280 ERIE STREET, LLC VS. CITY OF JERSEY CITY 317 JERSEY AVENUE, LLC VS. CITY OF JERSEY CITY (L-4619-15 AND L-0843-16, HUDSON COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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-4421-15T2
A-0195-16T2
280 ERIE STREET, LLC;
212 MARIN BOULEVARD, LLC;
247 MANILA AVENUE, LLC;
317 JERSEY AVENUE, LLC;
354 COLE STREET, LLC;
389 MONMOUTH STREET, LLC;
415 BRUNSWICK STREET, LLC;
AND 446 NEWARK AVENUE, LLC,
Plaintiffs-Appellants,
v.
CITY OF JERSEY CITY,
Defendant-Respondent.
__________________________________
317 JERSEY AVENUE, LLC,
212 MARIN BOULEVARD, LLC;
247 MANILA AVENUE, LLC;
280 ERIE STREET, LLC;
354 COLE STREET, LLC;
389 MONMOUTH STREET, LLC;
415 BRUNSWICK STREET, LLC;
AND 446 NEWARK AVENUE, LLC,
Plaintiffs-Appellants,
v.
CITY OF JERSEY CITY,
Defendant-Respondent.
___________________________________
Argued April 16, 2018 – Decided July 24, 2018
Before Judges Messano, O'Connor, and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket Nos. L-
4619-15 and L-0843-16.
Eric D. McCullough argued the cause for
appellants (Waters, McPherson, McNeill, PC,
attorneys; Eric D. McCullough and Daniel E.
Horgan, of counsel; Eric D. McCullough, on the
briefs.
Jason M. Hyndman argued the cause for
respondent (John J. Curley, LLC, attorneys;
John J. Curley, of counsel; Jason M. Hyndman,
on the brief).
PER CURIAM
We consolidated these back-to-back appeals to issue a single
opinion. Plaintiffs are limited liability companies that own
properties in the City of Jersey City (the City) known locally as
the Embankment. In A-4421-15, plaintiffs appeal from the Law
Division's May 5, 2016 order that entered judgment in favor of the
City and dismissed plaintiffs' complaint in lieu of prerogative
writs challenging the City's adoption of Ordinance 15.125, which
authorized the City to issue bonds to fund the purchase of the
Embankment. In A-0195-16, plaintiffs' appeal from the Law
Division's August 17, 2016 order that entered judgment in favor
of the City and dismissed plaintiffs' complaint in lieu of
prerogative writs challenging passage of Ordinance 15.186. That
2 A-4421-15T2
authorized the City to submit an Offer of Financial Assistance
(OFA) to the Surface Transportation Board (STB) pursuant to 49
U.S.C. § 10904, to obtain STB's approval of the purchase.
I.
Background
The Embankment is comprised of two at-grade lots and six lots
improved with stone, earth-filled railroad embankment walls.
Plaintiffs purchased the Embankment, part of the Harsimus Branch,
a railroad line used to transport freight, from Consolidated Rail
Corporation (Conrail) in 2005.1 The City challenged the sale,
arguing that Conrail failed to apply to the STB for permission to
abandon the Harsimus Branch as required by the Interstate Commerce
Commission Termination Act (ICCTA), 49 U.S.C. §§ 10101 to 11908,
specifically 49 U.S.C. § 10903, before demolishing the railroad
infrastructure and selling the land. This led to protracted
litigation before the STB and in the federal courts, see City of
Jersey City v. Consolidated Rail Corp., 968 F. Supp. 2d 302 (D.D.C.
2013), aff'd., 2014 U.S. App. LEXIS 3067* (D.C. Cir. 2014),
resulting in a ruling that the Harsimus Branch was "subject to the
STB's abandonment jurisdiction." Id. at 308.
1
It is undisputed that sometime in the 1990s, Conrail terminated
all service on the Harsimus Branch and removed all track, signals
and bridges that connected the Embankment to the rail network west
of it.
3 A-4421-15T2
In 2009, while the above-described litigation was pending,
Conrail began abandonment proceedings before the STB. 49 U.S.C.
§ 10904(c) provides that after a rail carrier files for permission
to abandon a rail line, any person may offer to purchase the line.
