Underwood Props., LLC v. Planning Bd. of Hackensack

Decision Date17 July 2020
Docket NumberDOCKET NO. A-5420-18T3
CourtNew Jersey Superior Court — 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 Messano and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7889-17.

Leonard E. Seaman argued the cause for appellant (Law Offices of Richard Malagiere, PC, attorneys; Richard Malagiere, of counsel; Leonard E. Seaman, of counsel and on the briefs).

Mark J. Semeraro argued the cause for respondent 22 W. Camden Street Hackensack, LLC (Kaufman Semeraro & Leibman LLP, attorneys; Mark J. Semeraro, of counsel and on the brief).

Joseph L. Mecca, Jr., attorney for respondent Planning Board of the City of Hackensack (Joseph L. Mecca, Jr., and Linda F. Kitz, of counsel and on the brief).


Defendant 22 W. Camden Street Hackensack LLC (Camden) submitted a development application to the City of Hackensack Planning Board (the Board) proposing construction of a six-story, multi-family residential building on property that currently contained a fully paved parking lot. The property was located within Hackensack's 321 Main Street Redevelopment Plan area and the Downtown Rehabilitation Area Zoning District. The application sought relief from certain bulk zoning regulations, as well as preliminary and final site plan approval.

On July 30, 2017, Camden published notice that its application would be heard at the August 9, 2017 Board meeting. Regarding parking, the notice specified that Camden proposed a total of eighty-two parking spaces, seven of which were not in an enclosed parking garage, but, rather, were on a nearby street. Six of the indoor spaces were "tandem [parking] spaces," which required a variance, and Camden also sought variances from the requirements for parkingspace dimensions and parking aisle width, as well as other variances. The notice stated that the application was on file and available for inspection at the Board's offices.

Camden's proposed parking plan had been scrutinized by the Board's retained planning and engineering experts, and their extensive comments were contained in two reports to the Board and served on Camden. The planner noted, for example, that on-street parking was contrary to the redevelopment plan and might impact potential development by a designated redeveloper of nearby property.

On the scheduled meeting date, counsel for Camden appeared at the Board meeting and requested an adjournment. The Board's minutes reflect that it announced the application would be considered at its September 2017 meeting without need for any further notice. In the interim, on August 24, 2017, one of Camden's principals met with Hackensack's mayor, Deputy Mayor, and Director of Redevelopment, all members of the Board. The City's planner was also present.

On September 7, 2017, Camden appeared before the Board and presented testimony regarding its application. During the hearing, Board members raised concerns about the parking plan, particularly as to the size of parking stalls andproposed on-street parking. The Board's chairman asked about alternatives that did not include on-street parking. Charles Olivo, an engineer retained by Camden, introduced an alternative parking plan, and counsel for Camden stated the alternative plan "took to heart what the concern was for the city[,]" which he later characterized as issues contained in the experts' review reports. The Board unanimously approved the application, including "alternative B to the parking layout[.]" On October 11, 2017, the Board passed a resolution memorializing its approval of the site plan and bulk variances.

Plaintiff, the owner of neighboring property, filed a complaint in lieu of prerogative writs, challenging the Board's approval. Plaintiff specifically alleged the Board's action was arbitrary, capricious and unreasonable, violated provisions of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, Camden's notice was defective under the MLUL, and the August 24 meeting violated and MLUL and the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. Camden and the Board filed responsive pleadings. The case management order that the judge entered denied plaintiff's "discovery requests."1

In the interim, plaintiff had issued subpoenas duces tecum and notices of deposition to non-parties Edward Decker and Jerome Lombardo, owners of nearby property, seeking any correspondence related to the development application. Camden moved to quash the subpoenas. Plaintiff provided the court with a certification from Decker, who said that he had conversations with Camden's principal who: 1) confirmed the August 24 meeting with city officials; and, 2) advised that Hackensack would not consider expanding the redevelopment area to facilitate Camden's possible purchase of Decker's property. The judge heard oral argument on the motion to quash and entered an order granting that relief.2

Plaintiff moved to amend the case management order by relying on responses it received to a request made pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13. The responses included emails confirming, among other things, the city officials' attendance at the August 24 meeting. In opposition, Camden submitted a certification from its principal, who stated the meeting was unrelated to the application.

