Associated Builders & Contractors Inc. v. City of Jersey City

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 15-3166
_______________
ASSOCIATED BUILDERS AND CONCTRATORS INC
NEW JERSEY CHAPTER; GMP CONTRACTING LLC;
ALPINE PAINTING & SANDBLASTING
CONTRACTORS; ALPER ENTERPRISES INC;
RON VASILIK
Appellants
v.
CITY OF JERSEY CITY, NEW JERSEY;
HUDSON COUNTY BUILDING AND CONSTRUCTION
TRADES COUNCIL (Intervenor in District Court)
_______________
On Appeal from the United States District Court
for the District of New Jersey
(No. 2-14-cv-05445)
Honorable Susan D. Wigenton, District Judge
_______________
Argued: June 8, 2016
Before: CHAGARES, KRAUSE, and SCIRICA, Circuit
Judges
(Opinion Filed: September 12, 2016)
Russell J. McEwan, Esq. (Argued)
Ivan R. Novich, Esq.
Littler Mendelson
1085 Raymond Boulevard
One Newark Center, 8th Floor
Newark, NJ 07102
Attorneys for Plaintiff-Appellants
Zahire D. Estrella, Esq. (Argued)
Jersey City Law Department
280 Grove Street
City Hall
Jersey City, NJ 07302
Attorney for Defendant-Appellee
Raymond G. Heineman, Esq. (Argued)
Seth Ptasiewicz, Esq.
Kroll Heineman
99 Wood Avenue South
Metro Corporate Campus I, Suite 307
Iselin, NJ 08830
Attorney for Defendant-Intervenor-Appellee
_______________
OPINION OF THE COURT
_______________
2
KRAUSE, Circuit Judge.
In an effort to stimulate economic development, Jersey
City, New Jersey offers tax exemptions and abatements to
private developers of projects in certain designated areas.
Under a law passed by the City, however, those tax benefits
are conditioned on the developers’ entry into agreements with
labor unions that bind the developers to specified labor
practices. Appellants in this case, various employers and a
trade group, sought to challenge that law on the grounds that
it is preempted by the National Labor Relations Act
(“NLRA”) and Employee Retirement Income Security Act
(“ERISA”) and barred by the dormant Commerce Clause of
the U.S. Constitution. The District Court dismissed
Appellants’ complaint, concluding that Jersey City acts as a
market participant, not a regulator, when it enforces the law,
and therefore that Appellants’ NLRA, ERISA, and dormant
Commerce Clause claims were not cognizable. Because we
conclude that Jersey City was acting as a regulator in this
context, we will reverse and remand for those claims to be
reinstated.
I.
A.
New Jersey’s Long Term Tax Exemption Law and
Five-Year Exemption and Abatement Law authorize local
governments in the State to provide tax exemptions and
abatements to private developers of projects within areas the
locality has marked for redevelopment. See N.J. Stat. Ann.
3
§§ 40A:20-1 to -22; 40A:21-1 to -21.1 The exemptions on
such Tax Abated Projects significantly reduce developers’
property tax burden, although developers may still be
required to make payments in lieu of property taxes. See Id.
§ 40A:21-10.
With this authorization, Jersey City offers tax
exemptions to private developers on certain redevelopment
projects. However, Section 304 of Jersey City’s Municipal
Code (the “Ordinance”) imposes certain requirements on
developers of “Public Construction Project[s],” which are
projects costing at least $5,000,000 (excluding land
acquisition costs) and “entered into by the City using public
funds,” and “Tax Abated Project[s],” which are projects
costing at least $25,000,000 (excluding land acquisition costs)
and funded only with private investment.2 Jersey City, N.J.,
1
Under the relevant New Jersey law, abatements and
exemptions are flip sides of the same coin. An “abatement”
is “that portion of the assessed value of a property as it
existed prior to construction, improvement or conversion of a
building or structure thereon, which is exempted from
taxation pursuant to” the Five-Year Exemption and
Abatement Law, while an “exemption” is “that portion of the
assessor’s full and true value of any improvement, conversion
alteration, or construction not regarded as increasing the
taxable value of a property pursuant to” that law. N.J. Stat.