If an OFA is submitted by a "financially responsible person" as
determined by the STB in accordance with 49 C.F.R. § 1152.27,
abandonment is postponed until either the carrier and the offeror
reach an agreement for the sale, or the STB sets terms and
conditions. 49 U.S.C. § 10904(d)(2). Thereafter, the purchaser
may not discontinue service on the rail line for a period of two
years. 49 U.S.C. § 10904(f)(4)(A). In March 2009, the City
submitted notice of its intention to file an OFA and purchase the
Harsimus Branch.
The City's Efforts to Acquire the Embankment
In July 2010, the City adopted Ordinance 10.085 authorizing
bonding of approximately $7.7 million to fund "the
acquisition . . . of real property and the improvements thereon
known as the Harsimus Embankment Park and Greenway Project,
including, but not limited to, [the Embankment]." The ordinance
stated that "the estimated cost of the improvement or purpose" was
equal to the amount of the appropriation, and that the period of
usefulness for the proposed purposes was forty years. During the
litigation in the Law Division, the City's special railroad
4 A-4421-15T2
counsel, Henry M. Montagne, certified that the City enacted
Ordinance 10.085 while it was engaged in settlement discussions
with plaintiffs to acquire the Embankment in a consensual sale,
and when this failed, the City decided to use the OFA process to
acquire the properties.
In September 2014, the City adopted Ordinance 14.103, which
ostensibly approved the submission of an OFA and authorized the
Corporation Counsel and Business Administrator to take certain
steps in contemplation of purchasing the Embankment. Plaintiffs
filed a complaint in lieu of prerogative writs, challenging the
ordinance and asserting the City Council's closed-door September
8, 2014 meeting at which members discussed the ordinance with
Montagne violated the Open Public Meetings Act (OPMA), N.J.S.A.
10:4-6 to -21. Ultimately, the Law Division judge, Christine M.
Vanek, concluded the City had violated the OPMA; she invalidated
Ordinance 14.103 and ordered the City to conduct de novo
proceedings "such that all non-privileged deliberations regarding
the ordinance are conducted before the public."
While the challenge to Ordinance 14.103 was pending, the City
adopted Ordinance 15.125, which expressly authorized bonds or bond
anticipation notes for $7.7 million. One expressed reason for the
ordinance was "to change the purpose of Ordinance 10.085." To
that end, Section 3 of Ordinance 15.125 stated that
5 A-4421-15T2
the purpose for which the bonds are to be
issued is (1) the acquisition . . . of real
property and the improvements thereon known
as the Harsimus Embankment Park and Greenway
Project, including, but not limited to, [the
Embankment], (2) the acquisition . . . of such
additional property as may be necessary to
link the properties described in clause (1)
above to the national freight rail
network . . . (3) the rehabilitation,
replacement and/or reconstruction of all or a
portion of the rail facilities located or
previously located on the properties . . . and
(4) the establishment of open space for active
and/or passive recreation by the
public . . . .
Section 3 further stated that the estimated cost of the listed
purposes was equal to the amount of the bond appropriation, and
Section 6 stated that the period of usefulness for these purposes
was thirty years, "representing a reduction from the [forty] years
stated in . . . Prior Ordinance [10.085]."
Plaintiffs filed a complaint in lieu of prerogative writs
challenging Ordinance 15.125. They primarily contended the
ordinance violated the Local Bond Law (LBL), N.J.S.A. 40A:2-1 to
-64, and the City failed to seek guidance from the Division of
Local Government Services (LGS) before setting the period of useful
life for the bonds' proposed purposes. Following oral argument,
on May 5, 2016, Judge Vanek issued a comprehensive written decision
upholding Ordinance 15.125, finding in sum that plaintiffs failed
to prove the City's actions were arbitrary, capricious, or
6 A-4421-15T2
unreasonable. Plaintiffs filed their notice of appeal in A-4421-
15.
In the interim, on December 16, 2015, in response to the
judge's invalidation of Ordinance 14.103, the City introduced
Ordinance 15.186, which was largely identical to the earlier
ordinance and again authorized submission of an OFA to the STB.
The City attached to the ordinance a redacted transcript from the
city council's September 8, 2014 closed-door hearing, which was
released by the judge to plaintiffs during the earlier litigation.
After a public meeting on January 13, 2016, the City adopted
Ordinance 15.186.
Plaintiffs filed suit, arguing the process again violated the
OPMA, the ordinance was legally flawed and the City's actions were
arbitrary, capricious and unreasonable. After considering oral
argument, on August 17, 2016, Judge Vanek upheld Ordinance 15.186,
concluding the City did not violate the OPMA, the STB's exclusive
jurisdiction pre-empted plaintiffs' arguments regarding the
validity of the proposed OFA and the City's actions were not
otherwise arbitrary, capricious or unreasonable. Plaintiffs filed
their notice of appeal in A-0195-16.
7 A-4421-15T2
II.
(As to A-4421-15)
Plaintiffs' challenge to Ordinance 15.125, which authorized
the issuance of bonds for, among other things, the purchase of the
Embankment, reiterates several arguments made before the trial
judge. Specifically, plaintiffs argue the ordinance violated the
LBL by failing to include separate cost estimates for each of its
four purposes, the ordinance's stated period of usefulness was in
violation of the LBL, and the City's failure to seek guidance from
LGS before adopting that period was fatal. We disagree and affirm.
Our Constitution requires any law concerning the powers of
municipal corporations be liberally construed in their favor so
as to include those powers expressly conferred by the Legislature
or otherwise fairly implied. D.L. Real Estate Holdings, LLC v.
Point Pleasant Beach Planning Bd., 176 N.J. 126, 132 (2003) (citing
N.J. Const. art. IV, § 7, ¶ 11). Thus, "[m]unicipal ordinances,
like statutes, carry a presumption of validity." Newfield Fire
Co. No. 1 v. Borough of Newfield, 439 N.J. Super. 202, 209 (App.
Div. 2015) (quoting Hutton Park Gardens v. Town Council of W.
Orange, 68 N.J. 543, 564 (1975)).
"Accordingly, a party challenging a municipal ordinance has
a heavy burden[,]" ibid., and "an ordinance may be overturned only
if it is arbitrary and unreasonable." Hudson County v. Jersey
8 A-4421-15T2
City, 153 N.J. 254, 266 (1998). As Justice Pashman explained more
than forty years ago,
Legislative bodies are presumed to act on the
basis of adequate factual support and, absent
a sufficient showing to the contrary, it will
be assumed that their enactments rest upon
some rational basis within their knowledge and
experience. This presumption can be overcome
only by proofs that preclude the possibility
that there could have been any set of facts
known to the legislative body or which could
reasonably be assumed to have been known which
would rationally support a conclusion that the
enactment is in the public interest.
[Hutton Park Gardens, 68 N.J. at 564-65(citations omitted).]
"The job of a reviewing court is not to weigh the evidence for or
against an enactment, or to evaluate the wisdom of the policy
choice made." New Jersey Shore Builders Ass'n v. Twp. of Jackson,
199 N.J. 38, 55-56 (2009) (citing Hutton Park Gardens, 68 N.J. at
565).
Municipalities, however, may not wield their powers "in
contravention of the overarching statutory grant of authority or
conflict otherwise with an express statutory limitation or
prohibition." Varsolona v. Breen Capital Servs. Corp., 180 N.J.
605, 625 (2004) (citations omitted). They may not enact an
ordinance that violates the federal or state constitution. Rumson
Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 351
(2003) (citation omitted). We review such legal issues de novo.
9 A-4421-15T2
See, e.g., 388 Route 22 Readington Realty Holdings, LLC v. Twp.
of Readington, 221 N.J. 318, 338 (2015) ("In construing the meaning
of a statute, an ordinance, or our case law, our review is de
novo.").
In her written decision, Judge Vanek found that the
ordinance's language and other evidence in the record
"acknowledged . . . there [were] several complimentary components
of an overarching goal with respect to the subject property." She
further found that the ordinance "specifically state[d] that the
purpose of the funding [was] the acquisition of the Embankment
property," and concluded the purchase of other properties to link
to a rail network, the rehabilitation of the properties to support
rail service, and the establishment of open space were all tied
to that acquisition.
The judge reasoned that "the greater level of specificity
provided in Ordinance 15.125 . . . [did] not negate . . . the
ordinance has a single purpose" and render it invalid for failing
to set multiple cost estimates. She also found there were
sufficient facts before the city council to support a cost estimate
of $7.7 million, including the Council's deliberations on the
prior Ordinance 10.085 and advice from Montagne and the city's
bond counsel.
10 A-4421-15T2
Plaintiffs first argue the LBL requires every bond ordinance
to "estimate the costs of each of" its purposes and "disclose the
same to the public." They argue the evidence fails to support the
trial judge's conclusion that there was a single overriding
purpose.
The LBL provides:
A bond ordinance shall contain in substance
the following:
a.(1) an authorization for the
issuance of obligations, stating in
brief and general terms sufficient
for reasonable identification the
purpose or purposes for which the
obligations are to be issued, a
statement of the estimated maximum
amount of bonds or notes to be
issued, and the estimated cost of
such purpose or purposes, but
related improvements or properties
may be treated as one improvement or
property . . . .
[N.J.S.A. 40A:2-12(a)(1) (emphasis
added).]
The statute only mandates that "certain required items of
information must first be set forth 'in brief and general terms'
in the bond ordinance. No other matters are required to be set
forth therein." Dolan v. Tenafly, 75 N.J. 163, 170 (1977)
(emphasis in original) (quoting N.J.S.A. 40A:2-12); see also
Matlack v. Bd. of Chosen Freeholders, 191 N.J. Super. 236, 251-
252 (Law Div. 1982) (citing Dolan, 75 N.J. at 171-72) ("In advising
11 A-4421-15T2
the public of their purpose, bond ordinances need not particularize
every ramification, product or denouement in implementing that
purpose.").
Plaintiffs argue there was no "factual support" connecting
the stated purposes of creating "open space" on the Embankment
with construction of railroad improvements, or that the City ever
intends to continue rail service, as required by the STB, on the
Embankment. However, the record amply supports the judge's
conclusions that Ordinance 15.125 expressed the City's singular
purpose for issuing the bonds was to acquire the Embankment for
the various uses listed. The brief history we described above
makes that abundantly clear, and plaintiffs' skepticism about the
City's intent to utilize the Embankment for rail service does not,
for our purposes of review, make the adoption of Ordinance 15.125
arbitrary, capricious or unreasonable.
Plaintiffs argue with no legal support that we must set aside
Ordinance 15.125 because the City was required to supply cost
estimates for all four "purposes" set out in the ordinance.
However, plaintiffs' reliance, such as it is, on Judge Conford's
dissenting opinion in Dolan misses the point of the majority's
holding.
In Dolan, 75 N.J. at 167, the municipality approved a bond
ordinance to purchase open space. Subsequent events resulted in
12 A-4421-15T2
the municipality passing a resolution that approved the purchase
of significantly less acreage, albeit at a slightly reduced cost,
from that described in the ordinance. Id. at 167-68. Plaintiffs
challenged the resolution, arguing it violated the LBL because the
municipality could not alter by resolution the purpose for which
the bonds were to be issued, the maximum amount of the bonds or
the estimated costs of the project. Id. at 169-71.
The Court rejected these claims, noting in part:
This argument fails to recognize the need for
sufficient flexibility in the fiscal mechanism
to permit adaptation to conditions and
circumstances discovered during the execution
of a project. It would seriously hamper the
effectuation of substantial public
improvements were it necessary to set forth
in specific detail every element of such a
proposal and then require an amending
ordinance each time a change became necessary
or desirable.
[Id. at 172.]
Where there are "good faith proceedings" in adopting an ordinance,
the LBL is not intended "to demand rigid adherence to initial
calculations which are no more than preliminary estimates . . . ."
Ibid. Plaintiffs' argument here is unavailing.
Plaintiffs next contend we must set aside Ordinance 15.125
because it does not include periods of usefulness for each
component, the City could not supply an average period of
usefulness without pricing each component, the record is devoid
13 A-4421-15T2
of any facts supporting the estimated period of usefulness, and
the City was required to seek the approval of LGS before setting
the useful life period at thirty years. Judge Vanek concluded
there was one overriding purpose for the ordinance, and, therefore,
the City did not need to include multiple estimated periods of
usefulness. She also determined the LBL did not require that the
ordinance describe the methodology used to calculate the period
of usefulness. We agree with this reasoning.
N.J.S.A. 40A:2-12(b) states that a bond ordinance must
contain "a determination of the period of usefulness of the purpose
within the limitations of this chapter or, if issued for several
purposes, a determination of the average period of usefulness,
taking into consideration the respective amounts of obligations
authorized for the said several purposes." In other words, nothing
in the statute's plain language mandates an ordinance include a
description of how a municipality determined the period of
usefulness. Clearly, in reaching its decision, a municipality
cannot act in an arbitrary, capricious or unreasonable fashion.
However, Judge Vanek noted the City had reasonably relied upon
"the useful life categories listed in N.J.S.A. 40A:2-22" in setting
the thirty year period. We agree.
