Jeanne Daly v. Exchange Place Alliance District Management Corporation

• Court: New Jersey Superior Court Appellate Division
• Decided: October 17, 2025
• Docket: A-4021-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4021-23

JEANNE DALY, POLISH AMERICAN STRATEGIC INITIATIVE, INC., and POLISH AMERICAN STRATEGIC INITIATIVE EDUCATIONAL ORGANIZATION, INC.,

Plaintiffs-Appellants,

v.

EXCHANGE PLACE ALLIANCE DISTRICT MANAGEMENT CORPORATION and JERSEY CITY PLANNING BOARD,

Defendants-Respondents. ________________________________

Argued September 16, 2025 – Decided October 17, 2025

Before Judges Gilson, Firko, and Perez Friscia.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2076-22.

Noah Botwinick argued the cause for appellants (Lieberman Blecher & Sinkevich, PC, attorneys; Stuart J. Lieberman, of counsel; Zoe N. Ferguson, on the briefs).

Donald M. Pepe argued the cause for respondent Exchange Place Alliance District Management Corporation (Scarinci & Hollenbeck, LLC, attorneys; Donald M. Pepe, of counsel and on the brief; Patrick T. Conlon, on the brief).

Santo T. Alampi (Law Office of Santo T. Alampi, LLC) argued the cause for respondent Jersey City Planning Board.

PER CURIAM

This appeal involves challenges to a renovation project at Exchange Place

Plaza in Jersey City. Plaintiffs Jeanne Daly, Polish American Strategic

Initiative, Inc., and Polish American Strategic Initiative Educational

Organization, Inc. filed an action in lieu of prerogative writs challenging the

decision of the Jersey City Planning Board (the Board) to recommend a publicly-

funded renovation project overseen by the Exchange Place Alliance District

Management Corporation (EP Alliance). Plaintiffs appeal from an order

dismissing their legal action with prejudice.

Because the renovation project has now been completed and because

plaintiffs are not seeking to dismantle the project, we hold that plaintiffs' claims

are moot, and we dismiss this appeal. Nevertheless, because plaintiffs' claims

involve a publicly-funded project, we have also reviewed plaintiffs' arguments.

A-4021-23 2 Having done so, we determine that the Board's recommendation was not

arbitrary, capricious, or unreasonable and none of plaintiffs' challenges warrant

a reversal of the Board's recommendation or further proceedings. We, therefore,

also affirm the order dismissing plaintiffs' complaint with prejudice.

I.

In 2016, the City of Jersey City (the City) enacted an ordinance creating

the Exchange Place Special Improvement District (the EP District), which

includes properties along the Hudson River and the Exchange Place Plaza.

Jersey City, N.J., Code § 69-71(A). The City also established the EP Alliance

as a public, non-profit corporation to manage the EP District. Additionally, the

City authorized the EP Alliance to undertake improvements designed to increase

the safety and attractiveness of the EP District. Jersey City, N.J., Code § 69-

74(L).

Prior to 2022, the pedestrian plaza at Exchange Place Plaza was an open

hardscape plaza used by pedestrians and motor vehicles. The plaza included the

Katyn Memorial, a statute memorializing the 1940 massacre of Polish military

officers and prisoners of war.

After consulting with various community organizations, the EP Alliance

proposed improvements to several properties, including the pedestrian plaza at

A-4021-23 3 Exchange Place Plaza (the Improvement Project). In mid-April 2022, the EP

Alliance applied to have the Board review the Improvement Project in

accordance with Section 31 of the Municipal Land Use Law. N.J.S.A. 40:55D -

31. Under Section 31, a planning board reviews applications by a public agency

that proposes to spend public funds on a project. The purpose of the review is

to determine if the project is consistent with the applicable master plan. N.J.S.A.

40:55D-31. In making its application to the Board, the EP Alliance provided

notice to property owners located within 200 feet of the proposed Improvement

Project.

The Board first considered the application on April 26, 2022. At that

public hearing, the Board heard testimony from Thomas Carman, a licensed

landscape architect, who had designed the Improvement Project. The EP

Alliance also presented testimony from Gabrielle Gornelli, a licensed civil

engineer.

Additionally, the Board heard testimony from Mallory Clark, a senior

planner for Jersey City. Clark opined that the Improvement Project was

consistent with the goals of the City's master plan. She also testified that the

Improvement Project would not make changes to the use of the pedestrian plaza

but would improve pedestrian safety.

A-4021-23 4 Finally, the Board heard comments from members of the public. Some

members of the public took issue with the design of the Improvement Project

because it included adding benches and landscaping that would obstruct access

to and views of the Katyn Memorial.