Ann. § 40A:21-3(a), (l). For ease of reference, we will use
the term “exemption” in this opinion other than in proper
names and quoted material.
2
Neither the City nor intervenor Hudson County
Building and Construction Trades Council disputes that Tax
4
Mun. Code § 304-33(8) to -33(9) (“Mun. Code”); see
Associated Builders & Contractors, Inc. v. City of Jersey
City, 2:14-cv-05445, 2015 WL 4640600, at *1-2 (D.N.J. Aug.
3, 2015); Compl. ¶ 9; Appellants’ Br. at 34.
Specifically, the Ordinance requires that, prior to
commencing work on construction projects exceeding these
thresholds, developers of such projects must execute project
labor agreements (“PLAs”), unless the City’s Business
Administrator determines that a PLA is not appropriate in
light of the “nature, size, and complexity of the project.”
Mun. Code § 304-33(7), 34(1). PLAs require developers of
Tax Abated Projects to abide by a pre-hire collective
bargaining agreement that will cover all employees for the
Abated Projects governed by the Ordinance are projects
funded only with private investment. At the same time they
have offered no explanation of how the City can require
contractors to enter into a project labor agreement (“PLA”)
with respect to anything other than projects that use public
funds when the authorizing statute provides only that “[a]
public entity may include a [PLA] in a public works project
on a project-by-project basis.” N.J. Stat. Ann. § 52:38-3; see
Tormee Constr., Inc. v. Mercer Cty. Improvement Auth., 669
A.2d 1369, 1372 (N.J. 1995) (holding, prior to the enactment
of § 52:38-3, that a government entity did not have the
authority to require contractors to enter into PLAs that would
require the use of one of two unions on “routine [public]
construction projects”); George Harms Constr. Co. v. N.J.
Tpk. Auth., 644 A.2d 76, 94 (N.J. 1994) (holding that a
government entity could not require contractors to enter into
PLAs requiring the use of a particular union in the absence of
express legislative authority).
5
duration of the Tax Abated Project and that also will bind the
developer’s contractors and subcontractors. Id. § 304-33(7),
-33(9), -34(1), -35(3). Because a PLA, by definition, is
entered into with a labor union, it requires that an employer
negotiate with a labor union and that all employees be
represented by that labor union as part of the negotiations—
even if the developers, contractors, and subcontractors do not
ordinarily employ unionized labor and the employees are not
union members. See Compl. ¶¶ 16, 31. The PLAs required
by the Ordinance also specify that “there will be no strikes,
lock-outs, or other similar actions” and that the developer and
union will agree to procedures to resolve any labor disputes.
Mun. Code § 304-35(1) to -35(2). Under the Ordinance, with
limited exceptions, each contractor and subcontractor
working on a Tax Abated Project must have “a local federally
registered apprenticeship program,” and twenty percent of all
labor hours must be performed by apprentices who are City
residents. Id. § 304-35(4) to -35(5).
Having accepted the obligations of a PLA, a developer
who fails to fulfill them does so at its peril. Among other
significant consequences it can impose, the City may
“[s]uspend the tax abatement” until the developer complies
with the PLA, during which time the City can assess three
times the amount of conventional real estate taxes. And if the
developer fails to cure within six months, the City may
terminate the exemption. Id. § 304-37(2). The City may also
collect liquidated damages that include, among other things, a
payment of two percent of the annual payment in lieu of taxes
for each month a developer, contractor, or subcontractor is in
material breach. Id. Further, if a developer estimates that the
cost of a project that received a tax exemption will be less
than $25,000,000 such that a PLA is not required, but the
6
total cost meets or exceeds that threshold upon completion,
then the developer must pay significantly increased payments
in lieu of taxes. Id. § 304-37(3).
