Opinion
DOCKET NO. A-6386-11T3
07-26-2013
RICHARD GRABOWSKY, Plaintiff-Appellant, v. TOWNSHIP OF MONTCLAIR, PLANNING BOARD OF THE TOWNSHIP OF MONTCLAIR, FOUNTAIN SQUARE DEVELOPMENT, LLC, and MONTCLAIR KENSINGTON URBAN RENEWAL, LLC, Defendants-Respondents.
Jonathan T. Guldin argued the cause for appellant (J. Clark & Associates, LLC, attorneys; Mr. Guldin, of counsel and on the briefs). Arthur M. Neiss argued the cause for respondent Planning Board of the Township of Montclair (Beattie Padovano, LLC, attorneys; Mr. Neiss, on the brief). Thomas J. Trautner, Jr. argued the cause for respondent Montclair Kensington Urban Renewal, LLC and Fountain Square Development, LLC (Wolff & Samson, PC, attorneys; Mr. Trautner, on the brief). Genova Burns Giantomasi & Webster, attorneys for respondent Township of Montclair join in the brief of respondent Montclair Kensington Urban Renewal, LLC and Fountain Square Development, LLC.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves, Espinosa and Guadagno.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-4420-12.
Jonathan T. Guldin argued the cause for appellant (J. Clark & Associates, LLC, attorneys; Mr. Guldin, of counsel and on the briefs).
Arthur M. Neiss argued the cause for respondent Planning Board of the Township of Montclair (Beattie Padovano, LLC, attorneys; Mr. Neiss, on the brief).
Thomas J. Trautner, Jr. argued the cause for respondent Montclair Kensington Urban Renewal, LLC and Fountain Square Development, LLC (Wolff & Samson, PC, attorneys; Mr. Trautner, on the brief).
Genova Burns Giantomasi & Webster, attorneys for respondent Township of Montclair join in the brief of respondent Montclair Kensington Urban Renewal, LLC and Fountain Square Development, LLC. PER CURIAM
Plaintiff Richard Grabowsky appeals from an order that dismissed his challenge to a municipal ordinance and also granted the motion of defendants, Montclair Kensington Urban Renewal, LLC, and Fountain Square Development, LLC (collectively, the Redevelopers), to intervene. For the reasons that follow, we affirm.
Ordinance 0-12-28 (the Ordinance) was adopted by the Township Council for the Township of Montclair (the Council) in May 2012. The Ordinance amends one of the town's redevelopment plans to include an assisted living facility as a permitted use for a particular site, the Church Street Lot. Plaintiff filed an action in lieu of prerogative writs against the Township of Montclair and the Planning Board, challenging the validity of the Ordinance. Plaintiff also sought an order enjoining the Township and Planning Board from considering and/or approving any applications for the development of an assisted living facility on the site. After filing his complaint, plaintiff filed an order to show cause with temporary restraints. The Redevelopers filed a motion to intervene in the action, which was granted over plaintiff's opposition.
On the return date of his order to show cause, plaintiff argued that the Ordinance is invalid because the Ordinance conflicts with the Township's Master Plan and both the Council and the Planning Board failed to state their reasons for the departure as required by N.J.S.A. 40A:12A-7(d) and (e). In addition, he argued that Mayor Fried and Councilman Lewis should have been disqualified from voting. In support of that argument, he cited the fact that both Fried and Lewis were members of the Unitarian Universalist Congregation Church (the Church) located next to the parking lot to be redeveloped, and that Fried had commented it would be beneficial for his elderly mother if an assisted living facility were constructed in town. The trial court rejected both arguments and summarily dismissed plaintiff's complaint with prejudice.
On appeal, plaintiff contends that the "fundamental question" unanswered in the trial court and on appeal is whether "the proximity of the Unitarian Church, and the former council members' relationship with that church, have the capacity to impair their objectivity or independence of judgment in passing the Ordinance[.]" He also argues that the Ordinance should be invalidated because Montclair failed to follow mandatory procedures applicable to redevelopment plan amendments and that the trial court's summary dismissal of his complaint was procedurally improper. Finally, he argues that the Redevelopers should not have been permitted to intervene.
