Opinion
DOCKET NO. A-4873-13T4 DOCKET NO. A-5004-13T4
02-03-2017
IN THE MATTER OF SHIPYARD ASSOCIATES LP WATERFRONT DEVELOPMENT PERMIT and WATER QUALITY CERTIFICATE NO. 0905-07-0001.2 WFD 110001
Craig S. Hilliard argued the cause for appellant Hudson Tea Buildings Condominium Association, Inc. (Stark & Stark, attorneys; Mr. Hilliard, Eric S. Goldberg, and H. Matthew Taylor, on the briefs). Joseph J. Maraziti, Jr., argued the cause for appellant City of Hoboken (Maraziti Falcon, LLP, attorneys; Christopher D. Miller, on the briefs). Kevin J. Coakley argued the cause for respondent Shipyard Associates, L.P. (Connell Foley LLP, attorneys; Mr. Coakley, of counsel and on the brief; Nicole B. Dory, on the brief). Christine Piatek, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Cheryl R. Clarke, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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. Before Judges Yannotti, Fasciale and Gilson. On appeal from the New Jersey Department of Environmental Protection. Craig S. Hilliard argued the cause for appellant Hudson Tea Buildings Condominium Association, Inc. (Stark & Stark, attorneys; Mr. Hilliard, Eric S. Goldberg, and H. Matthew Taylor, on the briefs). Joseph J. Maraziti, Jr., argued the cause for appellant City of Hoboken (Maraziti Falcon, LLP, attorneys; Christopher D. Miller, on the briefs). Kevin J. Coakley argued the cause for respondent Shipyard Associates, L.P. (Connell Foley LLP, attorneys; Mr. Coakley, of counsel and on the brief; Nicole B. Dory, on the brief). Christine Piatek, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Christopher S. Porrino, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Cheryl R. Clarke, Deputy Attorney General, on the brief). PER CURIAM
Hudson Tea Buildings Condominium Association, Inc. (Hudson Tea) and the City of Hoboken (City) appeal from a decision of the New Jersey Department of Environmental Protection (Department), dated December 2, 2011, to grant a waterfront development permit (WDP) to Shipyard Associates, L.P. (Shipyard), and a decision of the Commissioner of the Department, dated May 13, 2014, denying their requests for an evidentiary hearing on their objections to the permit. We affirm.
I.
Shipyard is the owner of real property in the City. In 1997, the City's Planning Board approved Shipyard's site plan and subdivision application for a planned unit development in seven blocks. The Planning Board's approval authorized Shipyard to develop Blocks A through F with a mix of residential and non-residential development, and Block G with a commercial tennis facility and parking lot. In connection with the Planning Board's approval, Shipyard and the City entered into an agreement that required, among other things, the inclusion of certain public improvements in the development.
Shipyard also applied to the Department for a WDP for the project. The Department issued the permit with certain conditions, and it was challenged on appeal. We affirmed the Department's decision to grant the permit for the project. In re Waterfront Development Permit No. 0905-03-0001.6/.7/.8, No. A-0805-97 (App. Div. Oct. 20, 1998) (slip op. at 3). Shipyard thereafter developed Blocks A through F, but it did not develop Block G. In August 2002, the WDP expired.
Block G consists of a 150-ft. x 508-ft. platform, of which about one-third is on fast land, and about two-thirds is a pier on pilings over the Hudson River. The platform extends into the water in a north-south direction with an orientation that is generally parallel to the river. The property has frontage upon Sinatra Drive, a county-owned roadway, and Shipyard Lane, a private street. Hudson Tea's buildings are located nearby.
In January 2008, Shipyard applied to the Department for a WDP to repair the platform by installing a sheet pile along its perimeter; removing the earthen fill, timber deck, and portions of a gravity wall; and placing clean fill in the interior area. The Department denied the application because the regulations did not allow the placement of fill below the existing platform. Shipyard requested an administrative hearing to contest the Department's decision, but later agreed to consider alternatives to the proposed plan.
