance MC-3276 "does not render either
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ordinance valid" because the DOT had not approved Ordinance MC-3267 but
had "held [it] in abeyance." She rejected Irvington's laches argument, finding
that the doctrine of laches cannot be invoked when "the ordinance(s) in question
did not obtain the proper DOT approvals."
In this appeal, Irvington argues that the judge erred in not finding that
plaintiff's challenge to the validity of the ordinances was too late pursuant to
Rule 4:69-6 and the doctrine of laches; in not finding that the ordinances were
valid despite Irvington's failure to obtain DOT approval; and in relying on an
amended version of N.J.S.A. 39:4-8 that was not in place when Irvington
adopted the ordinances.
We review a trial court's grant of summary judgment "de novo under the
same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). We apply the standards
of Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995),
and Rule 4:46-2. The question is whether the evidence, when viewed in a light
most favorable to the non-moving party, raises genuinely disputed issues of fact
sufficient to warrant resolution by the trier of fact, or whether the evidence is so
one-sided that one party must prevail as a matter of law. Brill, 142 N.J. at 540.
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We review a municipal ordinance with a "presumption of validity and
reasonableness." State v. Clarksburg Inn, 375 N.J. Super. 624, 632 (App. Div.
2005). Because we presume that a governing municipal body's actions are valid,
we defer to its judgment "so long as its decision is supported by the record and
is not so arbitrary, unreasonable or capricious as to amount to an abuse of
discretion." Jayber, Inc. v. Mun. Council of W. Orange, 238 N.J. Super. 165,
173 (App. Div. 1990). To overcome that presumption, a party challenging an
ordinance must demonstrate its invalidity clearly and convincingly. Cona v.
Twp. of Washington, 456 N.J. Super. 197, 215 (App. Div. 2018). If an ordinance
is "debatable, it should be upheld." Riggs v. Long Beach, 109 N.J. 601, 611
(1988).
The presumption of validity of a local ordinance "is constrained by the
obvious understanding that '[a] statute has supremacy over an ordinance,'"
Timber Glen Phase III, LLC v. Twp. of Hamilton, 441 N.J. Super. 514, 524
(App. Div. 2015) (quoting In re Ordinance 04-75, 192 N.J. 446, 469 (2007)),
because a local governing body, as a "creature of the State," has authority to
exercise "only those powers granted to it by the Legislature." Moyant v.
Borough of Paramus, 30 N.J. 528, 535 (1959).
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A municipality may amend an ordinance "as it may deem necessary and
proper for the good government, order and protection of persons and property,
and for the preservation of the public health, safety and welfare of the
municipality and its inhabitants." N.J.S.A. 40:48-2; see also Clarksburg Inn,
375 N.J. Super. at 633.
Irvington does not dispute the applicability of N.J.S.A. 39:4-8 to this case
and the ordinances at issue. It asserts that the judge used the wrong version of
the statute. Irvington correctly notes that the judge applied the current version
of N.J.S.A. 39:4-8 instead of the version in place when Irvington adopted the
ordinances. Even applying the earlier version of the statute,6 we agree with the
judge's conclusion that the ordinances are unenforceable.
Although the version of N.J.S.A. 39:4-8 in place when Irvington adopted
the ordinances did not require – as the current version requires – Irvington to
provide notice to Hillside and Union County, the then-existing version of the
statute, like the current version, required Irvington to obtain approval of the
DOT Commissioner – something it did not do. The then-existing version of
N.J.S.A 39:4-8(a) provided:
6
N.J.S.A. 39:4-8 was amended by 2001 N.J. Sess. Law Serv. Ch. 342 (Assembly
3577), which became effective on January 5, 2002. Subsequent amendments
became effective after Irvington's adoption of the ordinances.
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Except as otherwise provided in this section, no
ordinance or resolution concerning, regulating or
governing traffic or traffic conditions, adopted or
enacted by any board or body having jurisdiction over
highways, shall be of any force or effect unless the
same is approved by the Commissioner of
Transportation according to law. The commissioner
shall not be required to approve any such ordinance,
resolution or regulation, unless, after investigation by
him, the same shall appear to be in the interest of safety
and the expedition of traffic on the public highways.
[N.J.S.A. 39:4-8 (2002) (amended 2004) (amended
2008) (emphasis added)] 7
The then-existing version of N.J.S.A 39:4-8(b) defined "self-contained
streets" as streets "under municipal jurisdiction which have no direct connection
with any street in any other municipality, or in the case of totally self-contained
streets under county jurisdiction which have no direct connection with any street
in any other county," and permitted municipalities to take certain actions, not
including limiting truck weight, on those self-contained streets without approval
of the DOT Commissioner.