Rule 4:67-1, which governs summary actions, states it is appropriate for the court to dispose of cases summarily "provided it appears to the court, on motion made pursuant to R. 1:6-3 and on notice to the other parties the action . . . that it is likely that the matter may be completely disposed of in a summary manner." Summary disposition is also permitted "when the parties understand and consent to a summary disposition of their disputes." See Waste Mgmt. of N.J., Inc. v. Union Cnty. Utils. Auth., 399 N.J. Super. 508, 518 (App. Div. 2008). Such consent is demonstrated by "a clear and unambiguous statement from the judge and the unequivocal consent of the parties to a final resolution[.]" Id. at 519. In this case, there was neither a motion for summary disposition nor consent.
We agree that the summary dismissal of plaintiff's complaint was procedurally improper. However, "appeals are taken from judgments and not from opinions[.]" Glaser v. Downes, 126 N.J. Super. 10, 16 (App. Div. 1973), certif. denied, 64 N.J. 513 (1974). Therefore, if an error does not produce "an unjust result," it "does not prejudice a substantial right and is, therefore, harmless and subject to being disregarded." Pressler & Verniero, Current N.J. Court Rules, comment on R. 1:7-5 (2013). We therefore turn to consider whether the summary dismissal here produced an unjust result.
Plaintiff concedes in his brief that "[a]ll of [the] material factual issues were identified to the motion judge." He contends that the trial court's summary disposition of his complaint deprived him of the opportunity to obtain discovery and have a hearing. The discovery and the factual issues he identifies largely pertain to his contention that Fried's and Lewis's association and interaction with the leaders of the Church constituted "disabling interests" that require the invalidation of the Ordinance. With respect to the alleged inconsistencies between the Master Plan and the Ordinance, which present a question of law, plaintiff only generally argues that discovery and expert testimony should have been permitted on the issue. Plaintiff has not identified evidence he sought to procure that would have supported his claim.
We turn first to plaintiff's disqualification argument. The Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163, codified the existing common law regarding conflict of interest, Care of Tenafly, Inc. v. Tenafly Bd. of Adjustment, 307 N.J. Super. 362, 369 (App. Div.), certif. denied, 154 N.J. 609 (1998), and provides in pertinent part that "[n]o member of the board of adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest." N.J.S.A. 40:55D-69. "The statutory bar 'is not confined to instances of possible material gain[,] but . . . it extends to any situation in which the personal interest of a board member in the 'matter' before it, direct or indirect, may have the capacity to exert an influence on his action in the matter.'" Randolph v. City of Brigantine Planning Bd., 405 N.J. Super. 215, 225 (App. Div. 2009) (quoting Zell v. Borough of Roseland, 42 N.J. Super. 75, 81 (App. Div. 1956)).
The Supreme Court has interpreted the statutory provision as precluding action by board members in four situations:
(1) "Direct pecuniary interests," when an official votes on a matter benefitting [sic] the official's own property or affording a direct financial gain; (2) "Indirect pecuniary interests," when an official votes on a matter that financially benefits one closely tied to the official, such as an employer, or family member; (3) "Direct personal interest," when an official votes on a matter that benefits a blood relative or close friend in a non-financial way, but a matter of great importance, as in the case of a councilman's mother being in the nursing home subject to the zoning issue; and (4) "Indirect Personal Interest," when an official votes on a matter in which an individual's judgment may be affected because of membership in some organization and a desire to help that organization further its policies.
[Wyzykowski v. Rizas, 132 N.J. 509, 525-26 (1993).]
Disqualification is required when the official's "direct or indirect private interests may be at variance with the impartial performance of their public duty." Randolph, supra, 405 N.J. Super. at 225, (citing Aldom v. Borough of Roseland, 42 N.J. Super. 495, 501 (App. Div. 1956)); see, e.g., Kane Props., LLC v. City of Hoboken, ___ N.J. ___ (2013) (slip op. at 43-47) (conflict of interest invalidated resolution where City's Corporation Counsel had previously represented the principal objector to the project before the zoning board); Randolph, supra, 405 N.J. Super. at 231-33 (conflict of interest existed where Board member and Zoning Officer, whose engineering firm employed the Board engineer, had a personal relationship for ten years, lived together, and owned a home together); Haggerty v. Red Bank Borough Zoning Bd. of Adjustment, 385 N.J. Super. 501, 511-12 (App. Div. 2006) (disqualifying conflict of interest that applied to the Board Chairman, whose law firm had previously represented current applicants before the Board, also applied to the Vice-Chairperson, whose father was "of counsel" to the Chairman's law firm at the time); Marlboro Manor, Inc. v. Bd. of Comm'rs, 187 N.J. Super. 359, 362-63 (App. Div. 1982) (official action denying relocation of liquor license invalidated because two members of the township council were members of church that, through its pastor and other members, was a principal objector and failed to disclose membership). In each of the cases in which a disqualifying interest was found, "an objectively reasonable, fully informed member of the public would perceive that the participation by [the official] in the proceedings calls into question the impartiality of the governing body and the integrity of the proceedings." Kane, supra, slip op. at 43-44; see also Randolph, supra, 405 N.J. Super. at 231.