B.
Appellant Associated Builders and Contractors, Inc.,
New Jersey Chapter (“ABC-NJ”) is a non-profit organization
that “advocat[es] for open competition in the award of
construction contracts based on merit, and regardless of the
bidding contractor’s labor affiliation.” Compl. ¶ 2.
Appellants GMP Contracting LLC, Alpine Painting &
Sandblasting Contractors, and Alper Enterprises, Inc., are
New Jersey businesses and members of ABC-NJ, and
Appellant Ron Vasilik is an employee of Alpine.3 Together,
these Appellants allege that they and other members of ABC-
NJ have been “deterred” from bidding on projects covered by
the Ordinance for various reasons, including because they
have no established relationships with any union and have
never worked under PLAs; they would have to hire
employees through a union hiring hall and not in accordance
3
GMP, Alpine, Alper, and Vasilik have standing to
challenge the Ordinance based on their own alleged injuries.
See Nat’l Assoc. for the Advancement of Multijurisdiction
Practice v. Castille, 799 F.3d 216, 218 n.1 (3d Cir. 2015).
ABC-NJ, on the other hand, has associational standing to
challenge the Ordinance because some of its members
allegedly were injured and therefore would otherwise have
standing to sue; the interests ABC-NJ seeks to protect are
germane to its purpose; and the claims asserted and the relief
sought do not require the participation of ABC-NJ’s
individual members. See Neale v. Volvo Cars of N. Am.,
LLC, 794 F.3d 353, 365 (3d Cir. 2015).
7
with their own standards; they would be restricted to hiring
only subcontractors that also comply with PLAs; and they
would have to force their employees to comply with an
agreement negotiated by a union regardless of their
employees’ desires. Compl. ¶ 31.
Appellants sued to enjoin enforcement of the
Ordinance in August 2014, bringing five counts. Count I
alleges that the Ordinance is preempted by sections 7 and 8 of
the NLRA, 29 U.S.C. §§ 157-158. Count II alleges that the
Ordinance violates the dormant Commerce Clause and
Privileges and Immunities Clause of the U.S. Constitution
because the Jersey City apprenticeship requirement unduly
favors in-state individuals and denies out-of-state individuals
access to the privileges and immunities of in-state
apprentices. Count III alleges that the apprenticeship
requirement is also preempted by ERISA, 29 U.S.C.
§ 1144(a). Count IV alleges violations of the Due Process
and Equal Protection Clauses of the U.S. and New Jersey
constitutions. Finally, based on the alleged constitutional
violations, Count V asserts a claim under 42 U.S.C. § 1983.
In the District Court, the Hudson County Building and
Construction Trades Council (“Council”) filed a motion to
intervene, which was granted. The Council, joined by the
City, filed a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6), arguing
among other things, that the NLRA, dormant Commerce
Clause, and ERISA do not apply because the City imposes
and enforces the PLA requirement in its capacity as a market
participant, not a regulator.4 The Council also argued that
4
The City joined in the motion to dismiss, but because
the City had already filed an answer, the City’s motion was
8
none of Appellants had standing to bring a Privileges and
Immunities Clause claim because none of them are from
outside New Jersey. Appellants opposed the motion and also
sought to file an amended complaint pursuant to Federal Rule
of Civil Procedure 15(a) that would have clarified some of the
allegations and added an out-of-state plaintiff in an effort to
cure the alleged standing deficiency.
The District Court determined that the City enforces
the Ordinance as a market participant, thus rendering the
NLRA, ERISA, and Commerce Clause claims not cognizable.