After hearing testimony and public comments, on April 26, 2022, the

Board voted to not recommend the Improvement Project. The Board as a whole

did not expressly state the reasons for its decision. Nevertheless, the Board

members who made comments concerning the Improvement Project, stated that

they were concerned with the design of the project and that benches and

landscaping would block access to and views of the monument.

Several days later, on April 29, 2022, the EP Alliance sent the Board a

letter requesting reconsideration of its decision. The EP Alliance asserted that

the Board had not properly considered the issue before it; that is, whether the

Improvement Project was consistent with the City's master plan. Instead, the EP

Alliance contended that the Board had based its decision on its view of the

design of the Improvement Project. The EP Alliance did not send new notices

to local property owners concerning its request for reconsideration.

On May 10, 2022, which was the Board's next scheduled public meeting,

the Board reconsidered its decision. That same day, Clark submitted a report to

A-4021-23 5 the Board addressing the consistencies between the Improvement Project and

the City's master plan.

At the May 10, 2022 Board meeting, both the Board's legal counsel and

the EP Alliance's legal counsel explained that it was the EP Alliance's view that

the Board's first vote had been focused on design issues, while the proper focus

was whether the Improvement Project was consistent with the City's master plan.

The Board did not hear new testimony. Nor did the Board or any of its members

reference the new report submitted by Clark. Instead, a motion for

reconsideration was made and each Board member voted in favor of

reconsidering their prior position and recommending the Improvement Project

because it was consistent with the master plan.

The following month, on June 24, 2022, plaintiffs filed an action in lieu

of prerogative writs seeking to overturn the Board's May 10, 2022 decision to

recommend the Improvement Project. Thereafter, plaintiffs amended their

complaint. In their amended complaint, plaintiffs asserted three counts,

claiming that (1) the Board acted arbitrarily, capriciously, and unreasonably

because it made its decision to recommend the application based on information

not in the record and the public was not allowed to comment on the new

information; (2) the EP Alliance and the Board violated the Open Public

A-4021-23 6 Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, because there was no public

notice that the Board would reconsider its decision on May 10, 2024; and (3) the

EP Alliance violated the Municipal Law Use Law (MLUL), N.J.S.A. 40:55D-1

to -171, because it allegedly changed its plans for the Improvement Project and

did not present those new plans to the Board for review.

On March 19, 2024, the trial court conducted a review of the Board's

record and heard arguments from counsel. As part of the materials submitted to

the court, plaintiffs sent an expert report, dated February 20, 2023, from Carlos

Rodrigues (the Rodrigues report).

On July 12, 2024, the trial court issued a final order (1) finding that the

EP Alliance had not violated the OPMA; (2) sustaining the decision of the

Board; and (3) dismissing the Law Division action with prejudice. The trial

court supported its ruling with an oral decision read into the record on July 12,

2024.

The trial court found that plaintiffs did not demonstrate that the Board's

decision to recommend the project was arbitrary, capricious, or unreasonable.

In that regard, the court noted that the Board did not consider any evidence or

testimony at the May 10, 2024 hearing. The trial court also reasoned that the

A-4021-23 7 testimony given at the April 26, 2024 hearing was sufficient to support the

Board's recommendation.

Additionally, the trial court found that neither the Board nor the EP

Alliance had violated the OPMA. In reaching that conclusion, the court rejected

plaintiffs' argument that notice was required under the MLUL. Instead, the court

pointed out that the May 10, 2024 hearing was a regularly scheduled meeting,

and the Board had previously published a notice of its regularly scheduled

meetings for that year.

Plaintiffs now appeal from the Law Division's July 12, 2024 order.

Plaintiffs did not seek a stay of the Improvement Project, and the project has

now been completed.

II.

On appeal, plaintiffs raise six main arguments. They contend that the trial

court erred in (1) not considering whether the City's senior planner, Clark, had

offered a net opinion; (2) not addressing the Rodrigues report; (3) misstating

that the Board relied on testimony from a professional planner when no planner

provided testimony; (4) not addressing that the Board had considered

"extraneous evidence" at its May 10, 2024 meeting, including the April 29, 2022

letter from the EP Alliance and the supplemental report from Clark; (5) not

A-4021-23 8 considering the Board's authority to approve a private access road as part of the

Improvement Project; and (6) not considering whether the EP Alliance was

required to send notice of its request for reconsideration.

Having reviewed the record and the applicable law, we hold that plaintiffs'

arguments are moot because the Improvement Project has been completed. We

also, however, address plaintiffs' arguments because they involve a challenge to

the use of public funds and similar disputes may arise in the future. See State

v. Cassidy, 235 N.J. 482, 491 (2018) (explaining that courts "will entertain a

case that has become moot when the issue is of significant public importance

and is likely to recur") (quoting State v. Gartland, 149 N.J. 456, 464 (1997)).

We further hold that plaintiffs failed to show that the Board acted arbitrarily,

capriciously, or unreasonably in recommending the Improvement Project and

there are no grounds warranting remanding this matter for further proceedings.

A. The Relief Sought On This Appeal Is Moot.

Plaintiffs asked us to remand this matter to the Law Division for a

"complete assessment of all legal issues raised" in the trial court. Plaintiffs

concede that they are not requesting the EP Alliance to take down or dismantle

any part of the Improvement Project. Indeed, they acknowledge that "the

Board's [Section 31] decision was not binding on" the EP Alliance and the EP

A-4021-23 9 Alliance "could have continued to build the project" without the Board's

recommendation.

Plaintiffs' concessions are consistent with well-established law. Under a

Section 31 review, the Board evaluates a proposed capital improvement project

and makes a recommendation on whether it is consistent with an applicable

master plan. N.J.S.A. 40:55D-31. The Board's recommendation is not binding

on a public agency and that agency may accept or reject the Board's

recommendation. See Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of

Clifton, 409 N.J. Super. 389, 426 (App. Div. 2009) (construing N.J.S.A. 40:55D-

31 and holding that "planning board's recommendations are non-binding");

Ocean Cnty. Utils. Auth. v. Plan. Bd. of Berkeley, 221 N.J. Super. 621, 631

(Law Div. 1987) (explaining that the purpose of a Section 31 review is to allow

a public agency to consider a planning board's recommendations concerning

adjustments or modifications to a publicly funded project to make them

consistent with the master plan).

Given that the Board's recommendation was non-binding and given that

the Improvement Project has now been completed, we hold that plaintiffs' appeal

is moot. "Mootness is a threshold justiciability determination rooted in the

notion that judicial power is to be exercised only when a party is immediately

A-4021-23 10 threatened with harm." Stop & Shop Supermarket Co. v. Cnty. of Bergen, 450

N.J. Super. 286, 291 (App. Div. 2017) (quoting Betancourt v. Trinitas Hosp.,

415 N.J. Super. 301, 311 (App. Div. 2010)). "An issue is 'moot when [a court's]

decision sought in a matter, when rendered, can have no practical effect on the

existing controversy.'" Redd v. Bowman, 223 N.J. 87, 104 (2015) (quoting

Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App. Div.

2011)). Accordingly, "courts will not decide cases in which the issue is

hypothetical, [or] a judgment cannot grant effective relief[.]" Stop & Shop

Supermarket Co., 450 N.J. Super. at 291 (alteration in original) (quoting Cinque

v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993)).

Plaintiffs are not seeking to have us, the Law Division, or the Board, direct

the EP Alliance to tear down or modify the Improvement Project. Consequently,

they are not asking for relief that can have any practical effect. We, therefore,

dismiss this appeal as moot.

B. Plaintiffs' Substantive Arguments.

Although we have held that this appeal is moot, we will nevertheless

address plaintiffs' arguments because they relate to a publicly funded project

and are capable of repetition if further renovations are made to the pedestrian

A-4021-23 11 plaza. See Cassidy, 235 N.J. at 491. Therefore, the public has an interest in

having the issues addressed on their merits.

Planning board decisions "enjoy a presumption of validity, and a court

may not substitute its judgment for that of the [B]oard unless there has been a

clear abuse of discretion." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013)

(citing Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment, 172 N.J. 75, 81 (2002)).

Accordingly, "courts ordinarily should not disturb the discretionary decisions of

local boards that are supported by substantial evidence in the record." Lang v.

Zoning Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).

The party challenging the actions of a planning board must demonstrate

that the board acted arbitrarily, capriciously, or unreasonably. Dunbar Homes,

Inc. v. Zoning Bd. of Adjustment of Franklin, 233 N.J. 546, 558 (2018) (quoting

Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551 (2015)); Ten Stary Dom

P'ship v. Mauro, 216 N.J. 16, 33 (2013) (citing Smart SMR of N.Y., Inc. v.

Borough of Fair Lawn Bd. of Adjustment, 152 N.J. 309, 327 (1998)). "Even

when doubt is entertained as to the wisdom of the [Board's] action, or as to some

part of it, there can be no judicial declaration of invalidity in the absence of clear

abuse of discretion . . . ." Kramer v. Bd. of Adjustment, 45 N.J. 268, 296-97

(1965).

A-4021-23 12 None of plaintiffs' arguments demonstrate that the Board acted arbitrarily,

capriciously, or unreasonably. Nor do those arguments support a remand to the

Law Division or to the Board for further proceedings.

Plaintiffs first argue that the Board improperly relied on a net opinion

from the senior planner, Mallory Clark. In that regard, plaintiffs argue that

Clark's opinion of whether the improvement Project was consistent with the

master plan was not sufficiently supported by her testimony.

A planning board does not need expert testimony to evaluate whether a

project is consistent with a master plan. See Klug v. Bridgewater Twp. Plan.

Bd., 407 N.J. Super. 1, 13 (App. Div. 2009) (explaining that "a planning board

is not required to accept the testimony of any expert"). The Board is presumed

to be familiar with a master plan, which it helped to develop and which it

regularly reviews. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,

140 N.J. 366, 383 (1995) (stating that a board's consistency determination

regarding the master plan is "entitled to deference and great weight").

Therefore, Clark's testimony was not necessary, but it did support the Board's

own evaluation.

Next, plaintiffs contend that the trial court erred in not considering the

Rodrigues report. The Rodrigues report was not part of the record before the

A-4021-23 13 Board. Instead, plaintiffs only submitted that report to the trial court. Indeed,

the report was prepared in February 2023, well after the Board made its decision

on May 10, 2022.

We are not persuaded by plaintiffs' argument that the Rodrigues report

was prepared and submitted to rebut the net opinion of Clark's testimony on

April 26, 2022 or her supplemental report sent to the Board on May 10, 202 2.

The simple fact is that the Rodrigues report was not submitted to the Board and

there are no grounds for holding that the trial court erred in not considering it

and not remanding the matter for further consideration by the Board.

We are also unpersuaded by plaintiffs' argument that the trial court

committed reversible error by stating that there was testimony from a

professional planner when the testimony was from a licensed architect.

Plaintiffs do not cite any authority requiring the Board to hear testimony from a

professional planner at a Section 31 review. The trial court was apparently

referencing the testimony by Carman, a licensed landscape architect. That

reference does not undercut the court's rationale for finding the Board acted

reasonably in recommending the Improvement Project.

Plaintiffs next argue that the Board improperly considered extraneous

material at its May 10, 2022 hearing. Plaintiffs point to Clark's supplemental

A-4021-23 14 report, which was submitted on May 10, 2022, and to the information and

arguments made in the April 29, 2022 letter from the EP Alliance. A review of

the transcript from the hearing on May 10, 2022 confirms that the Board did not

discuss Ms. Clark's supplemental report. Indeed, the Board's chairperson

expressly stated that the Board would not consider new evidence or testimony

and therefore did not need further comments from the public. The Board's

proceedings do not demonstrate any grounds for reversal.

Plaintiffs also argue that the Board did not have authority to approve a

private access road as part of the Improvement Project. A Section 31 review is

not a site-plan review. Compare N.J.S.A. 40:55D-31, with N.J.S.A. 40A:12A-

13, and N.J.S.A. 40:55D-37(a). Instead, as already explained, a Section 31

review is limited to considering whether a public agency's plan to use public

funds to make improvements is consistent with an applicable master plan.

Plaintiffs have made no showing that the access road is inconsistent with the

master plan.

Furthermore, the City has expressly authorized the EP Alliance to address

motor vehicle traffic in the EP District. See Jersey City, N.J., Code §2-4. Thus,

to the extent that plaintiffs seek to argue that the EP Alliance did not have

A-4021-23 15 authority to propose a private access road as part of the Improvement Project,

that contention is not supported by the record.

Finally, plaintiffs argue that the EP Alliance should have sent notices to

property owners within 200 feet of the project when it asked the Board to

reconsider its decision on May 10, 2022. The MLUL delineates when public

notice of a hearing is required. See N.J.S.A. 40:55D-12(a). The MLUL does

not require public notice when a board conducts a Section 31 review.

Just as critically, the Board had previously published notifications of

when it would be conducting public meetings in 2022. There was public notice

that the Board had a regular scheduled meeting on May 10, 2022. Thus, there

was no showing that the Board or the EP Alliance violated any part of OPMA.

III.

In summary, we dismiss this appeal as moot. Alternatively, we hold that

the Board did not act arbitrarily, capriciously, or unreasonably in recommending

the Improvement Project. In that regard, we note that the Board's

recommendation did not include any suggested changes to make the

Improvement Project more compatible with the Jersey City master plan.

Dismissed.

A-4021-23 16