The mere fact that an "interest" exists does not answer the disqualification question. Not all interests "possess the same capacity to tempt the public official to depart from his or her sworn duty." Haggerty, supra, 385 N.J. Super. at 513. "A remote and speculative interest will not be held to disqualify the official." Ibid. (quoting Barrett v. Union Twp. Comm., 230 N.J. Super. 195, 201 (App. Div. 1989).
In Hughes v. Monmouth Univ., 394 N.J. Super. 193 (App. Div.), certif. denied, 192 N.J. 599 (2007), the board members were alumni of the University, which had applied to the board for site plan approval and several variances. However, we found that none of the involvements and interests highlighted by plaintiff constituted disqualifying conflicts because there was no evidence that the board members' current involvement in the University community "evidence[d] any special attachment to the school[.]" Id. at 198. Therefore, we concluded that "no reasonable person could conclude that such involvement would have tempted them 'to depart from [their] sworn public duty.'" Ibid. (quoting Care of Tenafly, supra, 307 N.J. Super. at 369-70).
Plaintiff does not argue that Fried and Lewis have a direct interest in the redevelopment of the site. Rather, he contends that they have an indirect interest, entirely derived from their membership in the Church. To support his argument that the Church has an "interest," plaintiff relies upon statutes that require notice to property owners within 200 feet of a site subject to zoning changes, N.J.S.A. 40:55D-62.1, and a site plan adoption, N.J.S.A. 40:55D-12(b). These statutes are "tantamount to a declaration of interest in the zoning treatment of a particular property on the part of those owning other property within 200 feet." McNamara v. Borough of Saddle River, 64 N.J. Super. 426, 430 (App. Div. 1960). Plaintiff then imputes this purported interest to Fried and Lewis, by relying upon a statement in Zell, supra, 42 N.J. Super. 75, that "[a]ll of the members of a non-pecuniary organization must be deemed to have the same relative interest in it (although non-pecuniary) as the stockholders have in a corporation. The totality of interest in a church obviously resides in its entire membership." Id. at 81 (emphasis added) (internal citations omitted).
Plaintiff's reliance is misplaced and his analysis is fatally flawed. The critical and undisputed fact, ignored by plaintiff, is that the Church was neither an applicant nor an objector in the matter under review. Indeed, it took no position on the matter at all. The facts here plainly fall outside the general rule that "[w]here a board member is a member of a church or other organization which is either an applicant or objector, the member must be disqualified[,]" Cox & Koenig, Current N.J. Zoning & Land Use Administration 67 (emphasis added).
Although plaintiff has argued that the Church will benefit from the redevelopment project because, e.g., there are "obvious financial benefits to the Unitarian Church in having immobile, elderly neighbors next door," we agree with the trial court that such interests are far too speculative for consideration in determining whether Fried and Lewis had a disqualifying conflict of interest. Similarly, we agree that Fried's comment that his elderly mother could potentially reside in the facility fails to show that Fried pre-judged the issue, requiring his disqualification. See Kramer v. Bd. of Adjustment, 45 N.J. 268, 282-83 (1965). We therefore conclude that the alleged conflict of interest does not provide a ground for the invalidation of the Ordinance as a matter of law.
Citing N.J.S.A. 40A:12A-7(d) and (e), plaintiff argues in the alternative that the Ordinance is invalid because it conflicts with the Master Plan, and the Planning Board and Council failed to state their reasons for this departure. He argues that, as a result of this failure, the Council's adoption of the Ordinance was capricious and ultra vires, see Giannone v. Carlin, 20 N.J. 511, 517 (1956), and thus that it was invalid.