See Associated Builders, 2015 WL 4640600, at *5-7. Having
rejected the remaining claims, the District Court granted the
12(b)(6) and 12(c) motions in full and denied ABC-NJ’s Rule
15(a) motion for leave to amend. On appeal, however,
Appellants challenge only the District Court’s ruling on the
NLRA, ERISA, and dormant Commerce Clause claims, see
Oral Arg. Tr. at 16 (argued June 8, 2016), thus presenting
only the question of whether the City is properly deemed as a
market participant, in which case Appellants’ claims under
the NLRA, ERISA, and dormant Commerce Clause are not
viable, or whether the City instead enforces the Ordinance in
its capacity as a regulator, in which case the Ordinance might
be preempted under the NLRA or ERISA or forbidden by the
dormant Commerce Clause.
treated as one for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c).
9
II.5
We review dismissals for failure to state a claim and
grants of motions for judgment on the pleadings de novo,
taking all factual allegations in the complaint as true and
construing them in the light most favorable to the plaintiff.
See Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir.
2010) (setting forth the standard of review for motions to
dismiss); Rose v. Bartle, 871 F.2d 331, 342 (3d Cir. 1989)
(equating the standard of review for motions to dismiss and
motions for judgment on the pleadings).
III.
The NLRA, ERISA, and the dormant Commerce
Clause generate distinct doctrines, but by virtue of the
Supremacy Clause, these statutes and this constitutional
provision will supersede state or local law in certain
circumstances. The NLRA preempts any state or local law
that regulates conduct falling within sections 7 or 8 of the
NLRA—sections that safeguard an employee’s right to join,
or refrain from joining, a labor union, 29 U.S.C. § 157, and
that render it an unfair labor practice for an employer to
“support” a labor organization through “financial” or other
means or to “refuse to bargain collectively with the
representatives of his employees,” id. § 158(a)(2), (5). See
generally San Diego Bldg. Trades Council, Millmen’s Union,
Local 2020 v. Garmon, 359 U.S. 236 (1959). In addition,
recognizing that Congress prescribed a certain balance of
5
The District Court had jurisdiction pursuant to 28
U.S.C. §§ 1331 and 1367. We have jurisdiction pursuant to
28 U.S.C. § 1291.
10
bargaining power between employers and employees, the
Supreme Court has held that the NLRA preempts state and
local laws that strip employers or employees of certain “self-
help” economic tools like strikes and lockouts. See Lodge 76,
Int’l Ass’n of Machinists & Aerospace Workers v. Wis. Emp’t
Relations Comm’n, 427 U.S. 132, 148-51 (1976). ERISA
preempts “any and all State laws insofar as they . . . relate to
any employee benefit plan”—that is, a plan providing health
insurance, disability benefits apprenticeships, a pension, or
other benefits. See 29 U.S.C. §§ 1002, 1003(a), 1144(a).
And the dormant Commerce Clause precludes states from
enacting “regulatory measures designed to benefit in-state
economic interests by burdening out of state competitors.”
Dep’t of Revenue v. Davis, 553 U.S. 328, 338 (2008) (quoting
New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273-74
(1988)).
Despite their differences, the NLRA and the dormant
Commerce Clause—and, we will assume, for today’s
purpose, ERISA6—share the same threshold requirement
6
The parties assume that the market participant
exception applies in the ERISA context. Other Circuits have
applied the exception in this context, see Johnson v. Rancho
Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1023 (9th Cir.
2010); Cardinal Towing & Auto Repair, Inc. v. City of
Bedford, 180 F.3d 686, 695 (5th Cir. 1999), but we have yet
to do so. We need not decide today whether the market
participant exception limits ERISA preemption, for as we
explain, the City does not act as a market participant in
offering tax abatements. See Keystone Chapter, Associated
Builders & Contractors, Inc. v. Foley, 37 F.3d 945, 955 n.15
(3d Cir. 1994) (declining to decide the “novel” question of
11
before their constraints are triggered: that the allegedly
unlawful act by the state or local government be regulatory in
nature. If a state or local government is acting as a market
participant pursuant to a proprietary interest, it is not so
constrained by these federal laws or by the relevant
preemption doctrines. See generally White v. Mass. Council
of Constr. Emp’rs, Inc., 460 U.S. 204 (1983) (Commerce
Clause); Bldg. & Constr. Trades Council of the Metro. Dist.
v. Associated Builders & Contractors of Mass./R.I., Inc. (Bos.