In January 2011, Shipyard requested a pre-application meeting with the Department to propose an alternative plan for the platform. The meeting took place in March 2011. Thereafter, Shipyard submitted an application for a WDP for the project, and sent the required notice of the application to adjoining property owners, the City, and other agencies.
At the same time, Shipyard filed an application for a permit with the Army Corps of Engineers (ACE), pursuant to the federal Clean Water Act (CWA), 33 U.S.C.A. §§ 1251 to 1388. Sometime later, Hudson Tea residents, City officials and others submitted letters to the Department objecting to Shipyard's application.
In June 2011, the Department sought additional information concerning the application, which Shipyard provided. In September 2011, the ACE granted Shipyard a federal permit for the project. In December 2011, the Department produced an Environmental Summary Report, which recommended issuance of the WDP with certain conditions. On December 2, 2011, the Department granted the WDP to Shipyard and issued a letter responding to the public comments it had received about the project.
Hudson Tea and the City later submitted requests to the Department for an evidentiary hearing on the WDP. The Commissioner filed an opinion and order dated May 13, 2014, denying the requests. The Commissioner found that neither Hudson Tea nor the City had a statutory or constitutional right to an evidentiary hearing on the permit. The Commissioner also determined that the project complied with the applicable permit requirements. Thereafter, Hudson Tea and the City appealed.
The Commissioner also denied a request by the Fund for a Better Waterfront (FBW) for an evidentiary hearing on the permit. The FBW has not appealed.
II.
We turn first to Hudson Tea and the City's contention that the Commissioner erred by denying their requests for an evidentiary hearing on the WDP issued to Shipyard. Hudson Tea and the City contend that they have statutory and constitutional rights to an evidentiary hearing.
The scope of our review in an appeal from a final decision of an administrative agency is limited. Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). We must uphold an agency's action in the absence of a "'clear showing' that it is arbitrary, capricious, or unreasonable" or "lacks fair support in the record[.]" Ibid. In our review, we consider:
(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.When weighing these considerations, we must acknowledge, when appropriate, an agency's "expertise and superior knowledge of a particular field." Ibid. (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).
[Id. at 10 (quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]
We note initially that under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -25, "all interested persons are afforded reasonable opportunity to submit data, views or arguments, orally or in writing, during any proceedings involving a permit decision[.]" N.J.S.A. 52:14B-3.1(a). A person is entitled to an evidentiary hearing under the APA only if that person has a "particularized property interest" sufficient to require a hearing as a matter of statutory or constitutional right. In re Freshwater Wetlands Statewide Gen. Permits, 185 N.J. 452, 463-64 (2006) (citing N.J.S.A. 52:14B-2(b), -3.1, -3.2, and -9).
A. Whether Hudson Tea and the City have a statutory right to an evidentiary hearing
Hudson Tea and the City acknowledge that they do not have a right to an evidentiary hearing under the Waterfront Development Act (WDA), N.J.S.A. 12:5-1 to -11. They argue, however, that they have a right to an evidentiary hearing under the Water Pollution Control Act (WPCA), N.J.S.A. 58:10A-1 to -37, because the Department issued a water quality certificate (WQC) to Shipyard with the WDP.
The WPCA provides in pertinent part:
A person, other than the permittee, seeking to be considered a party to the action shall submit a request to be so considered to the commissioner within [thirty] days of the publication of the notice of the decision to grant, deny, modify, suspend, or revoke a permit. The administrative law judge upon referral, or the commissioner, if the commissioner decides to make the determination, shall find whether a person other than the permittee is a party to the action within [thirty] days of the submission of the request or the referral to the administrative law judge. A person shall be deemed a party to the action only if:
(1) the person's objections to the action to grant, deny, modify, suspend, or revoke a permit were raised by that person in the hearing held pursuant to [N. J.S.A. 58:10A-9] or, if no hearing was held, the objections were raised in a written submission;
(2) the person demonstrates the existence of a significant issue of law or fact;
(3) the person shows that the significant issue of law or fact is likely to affect the permit determination;If a person is entitled to status as a party, that person is afforded the opportunity to contest the permitting decision in an administrative hearing. N.J.S.A. 58:10A-7(d).