N.J.S.A. 40A:2-22 provides that a municipality shall
"determine the period of usefulness of any purpose according to
14 A-4421-15T2
its reasonable life computed from the date of the bonds." It
provides different categories of purposes and the maximum periods
of usefulness that may be assigned to each. Ibid. N.J.S.A. 40A:2-
22(a)(1) sets a maximum period of usefulness of thirty years for
"[b]ridges, including retaining walls and approaches, or permanent
structures of brick, stone, concrete or metal, or similar durable
construction." Subsection (d) of N.J.S.A. 40A:2-22 is entitled
"Real property," and sets a forty-year period of usefulness for
"[a]cquisition for any public purpose of lands . . . ." N.J.S.A.
40A:2-22(d)(1). The creation of a park, trail, or other open
space appears to fall squarely under this provision.
The purchase of land for railway improvements is not
specifically covered by the statute, although the City's
acquisition of the Embankment is "for a[] public purpose," N.J.S.A.
40A:2-22(d)(1), and, in this unique case, includes acquiring
"permanent structures . . . of durable construction," N.J.S.A.
40A:2-22(a)(1). In short, nothing in the record supports the
assertion that the City violated the LBL by setting a thirty-year
period of usefulness. Moreover, the change from the forty-year
period in Ordinance 10.085, to the thirty-year period in Ordinance
15.125, recognized one of the intended uses for the Embankment now
included rail-related construction.
15 A-4421-15T2
Lastly, plaintiffs' contention that the City was required to
seek the advice of LGS before setting a period of usefulness in
the ordinance lacks sufficient merit to warrant extensive
discussion. N.J.S.A. 40A:2-22.1 provides: "A [municipality] may
request . . . that the Director of [LGS] determine a period of
usefulness for any capital improvement or property not included
in N.J.S.A. 40A:2-22, provided that the maximum period of
usefulness so determined shall not exceed 15 years." The judge
concluded the statue's use of the term "may" indicated it was
permissive and did not compel the City to request the opinion of
LGS. See Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325
(2000). We agree.
We affirm in A-4421-15.
III.
(As to A-0195-15)
Plaintiffs' challenge to Ordinance 15.186 is multi-faceted.
They attack the ordinance by arguing it authorized the filing of
a legally deficient OFA, because there was no evidence supporting
a "need for rail service on the Embankment" and the City's true
"improper purpose" was to acquire plaintiffs' properties for other
"non-rail purposes." Plaintiffs also argue the ordinance
improperly delegated "legislative judgment" to non-elected
officials and New Jersey law prohibits a municipality from filing
16 A-4421-15T2
an OFA. Lastly, plaintiffs contend the City failed to cure its
prior violation of the OPMA when it enacted Ordinance 15.186.
Judge Vanek concluded the plain language of 49 U.S.C. § 10501pre-empted her consideration of plaintiffs' arguments regarding
the legal sufficiency of the City's OFA and plaintiff's suggestion
that the STB would otherwise reject the OFA. She found that §
10501 granted the STB exclusive jurisdiction over the OFA process,
holding:
The court is without jurisdiction to conclude
that the OFA, which has not even been filed
at this juncture, would in fact violate
applicable laws. It is within the exclusive
province of the STB to determine whether the
OFA that is ultimately submitted is proper
under its applicable standard of review.
We agree with her analysis.
49 U.S.C. § 10501(b)(2) states that the STB's jurisdiction
over "the construction, acquisition, operation, abandonment, or
discontinuance of spur, industrial, team, switching, or side
tracks, or facilities . . . is exclusive." Further, except as
otherwise provided in the ICCTA, all statutory remedies "with
respect to regulation of rail transportation" are exclusive. Ibid.In Chicago & North Western Transporation Company v. Kalo
Brick & Tire Company, 450 U.S. 311, 320 (1981), the United States
Supreme Court found the STB's predecessor agency, the Interstate
Commerce Commission, had "exclusive" and "plenary" authority "to
17 A-4421-15T2
regulate abandonments." The Court further held the breadth of the
ICC's statutory discretion in abandonment matters "suggest[ed] a
congressional intent to limit judicial interference with the
agency's work." Id. at 321.
The Court addressed a state court's decision upholding a
state statute's damages remedy for a disappointed shipper after a
rail carrier abandoned a line. Id. at 324-32. The Court found
the state was preempted from affording such a remedy, because
"Congress granted the exclusive discretion" "to the [ICC]" to
decide whether an abandonment was proper. Id. at 326. Thus,
"there [was] no further role that [a] state court could play" by
awarding damages related to an abandonment, since this would be
contrary to Congress' grant of exclusive authority to the ICC.