The material undisputed facts establish that Hoffman Place runs from
Irvington, Essex County, into Hillside, Union County. Given that Hoffman
7
"Highway" was defined then and now as "the entire width between the
boundary lines of every way publicly maintained when any part thereof is open
to the use of the public for purposes of vehicular travel." N.J.S.A. 39:1-1.
A-2141-19
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Place in Irvington, Essex County has a direct connection to Hoffman Place in
Hillside, Union County, it clearly is not a self-contained street and Irvington's
attempt to impose a truck-weight restriction on that multi-township, multi-
county street required the approval of the DOT Commissioner. As the motion
judge correctly found, Irvington never obtained that approval. In its November
9, 2004 letter to the Irvington municipal clerk, the DOT found that Hoffman
Place was a "multi-jurisdictional" street. The DOT enumerated the issues that
Irvington had to address and stated that Irvington's request for a four-ton weight
limitation would be "held in abeyance." That is not approval.
Irvington attempts to circumvent the requirement to obtain DOT approval
by arguing that the DOT ultimately would have had to approve the ordinances.
Maybe the DOT would have approved them had Irvington addressed the issues
outlined in the DOT's November 9, 2004 letter. Maybe the DOT would have
rejected the ordinances because they were premised on the incorrect assertion
that Hoffman Place was "a self-contained road within the Township of
Irvington" and maybe Irvington would have had a cause of action against the
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DOT.8 Who knows? That speculation does not relieve Irvington of its statutory
obligation to obtain DOT approval.
Irvington's failure to obtain DOT approval is not a mere procedural
deficiency that can be overlooked. It goes to the core of Irvington's authority to
enact the ordinances. See Timber Glen, 441 N.J. Super. at 524. The authority
granted by the State to municipalities to enact street-related ordinances is
circumscribed by the requirements of N.J.S.A. 39:4-8. Irvington failed to meet
those requirements.
Another irony of this case is that Irvington faults plaintiff for the timing
of its lawsuit when Irvington took no action to challenge the DOT's 2004
decision to hold Irvington's application in abeyance. We find Irvington's
arguments as to the purported untimeliness of plaintiff's action to be
unpersuasive.
The doctrine of laches may apply when a party asserts rights (1) after an
unexplained and unexcused delay that is unreasonable under the circumstances;
8
Ironically, in making this argument, Irvington also encourages us to consider
2008 statutory amendments that, according to Irvington, reveal legislative
subcontext. We choose instead, as we must, to base our decision on the
applicable statute and the clear language of the Legislature contained in that
statute. Simadiris v. Paterson Pub. Sch. Dist., N.J. Super. , (App. Div.
2021) (slip. op. at 7).
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(2) when that delay caused unfair prejudice to the other party. Nw. Covenant
Med. Ctr. v. Fishman, 167 N.J. 123, 140 (2001). Plaintiff attempted to address
its concerns with Irvington multiple times, with some of its lawyer's letters going
unanswered. We see no unreasonable delay by plaintiff under the
circumstances. More important, laches is an equitable doctrine derived from
several equitable maxims, including "equity aids the vigilant, not those who
slumber on their rights," "he who seeks equity must do equity," and "he who
comes into equity must come with clean hands." Trapp v. Schaefer, 133 N.J.
Eq. 39, 42 (Ch. 1943). We decline to apply this equitable doctrine in a case in
which Irvington attempted to avoid the required DOT approval with incorrect
assertions that Hoffman Place was a "self-contained road in the Township of
Irvington" and took no action to challenge a 2004 DOT decision holding
Irvington's application in abeyance.
In arguing that plaintiff's claim is barred by a statute of repose, Irvington
relies on language from Rule 4:69-6(b)(3). That section of the Rule, however,
applies to "a determination of a planning board or board of adjustment , or a
resolution by the governing body or board of public works of a municipality
approving or disapproving a recommendation made by the planning board or
board of adjustment." That is not this case. Even applying Rule 4:69-6(a), we
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find timely plaintiff's action to prevent Irvington's on-going effort to enforce
invalid ordinances.
To be enforceable, an ordinance must be valid. An invalid ordinance does
not become valid over time if no one challenges it; it was never valid to begin
with. Attempting to enforce an ordinance that was never valid amounts to an
abuse of discretion. See Jayber Inc., 238 N.J. Super. at 173. Plaintiff has
established clearly and convincingly the invalidity of the ordinances. See Cona,
456 N.J. Super. at 215.
Affirmed.
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