(4) the person can show an interest, including an environmental, aesthetic, or recreational interest, which is or may be affected by the permit decision and that the interest fairly can be traced to the challenged action and is likely to be redressed by a decision favorable to that person.
[N. J.S.A. 58:10A-7(e)(1)-(4)].
Here, the Commissioner noted that a WQC is not a "permit" under N.J.S.A. 58:10A-7. Indeed, Shipyard never sought a permit pursuant to the WPCA. It sought the permit pursuant to the WDA, and the Department issued the WQC to Shipyard as part of the permitting process under the WDA. The decision to issue the WQC was not a permitting decision under the WPCA, as to which non-permittees like Hudson Tea and the City may be entitled to an evidentiary hearing under N.J.S.A. 58:10A-7(e).
Since the WDA does not grant non-permittees like Hudson Tea and the City a right to an evidentiary hearing on a WDP, and they do not have a right to a hearing under the WPCA, the Commissioner correctly determined that neither Hudson Tea nor the City have a statutory right to an evidentiary hearing to challenge the Shipyard permit.
B. Whether Hudson Tea and the City have a constitutional right to an evidentiary hearing
Generally, a property owner does not have a right to an evidentiary hearing regarding the development of neighboring property unless the property owner shows "a particularized property interest" that is affected by the development. In re Freshwater Wetlands Statewide Gen. Permits, supra, 185 N.J. at 470. It is well established that "[f]ear of damage" to "generalized property rights shared with other property owners is insufficient" to establish such a particularized property right. Ibid. (quoting Spalt v. N.J. Dept. of Envtl. Prot., 237 N.J. Super. 206, 212 (App. Div. 1989), certif. denied, 122 N.J. 150 (1990)).
Hudson Tea argues that it has a "particularized property interest" that would be adversely affected by the Shipyard project. Hudson Tea claims the project would adversely affect the health, safety, welfare, and overall quality of life of its residents. Hudson Tea also asserts that the project will have an adverse impact upon traffic, aesthetics, open space, safety concerns, and natural resources.
The Commissioner correctly determined these concerns do not constitute a particularized property right or special interest that would require an evidentiary hearing. See In re Riverview Dev. LLC, Permit No. 0908-05-0004.3 WFD 060001, 411 N.J. Super. 409, 411 (App. Div. 2010) (holding that townhouse residents, whose views of the Hudson River would be adversely affected by a proposed high-rise development, do not have a constitutional right to a trial-type hearing to contest the developer's application for a WDP), certif. denied, 202 N.J. 347 (2010); see also In re Amico/Tunnel Carwash, 371 N.J. Super. 199, 210 (App. Div. 2004) (concluding that there is no constitutional right to an evidentiary hearing where property owners claimed they would be adversely affected by traffic congestion from a proposed development).
Hudson Tea further argues that it has a constitutionally-protected property interest based upon the 1997 Developer's Agreement between the City and Shipyard. According to Hudson Tea, that agreement created a reasonable expectation on the part of its residents that they will have an "unimpeded view of the Hudson River and Manhattan skyline."
However, in the absence of an enforceable deed restriction or easement, property owners do not have a property interest in unobstructed scenic views. Riverview, supra, 411 N.J. Super. at 435. Hudson Tea contends the Developer's Agreement created a property right that is tantamount to a deed restriction or easement. We disagree. The agreement between Shipyard and the City does not include an enforceable deed restriction or easement that guarantees Hudson Tea's residents an unimpeded view of the river and the Manhattan skyline.
In its appeal, the City argues that it has constitutionally-protected property and regulatory interests that would be adversely affected by the Shipyard project. The City asserts that the development will impede access to its property, which can only be obtained through the project site. However, in November 1997, the City waived all easements and rights of way over the project site.
The City also argues that it will not be able to obtain access to its property while the project is under construction. The record shows, however, that the platform is presently in disrepair, and access to the City's property currently may only be obtained by water. Thus, construction will not have a substantial adverse impact upon the City's ability to obtain access to its property.