Harbor), 507 U.S. 218 (1993) (NLRA); Tri-M Grp., LLC v.
Sharp, 638 F.3d 407, 421 & n.23 (3d Cir. 2011) (Commerce
Clause); Amalgamated Transit Union, Div. 819 v. Byrne, 568
F.2d 1025 (3d Cir. 1977) (en banc) (NLRA).
The market participant exception to these doctrines is
rooted in the principle that a government, just like any other
party participating in an economic market, is free to engage in
the efficient procurement and sale of goods and services. See
Chamber of Commerce of U.S. v. Brown, 554 U.S. 60, 70
(2008); see also Bos. Harbor, 507 U.S. at 228-30; Reeves,
Inc. v. Stake, 447 U.S. 429, 437-40 (1980). Thus, when a
government “acts as a ‘market participant with no interest in
setting policy,’ as opposed to a ‘regulator,’ it does not offend”
federal law. Brown, 554 U.S. at 70 (quoting Bos. Harbor,
507 U.S. at 229).
Our Circuit has developed a two-part test for
determining whether a state or locality acts as a market
whether the market participant exception applies to ERISA
preemption because the state was not acting as a market
participant in any event).
12
participant.7 First, we ask whether “the challenged funding
condition”—here, the Ordinance—“serve[s] to advance or
preserve the state’s proprietary interest in a project or
transaction, as an investor, owner, or financier.” Hotel Emps.
& Rest. Emps. Union, Local 57 v. Sage Hosp. Res., LLC, 390
F.3d 206, 216 (Sage) (3d Cir. 2004). Second, we ask whether
“the scope of the funding condition [is] ‘specifically tailored’
to the proprietary interest,” or, put another way, whether the
action is so broad as to be considered, in effect, regulatory.
Id. (quoting Bos. Harbor, 507 U.S. at 232); see also Wis.
Dep’t of Indus., Labor & Human Relations v. Gould Inc., 475
U.S. 282, 291 (1986). Only if both conditions are met is a
government acting as a market participant. Sage, 390 F.3d at
216.8
7
Under our precedent, the jurisprudence defining
market participation in the NLRA and Commerce Clause
contexts is identical. See, e.g., Tri-M Grp., 638 F.3d at 421
(borrowing market participant concepts from the NLRA
context to inform the inquiry in a Commerce Clause case).
While we have not opined on the question and need not do so
today, see supra note 6, other Circuits have concluded that
the same jurisprudence defines “market participation” in the
ERISA context as well, even if their tests differ from ours.
See, e.g., Johnson, 623 F.3d at 1023; Cardinal Towing, 180
F.3d at 695.
8
In contrast, the Seventh Circuit has held that a
governmental action need not be either proprietary or
regulatory and that the NLRA forbids only actions that are
regulatory; in other words, even if a government is not acting
as a proprietor, the action might fall outside of the ambit of
13
We resolve this case at the first step of the Sage test,
for we conclude that the City lacks a proprietary interest in
Tax Abated Projects. The Supreme Court has recognized a
government’s proprietary interest in a project when it “owns
and manages property” subject to the project or it hires, pays,
and directs contractors to complete the project, see Bos.
Harbor, 507 U.S. at 221, 227; when it provides funding for
the project, see, e.g., United Bldg. & Constr. Trades Council
of Camden Cty. v. City of Camden, 465 U.S. 208, 221 (1984);
White, 460 U.S. at 214-15; Sage, 390 F.3d at 216-17; or when
it purchases or sells goods or services, see Camps
Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564,
592-93 (1997). But this case fits none of these categories.
