Opinion
DOCKET NO. A-4528-12T3
07-28-2014
RCD ENTERPRISES, LLC, JAMES F. CAULFIELD and KATHRYN A. CAULFIELD, Plaintiffs-Appellants, v. MUNICIPAL COUNCIL OF THE CITY OF HOBOKEN and PLANNING BOARD OF THE CITY OF HOBOKEN, Defendants-Respondents.
James C. McCann argued the cause for appellants (Connell Foley, LLP, attorneys; Mr. McCann, of counsel and on the brief; Melissa D. Lopez, on the brief). Ronald D. Cucchiaro argued the cause for respondents (Weiner Lesniak, LLP, attorneys; Mr. Cucchiaro, of counsel and on the brief; Richard Brigliadoro, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner, Alvarez and Higbee. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3804-12. James C. McCann argued the cause for appellants (Connell Foley, LLP, attorneys; Mr. McCann, of counsel and on the brief; Melissa D. Lopez, on the brief). Ronald D. Cucchiaro argued the cause for respondents (Weiner Lesniak, LLP, attorneys; Mr. Cucchiaro, of counsel and on the brief; Richard Brigliadoro, on the brief). PER CURIAM
Plaintiffs, RCD Enterprises, LLC and James F. and Kathryn A. Caulfield, appeal from an April 17, 2013 order dismissing their complaint in lieu of prerogative writs against defendants, Hoboken City Council (Council) and Hoboken Planning Board (Board). We affirm.
I
In their complaint, plaintiffs, who own properties in the Southwest Area of Hoboken, challenged a June 20, 2012 Council resolution designating several parcels of land in that area (the designated area) as being in need of rehabilitation, pursuant to the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-14(a). By its terms, the statute permits a designation where a rehabilitation program "may be expected to prevent further deterioration and promote the overall development of the community." Ibid. The municipality must also make findings as to any of six specific conditions, including that "a majority of the water and sewer infrastructure in the delineated area is at least 50 years old and is in need of repair or substantial maintenance." N.J.S.A. 40A:12A-14(a)(2). The municipality must also find that "a program of rehabilitation, as defined in [N.J.S.A. 40A:12A-3], may be expected to prevent further deterioration and promote the overall development of the community." N.J.S.A. 40A:12A-14(a)(3).
Although the entire City was designated as in need of rehabilitation in 1979, the Council decided to undertake a further, specific study of the Southwest Area. Arguably, this step was not legally required, since a blight designation does not expire due to the mere passage of time. Downtown Residents for Sane Dev. v. City of Hoboken, 242 N.J. Super. 329, 340 (App. Div. 1990). However, the City took this step in the interest of what it characterizes as "transparency." We infer from the hearing transcripts that City officials wanted the public to understand why the Council was focusing on rehabilitating this particular section of Hoboken.
The statute was amended in 2013 to divide subsection (a) into six subsections, including placing water and sewer infrastructure in a separate subsection (a)(6). The substance of the provision did not change. We quote the statute as it existed in 2012.
Before adopting the resolution, the municipal council must seek input from the local planning board. However, because a "rehabilitation" designation does not permit the City to exercise the power of eminent domain, as it can after a declaration that an area is in need of "redevelopment," see N.J.S.A. 40A:12A-6, the process is relatively streamlined. The planning board need not hold a hearing on the proposed "rehabilitation" designation, and if the board does not respond timely, the City can adopt a resolution without the board's input:
Prior to the adoption of the resolution, the governing body shall submit it to the municipal planning board for its review. Within 45 days of its receipt of the proposed resolution, the municipal planningOnce the City makes the rehabilitation designation, it may then adopt a redevelopment plan setting forth the specific steps to be taken to rehabilitate the designated area. N.J.S.A. 40A:12A-7. Additional public input, including a public hearing, is required prior to the adoption of a redevelopment plan. See N.J.S.A. 40A:12A-7; Bryant v. City of Atl. City, 309 N.J. Super. 596, 603 (App. Div. 1998).
board shall submit its recommendations regarding the proposed resolution, including any modifications which it may recommend, to the governing body for its consideration. Thereafter, or after the expiration of the 45 days if the municipal planning board does not submit recommendations, the governing body may adopt the resolution, with or without modification.
[N.J.S.A. 40A:12A-14(a).]
In this case, the June 20, 2012 resolution resulted from a much more extensive process than N.J.S.A. 40A:12A-14 required, because the City first explored the possibility of declaring the area to be in need of redevelopment, and only later limited the inquiry to whether it was in need of rehabilitation. In October 2009 and October 2010, the Council passed resolutions authorizing the Board to perform a preliminary investigation to determine whether all or part of the Southwest Area could be designated as an area "in need of redevelopment" under the LRHL. See N.J.S.A. 40A:12A-6 (requiring the planning board to conduct an investigation and hold a public hearing, before the municipal council can make a redevelopment designation). The investigation was later expanded to determine, in the alternative, whether all or part of the area could be classified as an "area in need of rehabilitation" under the LRHL.
The Planning Board hired Clarke Caton Hintz, an engineering firm, which performed the investigations and drafted a report (Clarke Study) detailing its findings and conclusions. The Clarke Study incorporated and relied upon another report (Maser Memo) drafted by Maser Consulting, which analyzed the sewer and water systems in Hoboken and found that the Southwest Area met the criteria for an area in need of rehabilitation. The Planning Board held public hearings between February and April 2012, at which the findings of the Clarke Study and Maser Memo were presented, and members of the public were allowed to submit comments and cross-examine the experts who drafted the reports.
On May 16, 2012, the City Council abandoned its initial plan to determine whether the Southwest Area could be deemed an area in need of redevelopment and instead chose to consider only a rehabilitation determination. Several members of the public and property owners in the Southwest Area, including plaintiffs, objected to this course of action. Nonetheless, the Council voted to send a proposed resolution designating part of the Southwest Area as an area in need of rehabilitation to the Planning Board for its recommendations, pursuant to N.J.S.A. 40A:12A-14(a). On June 5, 2012, the Planning Board reviewed the proposed resolution and offered four recommendations. Thereafter, on June 20, 2012, the Council voted to formally adopt the proposed resolution, thereby officially designating the enumerated blocks of the Southwest Area as in need of rehabilitation. The Council and the Board both found that the designated area was in need of rehabilitation, because its inadequate sewage and water systems - which were over fifty years old and portions of which dated from the mid-1800's - caused periodic flooding.
Plaintiffs filed a complaint in the Law Division, objecting to the inclusion of their properties in the designated area, arguing that their properties were not subject to flooding and that the City could not make the rehabilitation designation because it had no ownership or control over the local sewer and water pipes, which belonged to two public utilities. They further argued that the Council's action was arbitrary and capricious, because the resolution did not specifically recite that the Council had considered the Clarke Study and the Maser Memo in reaching its decision. Plaintiffs also contended that the Maser Memo was a net opinion and was contradicted by another expert report, prepared by CH2M HILL, which concluded that flooding in the area was attributable to the low elevation of the roadways.
In his oral opinion of April 3, 2013, Judge Patrick Arre found that the Council did consider the expert reports. He also found that the Maser Memo was not a net opinion, because the expert who prepared the report based his conclusions on his personal inspection of the sewer and water systems and discussions with the local utilities that operated them. The judge found that the Council's decision was not arbitrary or capricious, because it was based on record evidence supporting the Council's determination. He further concluded that it was irrelevant that the sewer and water systems each belonged to a public utility rather than to the City, because the LRHL did not prohibit rehabilitation declarations respecting property owned by public utilities. He also rejected plaintiffs' argument that the Board was required to hold public hearings before providing "commentary or feedback" to the Council on its proposed resolution.
II
On this appeal, we evaluate the challenged resolution using the same deferential standard as the trial court. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 433 (App. Div. 2009). Like all municipal enactments, the June 20, 2012 resolution is entitled to "a presumption of validity." Bryant, supra, 309 N.J. Super. at 610. A party challenging a municipal resolution "bears a 'heavy burden' to show that the [enactment] is arbitrary, capricious, or unreasonable." Dock St. Seafood, Inc. v. City of Wildwood, 427 N.J. Super. 189, 201 (Law Div. 2011) (citation omitted), aff'd o.b., 425 N.J. Super. 590 (App. Div. 2012). We agree with Judge Arre that plaintiffs failed to satisfy that burden. Except as addressed below, we also find plaintiffs' appellate arguments to be without sufficient merit to warrant discussion here, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons stated in Judge Arre's well-reasoned opinion.
Plaintiffs contend that the Council's action in adopting the resolution was arbitrary, because (a) the Council did not consider any expert evidence to support its conclusions, and (b) to the extent the Council considered expert reports, the Maser Memo was a net opinion. See State v. Townsend, 186 N.J. 473, 494 (2006) (discussing the net opinion rule). We disagree. It is readily inferable that the Council relied on the record created by the Planning Board, which is more than sufficient to support a finding that the designated area is in need of rehabilitation. Part of that evidence included the Maser Memo, which the Council specifically referenced in its May 16, 2012 and June 20, 2012 resolutions. See Bryant, supra, 309 N.J. Super. at 616.
The Maser Memo is relatively short, but it provides a reasoned explanation for the author's conclusion that the water and sewer systems are more than fifty years old and are in need of significant repairs. It appears undisputed that the area is subject to periodic flooding and the combined sanitary sewer system is inadequate to prevent flood water and sewage from backing up into the local streets during heavy rainstorms. In addition, the water system experiences a number of water main breaks and failures that cause water interruptions for the residents of Hoboken. This is sufficient to justify a rehabilitation designation under N.J.S.A. 40A:12A-14(a).
At the February 12, 2012 planning board meeting, Craig Hermann, an expert witness, testified that the southwest area "floods constantly," and that the sanitary sewer storm system "is undersized," is "over 100 years old," and "could be improved with rehabilitation."
In affirming the order on appeal, we add the following comment. Plaintiffs argue that the flooding is due to the area's low elevation, that additional pumping stations are needed to alleviate flooding, and that the City's funds would be better spent on pumping stations than on tearing up the streets and replacing the old pipes. In their brief, defendants assert that plaintiffs' arguments are premature, because the mechanics of improving the water and sewer systems will be addressed when the Council considers a redevelopment plan. See N.J.S.A. 40A:12A-7. Defendants state that there will be a public hearing to consider the plan, and any objectors will be able to present evidence as to whether the plan would be effective. In response to our questions at oral argument, defendants agreed that, in the context of a hearing on the redevelopment plan, plaintiffs will have the right to introduce evidence that the plan should include more pumping stations, in addition to, or in lieu of, any other specific approaches proposed in the plan.
Plaintiffs rely in part on a "Southwest Hoboken Flooding Analysis" report prepared by CH2M HILL. The report documented that the area has frequent flooding and recommended several methods to prevent future flooding, including building pumping stations and raising the elevation of local roads. The report did not address repairs to, or replacement of, the water and sewer pipes, specifically noting that the subject was outside the scope of the report.
--------
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION