HARTZ MOUNTAIN INDUSTRIES, INC. VS, NEW JERSEY SPORTS & EXPOSITION AUTHORITY (NEW JERSEY SPORTS & EXPOSITION AUTHORITY)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 16, 2020
• Docket: A-3767-18T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3767-18T1

HARTZ MOUNTAIN INDUSTRIES, INC.,

Appellant,

v.

NEW JERSEY SPORTS & EXPOSITION AUTHORITY,

Respondent. __________________________

Argued telephonically May 28, 2020 – Decided July 16, 2020

Before Judges Fuentes, Haas and Enright.

On appeal from the New Jersey Sports & Exposition Authority, Resolution No. 2019-07.

Thomas Joseph Trautner, Jr. argued the cause for appellant (Chiesa Shahinian & Giantomasi PC, attorneys; Thomas Joseph Trautner, Jr., Brigitte M. Gladis James Robert Hearon and Ronald Lawrence Israel, on the briefs).

Nicholas G. Seminoff, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Nicholas G. Seminoff, on the brief).

PER CURIAM

On February 5, 2015, the Legislature passed the Hackensack

Meadowlands Agency Consolidation Act (the Act), N.J.S.A. 5:10A-1 to 5:10A-

85, to, inter alia, consolidate the New Jersey Sports and Exposition Authority

[NJSEA] and the New Jersey Meadowlands Commission, "the two agencies with

the common interest of promoting the economic growth of the meadowlands and

northern New Jersey[.]" N.J.S.A. 5:10A-2(h). From that date forward, "any

reference in any law, rule, regulation, order, contract, or document to the

Hackensack Meadowlands Development Commission or the New Jersey

Meadowlands Commission shall mean and refer to the [NJSEA]." N.J.S.A.

5:10A-4.

In November 2018, Dredge Management Associates, LLC, (Dredge

Management) submitted an application for a zoning certificate to the NJSEA to

clear and grub an undeveloped 138-acre parcel located on Block 227, Lot 9

(Mori Tract) of the Hackensack Meadowlands District (District). Dredge

Management's purpose was to investigate the feasibility of constructing a large-

scale development on this site. On March 21, 2019, the Board of Commissioners

A-3767-18T1 2 of the NJSEA passed Resolution 2019-07 and declared that the development of

the Mori Tract was a "vital project" under N.J.S.A. 5:10A-11(f).1

Hartz Mountain Industries Incorporated (Hartz) appeals from the NJSEA's

decision to pass this resolution, arguing the designation of the Mori Tract's

development as a "vital project" based only upon a zoning certificate application

limited to clearing and grading the site is arbitrary, capricious, and

unreasonable. Stated differently, an undertaking that involves only clearing and

grading a site is not a "project" within the meaning of N.J.S.A. 5:10A-11(f). In

response, the NJSEA argues the statute's plain language does not require "a

formal application for development before it may declare future development

projects as vital projects."

Based on the record presented by the parties and mindful of prevailing

standards of review together with this land's troubled environmental history, we

affirm.

1 Pursuant to N.J.S.A. 5:10A-11(f), the NJSEA has "sole jurisdiction over any project it deems, in its sole discretion, to be vital to the public safety, general welfare, development, or redevelopment of the [D]istrict."

A-3767-18T1 3 I

The Mori Tract is an undeveloped 138-acre parcel located within the

District.2 The Mori Tract is primarily comprised of tidal wetlands and open

waters. To the west of the Mori Tract is Harmon Meadow's mixed-use

commercial development and Park Plaza Drive. Paterson Plank Road, "a major

transportation corridor connector between Route 1 & 9/Tonnele Avenue and

Route 3," is located to the south of the Mori Tract.

Currently, the Mori Tract is subject to two unresolved NJSEA zoning

violations relating to illegally-contaminated fills. One illegal fill area "is located

on the upland portion of the site[,]" and the other is located in a northeasterly

portion of the property, within the environmental conservation zone, where tidal

wetlands exist. The New Jersey Department of Environmental Protection

(NJDEP) and the United States Army Corps of Engineers issued separate

violations pertaining to these illegal fills.

Inspections conducted by the NJDEP in 2011 and 2012 indicated that

approximately "24,000 to 33,000 cubic yards of solid waste, consisting of

crushed concrete, cinderblocks, crushed asphalt . . ." and other materials were

2 N.J.S.A. 5:10A-3 defines "[D]istrict" as "the area delineated within section [N.J.S.A.] 5:10A-5." A-3767-18T1 4 present at this site without any authorization. The inspection also disclosed an

unresolved NJDEP violation from the 1980s stemming from "a large volume of

illegally-placed asbestos waste on the site, estimated to be in excess of 2,000

cubic yards."