Instead, Appellees argue, and the District Court agreed, that
the City has a proprietary interest in enforcing the Ordinance
because “the tax abatement functions as a subsidy that
finances or invests in each project.” Associated Builders,
2015 WL 4640600, at *5.
the NLRA (and, presumably, that of ERISA and the dormant
Commerce Clause). See N. Ill. Chapter of Associated
Builders & Contractors, Inc. v. Lavin, 431 F.3d 1004 (7th
Cir. 2005). Taking yet a different tack, the Ninth Circuit
holds that a government acts as a market participant when it
acts with a proprietary interest or when its act is not narrowly
tailored—that is, that it meets either prong of our Sage test.
See Johnson, 623 F.3d at 1024. These cases have no bearing
on our analysis, for we are bound by our own precedent in
Sage, which provides that a government can act either in a
regulatory capacity or as a market participant and that it acts
as a market participant only when its actions are specifically
tailored to a proprietary interest. 390 F.3d at 216.
14
Appellees’ argument, however, has been rejected
outright by the Supreme Court. In Camps
Newfound/Owatonna, Inc. v. Town of Harrison, the Supreme
Court confronted the question of whether the dormant
Commerce Clause was violated by a Maine statute that
provided “general exemption from real estate and personal
property taxes for ‘benevolent and charitable institutions
incorporated’ in the State,” but provided a more limited or no
tax benefit to charities that principally benefitted residents of
other states. Camps Newfound, 520 U.S. at 568 (quoting Me.
Rev. Stat. Ann. tit. 36, § 652(1)(A)(1) (Supp. 1996)). The
Court held that Maine was not acting as a market participant
when it gave tax breaks to charities, rejecting the argument
that the tax exemption “should be viewed as . . . a
governmental ‘purchase’ of charitable services” that gave the
State a proprietary interest in charities receiving the
exemption. Id. at 588-89. Although the Court observed that
a tax exemption may have “the purpose and effect of
subsidizing a particular industry,” it concluded that an
exemption is not the “purchase” or “sale” of goods and
services, but is instead the “assessment and computation of
taxes—a primeval government activity.” Id. at 593 (quoting
New Energy Co., 486 U.S. at 277). Therefore, the Court held,
“[a] tax exemption is not the sort of direct state involvement
in the market that falls within the market-participation
doctrine.” Id.
Although, oddly, cited by the parties in the District
Court proceedings but not by the District Court itself, Camps
Newfound resolves this case. Just as Maine did not purchase
services from the relevant charities or sell those services
itself, Jersey City here does not purchase or otherwise fund
the services of private developers or contractors who are
15
constructing Tax Abated Projects9 or the goods used in those
projects; nor does it sell those services or goods or invest,
own, or finance the projects. See supra note 2. Instead, the
City simply reduces the developers’ tax burden for a period of
time—an endeavor Camps Newfound makes crystal clear is
not “direct state involvement in the market,” 520 U.S. at 593,
but rather the “assessment and computation of taxes—a
primeval government activity,” id. (quoting New Energy Co.,
486 U.S. at 277). The exemptions thus do not give the City a
proprietary interest in Tax Abated Projects, and we need not
reach step two of the Sage test to conclude that the City is not
acting as a market participant when it enforces the Ordinance.
In reaching a contrary conclusion, this District Court
relied on Regan v. Taxation With Representation of
Washington, 461 U.S. 540 (1983). Regan, however, dealt
with a different issue entirely: whether it was a violation of
the First Amendment for Congress to deny lobbying
organizations tax-exempt status under 26 U.S.C. § 501(c)(3).
In concluding that it was not, the Supreme Court described
tax exemptions as “a form of subsidy” with “much the same
effect as a cash grant to the organization of the amount of tax
it would have to pay on its income,” Regan, 461 U.S. at 544,
9
Appellants challenge the legality of PLAs as they
relate to Tax Abated Projects, not Public Construction
Projects. Therefore, we do not decide whether the City is
acting as a market participant with respect to the latter set of
projects. Cf. Mich. Bldg. & Constr. Trades Council v.
Snyder, 729 F.3d 572, 577-78 (6th Cir. 2013) (holding that
the state acted as a market participant when it passed a law
that forbade “governmental units from entering into PLAs”
and that had no effect on private projects).
16
but it nowhere suggested that a government somehow obtains
a proprietary interest in a project that receives an exemption
or that its holding had any bearing on the government’s status
as a market participant for purposes of the NLRA, ERISA, or
the dormant Commerce Clause. And if there were any
ambiguity on that score, it was surely extinguished by Camps
Newfound fourteen years later, which squarely addressed
whether a tax exemption is functionally equivalent to direct
funding for purposes of the market participant exception and
held that it was not. Indeed, in holding that a tax exemption
does not confer upon a government a proprietary interest, the
Court expressly rejected the notion that Regan’s equation of
tax exemptions to subsidies controls the dormant Commerce
Clause analysis. Camps Newfound, 520 U.S. at 589 n.22.
Perhaps anticipating that we would find Camps
Newfound more relevant than Regan, Appellees urge us to
disregard Camps Newfound, asserting that it was abrogated in
relevant part by Department of Revenue v. Davis. Not so. In
Davis, a majority of the Supreme Court held that Kentucky’s
scheme of offering tax exemptions on bonds issued by
Kentucky but not on out-of-state bonds did not violate the
dormant Commerce Clause, 553 U.S. at 356-57, and a
plurality of the Court would have found the differential tax
treatment for in-state bonds to be market participation, id. at
343-48. The plurality reached this conclusion, however,
“only because Kentucky is also a bond issuer” “has entered
the market for debt securities.” Id. at 344. That is, Kentucky
was a market participant not because it provided tax
exemptions, but instead because it sold the very bonds for
which it gave differential tax treatment, and the differential
tax treatment thus facilitated Kentucky’s own participation in
the market. See id. at 348 n.17. Not so here, where Jersey
17
City is not selling or providing any goods or services with
respect to Tax Abated Projects, nor acting as an investor,
owner, or financier with respect to those projects.
We also reject Appellees’ rather tenuous argument that
the City has a proprietary interest because the Tax Abated
Projects will improve the City’s economy, which in turn will
lead to future tax revenues. Tax abatements designed to
improve future revenue streams are not equivalent to the
purchase or sale of goods or services and do not transform the
City into an investor, owner, or financier of the Tax Abated
Projects. See Sage, 390 F.3d at 216 (holding that a “projected
stream of increased tax revenue” is not a proprietary interest
“because it is not comparable to the financial interest that an
ordinary market participant has in a project”). Likewise, the
fact that the City marks areas for redevelopment and then
approves the projects receiving a tax exemption to ensure that
they comport with the City’s redevelopment plan, see N.J.
Stat. Ann. §§ 40A:20-3, -8, 40A:21-4; see also Mun. Code
§ 304-6, does not confer a proprietary interest. In Sage, for
example, where Pittsburgh’s redevelopment agency approved
the construction of a hotel in an effort to redevelop a district
in that city, we held that Pittsburgh had a proprietary interest
in the project only because the city, through its redevelopment
authority, provided bond financing to the hotel and not
because it had a general interest in economic redevelopment.
390 F.3d at 216-17. In sum, important and laudable as the
City’s interest is in redevelopment, that interest does not by
itself confer upon the City status as a market participant.
IV.
Our holding is as narrow as our inquiry. We offer no
comment on, much less do we decide, whether the challenged
18
Ordinance is in fact preempted by the NLRA or ERISA, or
whether it runs afoul of the dormant Commerce Clause. We
hold only that the District Court erred in concluding that the
City acts as a market participant when it enforces the
Ordinance with respect to Tax Abated Projects. We therefore
reverse and remand to the District Court for further
proceedings consistent with this opinion.
19