The City further argues that it has a constitutionally-protected interest in the completion of certain recreational and aesthetic improvements, which were allegedly contemplated when the City approved the project. The Department did not, however, address that issue when it granted the permit, and the City's interest in having those improvements made is not one that requires an evidentiary hearing on the permit.
We conclude that the Commissioner correctly determined that neither Hudson Tea nor the City has a constitutional right to an evidentiary hearing on its objections to the Shipyard permit.
III.
Hudson Tea and the City argue that even if they are not entitled to an evidentiary hearing on their objections to the permit, the Department's permitting decision should be reversed. They contend the decision is not supported by sufficient credible evidence in the record and it is contrary to certain regulatory requirements. Their arguments are primarily based upon the Coastal Zone Management (CZM) rules, which the Department promulgated pursuant to the WDA.
We note that when the permit was issued, the CZM rules were codified in N.J.A.C. 7:7E-1.1. to -8.23. These rules were later recodified at N.J.A.C. 7:7-1.1 to -16.14, with certain changes that are not relevant to this appeal. See 47 N.J.R. 1392(a) (July 6, 2015). --------
A. High-Rise Structure Rules
Hudson Tea and the City contend the permit violates the rules on high-rise structures in N.J.A.C. 7:7E-7.14 (now N.J.A.C. 7:7-15.14). A high-rise structure is defined as a structure "which [is] more than six stories or more than [sixty] feet in height as measured from existing preconstruction ground level." N.J.A.C. 7:7E-7.14(a) (now N.J.A.C. 7:7-15.14(a)). The rules provide in relevant part that "[t]he longest lateral dimension of any high-rise building structure must be oriented perpendicular to the beach or coastal waters." N.J.A.C. 7:7E-7.14(b)(3) (now N.J.A.C. 7:7-15.14(b)(3)).
The rules further provide that "[t]he proposed structure must not block the view of dunes, beaches, horizons, skylines, rivers, inlets, bays, or oceans that are currently enjoyed from existing residential structures, public roads, or pathways, to the maximum extent practicable[.]" N.J.A.C. 7:7E-7.14(b)(4) (now N.J.A.C. 7:7-15.14(b)(4)). In addition, the rules state that high-rise structures must "not have an adverse impact on air quality, traffic, and existing infrastructure[.]" N.J.A.C. 7:7E-7.14(b)(7) (now N.J.A.C. 7:7-15.14(b)(7)).
Here, the Department rejected the contention that the project must be built perpendicular to the Hudson River. In commenting on the objections to the permit, the Department noted that the project is situated on the shoreline along 15th Street and Weehawken Cove. The Department found that this qualifies as a "beach" or "coastal waters" under the regulation. The project is oriented perpendicular to the "beach" or "coastal waters."
The Department also determined, based on a traffic study Shipyard submitted in support of the application, that the project will not have a significant adverse impact on traffic in the area. In addition, the Department found that the proposed buildings are oriented in a manner to minimize, to the maximum extent practicable, any adverse effect on the view of the river and the New York City skyline from the Hudson Tea buildings.
The Department's decision on these issues is supported by sufficient credible evidence in the record. The arguments that the project does not comply with the rules on high-rise structures lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).
We note, however, that Hudson Tea contends that the project will irrevocably destroy its residents' views of the river and Manhattan Skyline. In responding to the comments on the permit, the Department noted that Hudson Tea buildings are not on the waterfront. The Hudson Tea buildings are separated from the river by existing high-rise structures on Sinatra Drive.
Furthermore, the Department considered Shipyard's plans and Shipyard's analysis of the effect the project will have on the views of the river. The Department found that Shipyard had minimized to the maximum extent practicable the impact the project would have upon the scenic views of the river and Manhattan skyline that is presently enjoyed by the Hudson Tea residents. The record supports that finding.
B. Rules on Housing Use
Next, Hudson Tea and the City argue that the project violates the rules on housing use. The rules provide in pertinent part that in special urban areas and along certain rivers, housing is allowed on "structurally sound existing pilings." N.J.A.C. 7:7E-7.2 (now N.J.A.C. 7:7-15.2(b)(2)(i)). The rules further provide that the pilings may be "reconfigured" provided that "the total area of water coverage is not increased and fisheries resources are not adversely impacted." Ibid.
Hudson Tea and the City contend the Department erred by finding that the existing pilings of the pier are structurally sound. We disagree. In reaching that decision, the Department relied upon the engineering reports and other information Shipyard submitted in support of its application. Neither Hudson Tea nor the City provided any expert analysis that would support a contrary finding.
Hudson Tea and the City further argue that the rules allow "reconfiguration" but not "replacement" of the existing pilings. Again, we disagree. The regulation does not define the term "reconfiguration" and the Department reasonably interpreted that term to include replacement. Our deference to the Department's interpretation is warranted because the Department is charged with enforcing the regulation. Hargrove v. Sleepy's, LLC, 220 N.J. 289, 302 (2015); Waksal v. Dir., Div. of Taxation, 215 N.J. 224, 231 (2013).
Hudson Tea and the City also contend the Department erred by allowing housing to be constructed on the platform. The CZM rules provide that housing may be constructed over certain rivers when water-dependent uses are not feasible. N.J.A.C. 7:7E-3.43(c) (now N.J.A.C. 7:7-9.41(c)). Hudson Tea and the City argue that Shipyard failed to establish that water-dependent uses are not feasible for the platform.
In his decision, the Commissioner noted that the current municipal zoning recognizes that there has been a significant decline in traditional waterfront uses in the area, and encourages alternative uses on the waterfront, such as residential developments. The Commissioner observed that much of the waterfront upland of the platform is now residential.
The Commissioner also observed that water-dependent uses such as ports, terminals for passenger or cargo movement, and maritime activities "are no longer compatible with the existing land use pattern and thus are not viable at this location." The Commissioner's finding is supported by sufficient credible evidence in the record.
C. Public Open Space Requirements
Hudson Tea and the City argue that the project does not comply with the public open space requirements in the Hudson River waterfront area rules, N.J.A.C. 7:7E-3.48 (now N.J.A.C. 7:7-9.46). The rule provides that an average building height of sixty feet requires minimum landward open space with a length of more than thirty feet, and a minimum waterward open space length of forty-five feet. N.J.A.C. 7:7E-3.48(d)(1)(ii) and (iv) (now N.J.A.C. 7:7-9.46(d)(1)(ii) and (iv)).
In his decision, the Commissioner addressed this issue and stated:
[t]he waterward end of the pier is owned by [the City] and is zoned for open space. That area is approximately 118 feet in length and comprises 17,700 square feet. Shipyard has proposed a length of [twenty] feet of open space at the northern end of the pier between the proposed north tower and the property owned by [the City] and a [sixteen] foot wide public walkway around the entire perimeter of the pier. Shipyard has proposed an additional 12,572 square feet of open space on the eastern and western sides of the pier that are contiguous with the landward and waterward ends of the pier. That figure . . . does not include the property owned by [the City] at the waterward end of the pier.
The Commissioner found that the Shipyard project complies with the public open space requirements set forth in the regulations. There is sufficient credible evidence in the record to support the Commissioner's finding.
D. Rules on Filling of Intertidal and/or Subtidal Shallows
Hudson Tea and the City contend the project does not comply with the rules governing the filling of intertidal and/or subtidal shallows in N.J.A.C. 7:7E-3.15 (now N.J.A.C. 7:7-9.15). In his decision, the Commissioner noted that the purpose of these rules is "to minimize the loss or degradation of such natural resources."
The Commissioner pointed out that Shipyard's site plans indicate that the proposed reconstruction of the platform calls for the replacement of the pier's existing pilings with pilings made of steel and concrete. The Commissioner stated that:
[s]uch reconstruction is consistent with current construction standards and would extend the life of the pier. Replacing the existing pile field [will] reduce the number of piles from 2,383 to 836 and result in a smaller pile field footprint. The proposed pile field will increase the water flow beneath the pier.The Commissioner's determination that the project complies with the regulation is supported by sufficient credible evidence in the record.
E. Rules Pertaining to Flood-Hazard Areas
Hudson Tea and the City contend that the project violates N.J.A.C. 7:13-10.2(v) (now N.J.A.C. 7:13-11.2(d)). See 47 N.J.R. 1041(a). The rule requires that the developer of a site within twenty-five feet of the top of any bank or edge of water remove existing impervious surfaces within a riparian zone, and adequately stabilize and replant the area with indigenous, non-invasive vegetation. N.J.A.C. 7:13-10.2(v) (now N.J.A.C. 7:13-11.2(d)).
In his decision, the Commissioner noted, that "[b]ecause the project will be built on a pier, there is no riparian zone on which the vegetation can be planted." The Commissioner's finding that N.J.A.C. 7:13-10.2(v) does not apply to the project is supported by sufficient credible evidence in the record.
F. Stormwater Management Controls
Hudson Tea and the City contend the project does not have adequate stormwater management controls, as required by N.J.A.C. 7:8. In responding to this argument, the Commissioner stated:
In its application, Shipyard represented that the new impervious surface on the site will be 0.22 acre, which is below the 0.25 acre threshold that triggers stormwater treatment for the removal of total suspended solids. Moreover, the stormwater runoff from the site is primarily from the roofs. Stormwater from roofs does not generate total suspended solids and is considered clean.
The Commissioner therefore found that the project is not subject to the stormwater management controls in the rules. There is sufficient credible evidence in the record to support the Commissioner's finding on this issue
G. Public Trust Doctrine
Hudson Tea argues that the project violates the CZM rules by restricting public access to tidal waters and their shores in contravention of the Public Trust Doctrine. See N.J.A.C. 7:7E-3.50 (now N.J.A.C. 7:7-9.48). In his decision, the Commissioner noted that under the Public Trust Doctrine, the State holds tidal waterways and their shores in trust so that members of the public may enjoy the tidal waters and their shores for a variety of uses.
The Commissioner found that the Shipyard project does not violate the doctrine. The Commissioner stated that the project will enhance public access by providing access to the tidal waterways and shore where access is not currently provided. The Commissioner pointed out that the project will include a sixteen-foot walkway around the perimeter of the platform. The Commissioner's finding is supported by sufficient credible evidence in the record.
H. Uplands Permit
Hudson Tea and the City contend the project requires an Upland Waterfront Development Permit (UWDP). The Commissioner found, however, that a UWDP is not required because the project involves rehabilitation of an existing platform, which is situated on the water. The Commissioner therefore determined that the project does not involve construction on uplands, as defined in N.J.A.C. 7:7E-5.2 (which is now found in N.J.A.C. 7:7-1.5). See 46 N.J.R. 1051(a). The record supports the Commissioner's finding that an UWDP is not required.
I. Suspension or Revocation of Permit
Hudson Tea and the City argue that the Department should have suspended or revoked Shipyard's permit because after the permit was issued, the project site was placed in a coastal high-hazard area. We note that the Department issued the permit to Shipyard on December 2, 2011. Thereafter, Superstorm Sandy struck New Jersey.
The Department later made various changes to its regulations, which took effect in January 2013. 45 N.J.R. 360(a) (January 23, 2013). In addition, in February 2014, the City amended its ordinances and placed the project site in a coastal high-hazard area.
Shipyard argues that these changes did not constitute "good cause" for revocation of a permit under N.J.A.C. 7:7-4.11, the regulation that was in effect when the changes were made to the regulations and zoning ordinance. We agree. The regulation defined "good cause" as
violations of permit condition, significant changes in the plan for the development which occur after a permit is issued which are not explicitly authorized in writing by the Department, the applicant's failure to correctly identify project impacts, or unanticipated adverse effects caused by the development.
[N.J.A.C. 7:7-4.11(a)].
As Shipyard points out, there is no evidence of any permit violations, significant unauthorized changes "in the plan," or any adverse unanticipated impacts "caused by the development." We therefore conclude that post-Superstorm Sandy changes to the Department's regulations and the City's ordinances did not constitute "good cause" to revoke the WDP issued to Shipyard in December 2011.
We have considered the other arguments raised by Hudson Tea and the City and conclude that they lack sufficient merit to warrant discussion in this 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