On July 18, 2018, Dredge Management entered into a ninety-eight-year

long term lease agreement with the Mori Revocable Trust to develop 155 acres

of vacant land. The Mori Tract was included in this lease agreement. Under

this lease agreement, Dredge would have and hold the Mori Tract until July 17,

2116. Dredge Management filed a "zoning certificate/occupancy certification

application" previously with the NJSEA on November 5, 2018, requesting

permission to perform "minor site improvement[s]" upon the Mori Tract by

"[c]learing, grubbing, [and] grading" the property. Dredge Management also

created a Site Plan depicting the Mori Tract and a preliminary plan for future

development of this property.

In a letter dated November 16, 2018 addressed to Sara Sundell, the

NJSEA's Chief Engineer and Director of Land Use Management, the consulting

engineers retained by Dredge Management provided the following description

of the scope of the project:

Dredge is investigating development opportunities for the property. As you may be aware, the southernmost

A-3767-18T1 5 portion of the property in the RC zone of approximately 34 acres is covered with upland vegetation as a result of it being above the flood hazard elevation associated with Cromakill Creek. As a first step towards the development of the property, Dredge has determined to clear the property of vegetation, grub the site and generally grade the property including an existing outcrop of historic fill. There are no plans at this time to import fill to the site.

[(emphasis added).]

Before the NJSEA convened to assess the merits of Dredge's project,

Hartz submitted a letter opposing the project and objecting to the

characterization of the Mori Tract development as a "vital project." Hartz

argued the NJSEA was about to conduct a vital project assessment before

Dredge Management submitted a formal project application. According to

Hartz, "[n]othing submitted with this application confirms the nature of the

ultimate development contemplated by Dredge Management . . . and nothing

commits Dredge Management . . . to any particular project."

The NJSEA conducted a "vital project assessment" on February 21, 2019

to determine if the "minor site improvements" to be performed by Dredge

Management constituted a "vital project" pursuant to N.J.S.A. 5:10A-11(f). In

a memorandum provided to the NJSEA Board Members, Sundell, and Senior

Vice President/COO Christine A. Sanz described the Criteria for Designation of

A-3767-18T1 6 Vital Projects within the District. Sundell and Sanz explained that pursuant to

N.J.S.A. 5:10A-11(f), the NJSEA maintains sole jurisdiction over certain vital

projects that meet one or more of the following criteria:

A. Projects that enhance public safety.

B. Projects that promote the general welfare.

C. Projects that have a substantial impact on the environment.

D. Development projects of regional economic importance.

E. Development projects with regional impacts on flood control, stormwater infrastructure and/or other critical infrastructure.

F. Development projects with significant regional traffic/transportation impacts.

G. Redevelopment projects within a District redevelopment area.

The NJSEA determined that Dredge Management's development plan

satisfied all these criteria, except factor G. The Commissioners found Dredge

Management's development project would: enhance public safety and benefit

the environment; finally resolve the Mori Tract's long-standing violations;

remediate an illegally placed fill; and cap a historic fill. It would also promote

the general welfare by eliminating an environmentally compromised site and

A-3767-18T1 7 generate economic development. Further, the Commissioners found Dredge

Management's development on the upland portion of the Mori Tract would

economically benefit Secaucus because it would create permanent jobs and

temporary construction jobs.

In the brief submitted on behalf of the NJSEA, the Attorney General points

out the inconsistency of Hartz's position in this case. Although the Mori

Property remains undeveloped, Hartz developed a significant portion of the

neighboring property it owned under an April 17, 2003 conditional zoning

certificate which authorized the construction of a Wal-Mart, a Sam's Club, and

other related on-site improvements west of Cromakill Creek. Among the

conditions imposed to approve this development, Hartz is required to permit a

"connection from its approximately sixty-five-acre mixed-use property at

Harmon Meadow to the adjacent Mori Property if and when the Mori Property

was ever developed."

On March 21, 2019, the NJSEA's Commissioners met to consider

comments from the public and NJSEA staff on the question of whether it should

exercise its discretionary authority under N.J.S.A. 5:10A-11(f) and assert sole

zoning jurisdiction over the development of the Mori Tract. Hartz's

representative attended this meeting and again raised the concerns expressed in

A-3767-18T1 8 its objection letter. The Commissioners approved Resolution 2019-07 and

classified the Mori Tract's development as a "vital project" under N.J.S.A.

5:10A-11(f).

II

As an appellate court, our scope of review of a decision made by an

administrative agency is limited. Russo v. Bd. of Trs., PFRS, 206 N.J. 14, 27

(2011). We are bound to uphold an agency's quasi-judicial decision "unless

there is a clear showing that it is arbitrary, capricious, or unreasonable, or that

it lacks fair support in the record." Ibid. (quoting In re Herrmann, 192 N.J. 19,

27-28 (2007)). The Supreme Court established the following "three channels of

inquiry" to guide our appellate review:

(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.

[Herrmann, 192 N.J. at 28 (citing Mazza v. Bd. of Trs., 143 N.J. 22, 25 (1995)).]

Of particular relevance here, appellate courts should "accord substantial

deference to the interpretation an agency gives to a statute that the agency is

A-3767-18T1 9 charged with enforcing." Ge Solid State v. Director, Division of Taxation, 132

N.J. 298, 306 (1993). We also apply an enhanced deferential standard of review

when the agency's decision involves "predictive or judgmental determinations"

that implicate the agency's administrative expertise. In re Proposed Quest

Academy Charter School of Montclair Founders Group, 216 N.J. 370, 389

(2013).

When we construe a statute, we give the words used by the Legislature

"their ordinary meaning and significance" and read all the relevant parts together

"to give meaning to the whole of the statute." Nicholas v. Mynster, 213 N.J.

463, 480 (2013). If reading the plain language of the statute "leads to a clear

and unambiguous result, then the interpretive process is over." TAC Associates

v. New Jersey Dept. of Environmental Protection, 202 N.J. 533, 541 (2010).

This approach allows us to "construe the statute sensibly and consistent with the

objectives that the legislature sought to achieve." Nicholas, 213 N.J. at 480. We

reverse an agency's determination only when it "flout[s] the statutory language

and undermine[s] the intent of the legislature." Ge Solid State, 132 N.J. at 306.

Pursuant to N.J.S.A. 5:10A-11(a), a constituent municipality located

within the District that adopts the NJSEA's "master plan, zoning regulations,

codes, and standards shall review and approve applications for the development,

A-3767-18T1 10 improvement, redevelopment, construction, or reconstruction on land in the

[D]istrict." Although certain municipalities retain the authority to approve or

deny these applications, the NJSEA may assert "sole jurisdiction over any

project it deems, in its sole discretion, to be vital to the public safety, general

welfare, development, or redevelopment of the [D]istrict." N.J.S.A. 5:10A-11(f)

(emphasis added). The Legislature defined "project" as "any application for

development, plan, work, or undertaking by the [NJSEA], constituent

municipality, or redeveloper, pursuant to the master plan or a redevelopment

plan." N.J.S.A. 5:10A-3(2)

Here, the NJSEA acted within its statutory authority by declaring the work

to be performed upon the Mori Tract a "vital project" under N.J.S.A. 5:10A-

11(f). A plain reading of N.J.S.A. 5:10A-3(2) "clear[ly] and unambiguous[ly]"

indicates that a formal application for a major development upon a parcel is not

required for a requested action to qualify as a "project." N.J.S.A. 5:10A-3(2);

Nicholas, 213 N.J. at 480; TAC Associates, 202 N.J. at 541. The statute defines

"project" broadly, allowing for the definition to encompass other "development,

plan, work, or undertaking." N.J.S.A. 5:10A-3(2); TAC Associates, 202 N.J. at

541.

A-3767-18T1 11 Dredge Management's application to grub, grade, and clear vegetation

from the Mori Tract qualifies as a "project" under this statute because Dredge

Management's requested actions qualify as a "development, plan, work, or

undertaking." N.J.S.A. 5:10A-3(2). Our legislature has not established a

minimum amount of development or work needed to qualify as a "development,

plan, work, or undertaking." Ibid. Thus, although they are "minor site

improvement[s]," Dredge Management's requested actions satisfy the

requirement to perform some sort of "development, plan, work, or undertaking"

for a "project” classification under N.J.S.A. 5:10A-3(2).

Additionally, Dredge Management's application qualifies as a project

because its requested actions are being done "[a]s a first step towards the

development of the [Mori Tract]." To be classified as a project, an applicant's

"development, plan, work, or undertaking" must be done "pursuant to the master

plan or a redevelopment plan." Ibid. Dredge Management's planned "minor site

improvement[s]" qualify as a "project" under N.J.S.A. 5:10A-3(2) because, as

explained in its application, these improvements are the first step towards

redeveloping the Mori Tract. Accordingly, the NJSEA properly exercised its

discretionary authority when it deemed the development of the Mori Tract a vital

project under N.J.S.A. 5:10A-11(f).

A-3767-18T1 12 Affirmed.

A-3767-18T1 13