Ibid.In Borough of Columbia v. Surface Transportation Board, 342
F.3d 222, 231-32 (3rd Cir. 2003), the Third Circuit made clear
that a reviewing court could not compel the STB to require a
certain level of proof regarding the likelihood of continued rail
service before the agency accepted an OFA. The court stated such
review "would . . . ignore that Congress has tasked that agency,
not [a] court, with factfinding responsibilities" in OFA
proceedings. Id. at 232. The court further found that
"[e]valuating and comparing minutiae in the evidence" for and
18 A-4421-15T2
against the validity of a given OFA "would be neither a desirable
nor a practicable level of review for [a] court to undertake --
especially when it is the STB's 'exclusive province to draw
legitimate inferences from the evidence.'" Ibid. (quoting
Redmond-Issaquah R.R. Preservation Ass'n (RIRPA) v. Surface
Transp. Bd., 223 F.3d 1057, 1064 (9th Cir. 2000)).
Plaintiffs' reliance on Ridgefield Park v. New York
Susquehanna & W. Ry. Corp., 163 N.J. 446 (2000), and Norfolk S.
Ry. Co. v. Intermodal Props., LLC, 424 N.J. Super. 106 (App. Div.
2012), is misplaced. Ridgefield Park involved the scope of
municipal regulation of railroad properties, and whether federal
law preempted that particular action. Ridgefield Park, 163 N.J.
at 460-62 (holding municipality could enforce safety codes on
railroad property, but not compel site plan approval). In Norfolk
Southern, 424 N.J. Super. at 126-27, citing the STB's precedent,
we concluded that the railroad's exercise of eminent domain was
subject to state law and not otherwise pre-empted by federal law.
Here, the issue was whether a state court should consider the
merits of an OFA in deciding whether a municipality acted
arbitrarily, capriciously or unreasonably in enacting an ordinance
permitting the submission of an OFA. Congress has granted the STB
exclusive jurisdiction over the merits of any OFA. More
importantly, the trial judge never concluded she lacked
19 A-4421-15T2
jurisdiction to consider plaintiffs' challenge to Ordinance
15.186. She only determined federal law pre-empted her
consideration of those arguments that challenged the potential
OFA's conformity with federal requirements or STB's potential
approval.
It is clear that the STB may ultimately deny the City's OFA
because, as plaintiffs contend, the municipality has no intention
to continue rail service on the Embankment. See, e.g., RIRPA, 223
F.3d at 1062 (noting that the STB has been "consistent in
continuing to require" that an OFA be for continued rail service
on a line that otherwise would be abandoned).2 However, Judge
Vanek correctly concluded the decision was the STB's to make.
2
After the briefs were filed, plaintiffs brought to our attention
the STB's June 29, 2017, decision concerning rulemaking to modify
agency procedures pertaining to OFAs. Therein, the STB stated
that its existing precedents require that an OFA "be for continued
rail service." STB Docket No. EP 729, pp. 15-16. We acknowledge
that case law and agency guidance require an OFA offeror to
demonstrate bona fide intentions to continue rail service on an
abandoned line. Whether the City can actually carry that burden,
particularly in light of its intention to use at least some of the
Embankment as open space, is for the STB to decide.
Additionally, plaintiffs' argument that State law prohibits
the City from using an OFA to purchase abandoned rail lines lacks
sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
N.J.S.A. 40:9-2.1 provides a municipality "may acquire, by
purchase or lease, maintain, improve, equip and operate any
existing public transportation passenger or freight rail line,
including its appurtenant lands and ancillary structures and
facilities."
20 A-4421-15T2
Plaintiffs also urge us to invalidate Ordinance 15.186
because it improperly delegated broad authority to the City's
Corporation Counsel and Business Administrator to prepare and file
the OFA and purchase plaintiffs' properties. A legislative body
like the city council "may delegate its authority as long as it
provides standards to guide the discretionary exercise of the
delegated power." Worthington v. Fauver, 88 N.J. 183, 208 (1982).
If an ordinance making such a delegation "is totally devoid of
standards to guide and control administrative officials," it
"cannot stand." Flama Constr. Corp. v. Franklin, 201 N.J. Super.
498, 503 (App. Div. 1985). However, standards in an ordinance
governing the exercise of delegated authority may be either express
or implied from the ordinance as a whole. Ibid. Standards may
also be "general, as long as they are as precise and revealing as
the subject reasonably permits," Worthington, 88 N.J. at 209, and
"as long as they are sufficiently specific to guide" those to whom
the delegation is made "in the exercise of [their] discretion."
In re Egg Harbor Assocs., 94 N.J. 358, 372 (1983).
Judge Vanek rejected plaintiffs' contention that Ordinance
15.186 was an unlawful delegation of authority to the Corporation
Counsel and Business Administrator. She noted the ordinance
provided sufficient guidance because it required any OFA actually
submitted by the City comply with applicable law. The judge
21 A-4421-15T2
additionally observed that the ordinance required further council
approval if the purchase price for the Embankment exceeded $5.7
million. In short, the ordinance provided sufficient guidance for
the City's executive officers to consummate the council's
delegated functions. Again, we agree with the trial judge's
reasoning and reject plaintiffs' argument.
Plaintiffs further argue that the City failed to comply with
the OPMA because the council did not adopt Ordinance 15.186 in
true de novo proceedings. Plaintiffs also contend that the City
waived any attorney-client privilege by attaching a redacted
transcript of the September 8, 2014 meeting to the ordinance, and
the judge erred in finding the City complied with OPMA without
compelling the City to produce an unredacted copy for the public.
In her written decision, Judge Vanek concluded the City did
not need to repeat anew all that was said at the September 8, 2014
meeting, which violated the OPMA. The Corporation Counsel had
appraised the council members of the City's reliance upon what
took place at that meeting, and the council and members of the
public were given the opportunity to review what had transpired
by reading the transcript. The judge's opinion cited to the
vigorous debate among council members, and between the council and
the public, at the January 16, 2016 meeting. She reasoned the
City had adequately considered de novo the ordinance, concluding
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the proceedings "satisfie[d] the purpose and spirit of [the] OPMA
of transparency in government." The judge rejected plaintiffs'
claims regarding the redacted transcript, concluding the court had
ruled in prior litigation what portions of the transcript were
privileged and subject to redaction, the assertion of privilege
did not violate the OPMA and the City had not waived the privilege.
We again agree.
"[The OPMA] makes explicit the legislative intent to ensure
the public's right to be present at public meetings and to witness
government in action." Kean Federation of Teachers v. Morell, ___
N.J. ___, ___ (2018) (slip op. at 3). "That legislative intent
is balanced by an express recognition that public bodies must be
allowed to exercise discretion in determining how to perform their
tasks . . . ." Ibid. (citations omitted).
Actions taken by a public body at a meeting that does not
conform to the OPMA's requirements are voidable. N.J.S.A. 10:4-
15(a). However, a public body "may take corrective or remedial
action by acting de novo at a public meeting held in conformity
with" the statute. Ibid. In the context of the OPMA, the phrase
"de novo" means "to consider anew, or afresh, for a second time."
Houman v. Pompton Lakes, 155 N.J. Super. 129, 164 (Law Div. 1977).
By using this phrase, the Legislature intended "that a public
body . . . must reconsider its action completely anew, for a second
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time, in full compliance with all the requirements" of the OPMA.
Ibid.N.J.S.A. 10:4-15(a) "contemplate[s] maximum flexibility in
rectifying governmental action which falls short of the standards
of openness prescribed for the conduct of official business."
Polillo v. Deane, 74 N.J. 562, 579 (1977); see Precision Industrial
Design Co. v. Beckwith, 185 N.J. Super. 9, 19 (App. Div. 1982)
(holding that Polillo requires "the nature, quality and effect of
the noncompliance with the [OPMA] be considered in the judicial
fashioning of an appropriate remedy"). Notably, in Polillo, 74
N.J. at 580, the Court specifically approved of the public entity's
discretionary authority to utilize testimony and evidence received
at prior hearings that violated the OPMA.
We also agree with Judge Vanek's conclusion that the City's
decision to utilize the redacted transcript of the September 8,
2014 meeting did not waive its assertion of attorney-client
privilege. As she noted, the trial court had already acknowledged
that some portions of the transcript were privileged. The OPMA
excepts "matters falling within the attorney-client privilege"
from disclosure at a public meeting. N.J.S.A. 10:4-12(b)(7).
To the extent we otherwise have not specifically addressed
plaintiffs' arguments, they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
24 A-4421-15T2
Affirmed in A-0195-16.
25 A-4421-15T2