The judge denied plaintiff's motion and precluded further discovery; however, she ordered that the three Board members who attended the meeting and Camden's principal submit certifications. The Board complied and filed three certifications that are essentially identical. In each, the municipal official stated the August 24 meeting "concerned the terms of the Redevelopment Agreement, the Long-Term Tax Exemption Agreement (PILOT), and the availability of off-street parking with the potential for a PILOP agreement (i.e. a Payment in Lieu of Parking agreement)."

At trial, after considering oral argument, the judge entered judgment affirming the Board's action and dismissing plaintiff's amended complaint. In a comprehensive written opinion, she found that "the Board's finding of adequate notice, and the Board hearing Camden's modified [parking] plan, are supported by the record and satisfied the MLUL." The judge concluded the "alternate parking proposal . . . [submitted] during the hearing did not render it a new application[,]" and "the [B]oard . . . ha[d] the discretion to grant such relief as appropriate under the circumstances." Furthermore, the judge found the August 24 meeting did not violate the OPMA because "a majority of members [were not] present and Board business [was not] discussed." The judge ultimately determined the Board's actions were based on substantial reliable evidence and"were not arbitrary, capricious, or unreasonable[.]" She entered an order for judgment affirming the Board's decision and dismissing plaintiff's complaint. This appeal followed.

Plaintiff contends that the August 24 meeting was a violation of the OPMA, the MLUL required Camden's alternate parking plan to have been filed with the Board at least ten days prior to the hearing, and the judge committed reversible error by quashing the subpoenas of Decker and Lombardo and foreclosing depositions of the three Board members who attended the August 24 meeting. Plaintiff argues that without this discovery, the judge relied upon certifications to find critical facts regarding the subjects discussed at the August 24 meeting.

We have considered these arguments in light of the record and applicable legal standards. We affirm.


"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 Fed'n of Teachers v. Morell, 233 N.J. 566, 570 (2018) (citing N.J.S.A. 10:4-7). The statute "is liberally construed in favor of openness[.]" Burnett v. Gloucester Cty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 233 (App. Div.2009). The OPMA defines "[m]eeting" as a gathering where "the [then present] members of a public body" intend "to discuss or act as a unit upon the specific public business of that body." N.J.S.A. 10:4-8(b); see also S. Harrison, Twp. Comm. v. Bd. of Chosen Freeholders, 210 N.J. Super. 370, 375-76 (App. Div. 1986) ("Even though the purpose of a meeting is to discuss and not to vote on public business, the [OPMA] is applicable." (citing Allan-Deane Corp. v. Twp. of Bedminster, 153 N.J. Super. 114, 119 (App. Div. 1977))). However, a "[m]eeting" does not mean a gathering "attended by less than an effective majority of the members of a public body[.]" N.J.S.A. 10:4-8(b).

In addressing plaintiff's claimed OPMA violation, the judge reasoned that the August 24 meeting was not a meeting as defined by the OPMA, because only three of the nine-member Board were present. She also reasoned that the three municipal officials attending the meeting were members of the Board's Redevelopment Committee and had "dual role[s] and responsibilit[ies,]" because of their official positions.

Plaintiff's brief concedes that the August 24 meeting "does not, on its face, violate the [OPMA]." Nevertheless, plaintiff contends that the judge failed to consider whether Board members present at the August 24 meeting intentionally avoided a quorum while, at the same time, essentially conducted business byreviewing the application. See N.J.S.A. 10:4-11 ("No person or public body shall fail to invite a portion of its members to a meeting for the purpose of circumventing the provisions of this act."). Plaintiff...

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