The 2006 Master Plan Reexamination Report identified the town's "most pressing land use issues" at the close of 2005. Plaintiff points specifically to two of these issues: (1) "[p]arking capacity" and (2) "new construction which does not always harmonize with the built environment -- in scale, density and style." He also relies upon a zoning ordinance, amended in 1998, "under the auspices of the Master Plan in effect at that time" to permit the construction of assisted living facilities in the zone district containing the Church Street Lot. The zoning ordinance provided, in relevant part, that such a facility should have a maximum density of fifty-five units per acre, a maximum height of six stories, and a parking ratio of one parking space per three beds, plus one space for each staff person at the maximum shift.
Plaintiff argues that the amendment effected by the Ordinance conflicts with the Reexamination Report because the facility proposed for construction on the Church Street Lot would "dramatically decrease available parking in the already challenged downtown Montclair business district and permit a facility that [would] not harmonize, at least with respect to density, with the built environment." He further argues that the amendment conflicts with the zoning ordinance, because the facility proposed only 0.5 parking spaces per unit, with no additional parking spots for staff, and eighty-eight units, double the amount permitted by the fifty-five unit per one acre ratio. Because of these conflicts, plaintiff argues that the Planning Board and the Council were required to explain their reasons for the departure, N.J.S.A. 40A:12A-7(d) and (e), and that their failure to do so invalidates the Ordinance.
N.J.S.A. 40A:12A-7(e) provides that, prior to the adoption of an amendment to a redevelopment plan, the planning board must submit a report to the governing body within forty-five days after referral, which contains its recommendations regarding the amendment. The report must identify "any provisions in the proposed redevelopment plan which are inconsistent with the master plan" and include "recommendations concerning these inconsistencies . . . ." Ibid. After receipt of the report, the governing body may either "approve or disapprove or change any recommendation by a vote of a majority of its full authorized membership[,]" and must state in its minutes its reasons for not following the planning board's recommendations. Ibid.
N.J.S.A. 40A:12A-7(d) similarly provides that
[a]ll provisions of the redevelopment plan shall be either substantially consistent with the municipal master plan or designed to effectuate the master plan; but the municipal governing body may adopt a redevelopment plan which is inconsistent with or not designed to effectuate the master plan by affirmative vote of a majority of its full authorized membership with the reasons for so acting set forth in the redevelopment plan.The Supreme Court has stated that the term "substantially consistent" "permits some inconsistency, provided it does not substantially or materially undermine or distort the basic provisions and objectives of the Master Plan." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 384 (1995). A planning board's determination of whether proposed amendments are "substantially consistent" with the town's master plan are "entitled to deference and great weight." Id. at 383.
[(Emphasis added).]
As the Redevelopers correctly note, the Reexamination Report is not the Master Plan. N.J.S.A. 40:55D-89 provides that at least every ten years, the planning board should conduct "a general reexamination of its master plan and development regulations[,]" and issue a reexamination report stating (a) "[t]he major problems and objectives relating to land development in the municipality at the time of the adoption of the last reexamination report"; (b) "[t]he extent to which such problems and objectives have been reduced or have increased subsequent to such date"; (c) "[t]he extent to which there have been significant changes in the assumptions, policies, and objectives forming the basis for the master plan or development regulations as last revised"; (d) "[t]he specific changes recommended for the master plan or development regulations, if any"; and (e) "[t]he recommendations of the planning board concerning the incorporation of redevelopment plans . . . into the . . . master plan, and recommended changes, if any, . . . necessary to effectuate the redevelopment plans of the municipality." Thus, plaintiff's reliance upon the Reexamination Report is misplaced and is not what is contemplated by N.J.S.A. 40A:12A-7(d) and (e).
The same is true of the zoning ordinance relied upon by plaintiff. N.J.S.A. 40A:12A-7(d) and (e) expressly mention the master plan only and do not require an explanation for a departure from anything else. Accordingly, the Planning Board and the Council did not fail to comply with the statutory procedure and the Ordinance is not invalid on this ground.
Finally, plaintiff argues that the trial court erred in granting the Redevelopers' motion to intervene in the action. This argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION