SAMUEL TRIPSAS v. BOROUGH OF ORADELL (L-2854-19, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 25, 2022
• Docket: A-0649-20
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0649-20

SAMUEL TRIPSAS, and CITIZENS ACTION TO PRESERVE ORADELL,

Plaintiffs-Appellants,

v.

BOROUGH OF ORADELL, MAYOR AND COUNCIL OF THE BOROUGH OF ORADELL, PLANNING BOARD OF THE BOROUGH OF ORADELL, and MAYOR DIANNE C. DIDIO OF THE BOROUGH OF ORADELL,

Defendants-Respondents. _______________________________

Submitted November 8, 2021 – Decided March 25, 2022

Before Judges Messano and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2854-19.

AbrahamsenGrant, LLC, attorneys for appellants (Richard J. Abrahamsen, on the briefs). DeCotiis, Fitzpatrick, Cole & Giblin, LLP, attorneys for respondents (Jason M. Hyndman, of counsel and on the brief; Christian J. DiIenno, on the brief).

PER CURIAM

Shortly after the Court issued its opinion in In re Adoption of N.J.A.C.

5:96 & 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1

(2015) (Mount Laurel IV),1 the Borough of Oradell (Oradell) filed a declaratory

judgment action seeking to have its affordable housing plan declared sufficient

to meet its constitutional obligations. Three years later, in July 2018, Oradell

reached an agreement with intervenor Fair Share Housing Center (Fair Share)

that resulted in a conditional order of compliance approving the settlement and

plan. The order was subject to Oradell complying with certain conditions,

including that "[t]he Borough Planning Board . . . adopt and the Borough

Council . . . endorse a Housing [E]lement and Fair Share Plan consistent with

the minimum terms of the Settlement Agreement."

In November 2018, the Planning Board of the Borough of Oradell (the

Board) adopted a Housing Element and Fair Share Plan (HEFSP). In February

2019, the Board reviewed two proposed ordinances, Ordinances 19-03 and 19-

1 The latest of the Court's decisions implementing its decision in S. Burlington Cnty. NAACP v. Twp. of Mount Laurel, 67 N.J. 151 (1975). A-0649-20 2 04 (the Ordinances), to assure they complied with, or to otherwise identify

inconsistencies with, Oradell's Master Plan.

Oradell's governing body subsequently adopted the Ordinances.

Ordinance 19-03 amended Oradell's zoning regulations to create "Affordable

Housing 1 Residential Zone," and "Affordable Housing 2 Residential Zone."

One historic structure, the Van Buskirk House, was within the area rezoned

pursuant to Ordinance 19-03. Ordinance 19-04 also amended zoning regulations

to create a "Central Business District Overlay Zone," as anticipated in the

adopted HEFSP, running along both sides of Kinderkamack Road.

In 2010, the Board had adopted an Historic Preservation Plan Element

(HPPE) to its Master Plan, which identified historic buildings for preservation,

some of which were on, or in close proximity to, Kinderkamack Road. In 2016,

the Board's Master Plan Subcommittee considered, among other things, changes

to the zoning regulations in the Central Business District (CBD). Oradell's

mayor, Dianne C. Didio, participated as a member of the Subcommittee for

several months despite a disqualifying conflict of interest.

In May 2019, plaintiffs Samuel Tripsas, a resident and member of

Oradell's Historical Committee, and Citizen Action to Preserve Oradell, which

members included residents of Oradell, filed an amended complaint in lieu of

A-0649-20 3 prerogative writs in the Law Division. Plaintiffs sought to have the court declare

the Ordinances invalid because: violations of the Open Public Meetings Act

(OPMA), N.J.S.A. 10:4-6 to -21, and the mayor's disqualifying participation,

preceded their adoption; and, Ordinance 19-04 was inconsistent with the HPPE,

and Oradell's governing body failed to comply with N.J.S.A. 40:55D-62(a).

Following oral argument, the Law Division judge dismissed the

complaint. In a written statement of reasons, the judge found that Mayor Didio's

second term in office commenced in January 2016, and she sat as a member of

the Subcommittee until March 2017, when she recused herself because her

husband had "significant interests in property in the CBD zone." However, the

judge found there was "no evidence . . . the [m]ayor participated in the process

which resulted in" passage of Ordinance 19-04. The judge also concluded

because "meetings of . . . [the S]ubcommittee . . . did not constitute a quorum of

the . . . Board," there was no violation of OPMA.

The judge cited extensively to deposition testimony from Joseph Burgis,

Oradell's planner from 1997 to 2018, noting Burgis "refute[d] all the elements

of plaintiffs' case." Burgis acknowledged the Subcommittee conducted working

sessions but said "then the information was presented to the full . . . [B]oard" at

public meetings, including Saturday meetings. Burgis said 100–150 members

A-0649-20 4 of the public attended the meetings. Burgis also testified the mayor recused

herself "early in the process." Burgis said formulation of the HEFSP proceeded

separately from the Subcommittee's work, and multifamily housing was

permitted on the second floor of all retail businesses in the CBD prior to passage

of the Ordinances. The "overlay zone was a mechanism to address" Oradell's

"unmet need" for affordable housing and to comply with the 2018 settlement

with Fair Share.

The judge also cited the testimony of Mayor Didio, which was

corroborated by the testimony of Councilman Stephen Carnevale, a member of

the Subcommittee. The judge found the mayor had recused herself from

participation in Subcommittee meetings in March 2017, and had also recused

herself from settlement discussions with Fair Share.

The judge "f[ound] no evidence that [Oradell] adopted its ordinances in

violation of the OPMA . . . [and] no basis in law which would void Ordinances

19-03 and/or 19-04 on account of inconsistency with the [HPPE]." The judge's

September 25, 2020 order dismissed plaintiffs' complaint, and this appeal

followed.

Before us, plaintiffs reiterate the arguments made in the Law Division.

They contend the Ordinances were the product of "multiple violations" of the

A-0649-20 5 OPMA by the Subcommittee, and the mayor's "conflict of interest" tainted the

process, and her recusal did not purge the taint. Plaintiffs claim these alleged

violations of the OPMA require us to set aside the Ordinances. Plaintiffs also

contend the Ordinances are "inconsistent with the [HPPE]" of the Master Plan

and, since the governing body failed to comply with N.J.S.A. 40:55D -62(a), we

should declare the Ordinances void.

Having considered the arguments in light of the record and applicable

legal standards, we affirm.

I.

We begin by recognizing that to the extent plaintiffs challenge the Board's

approval of the HEFSP because it was the product of violations of the OPMA or

the mayor's disqualifying conflict, their complaint was untimely. Defendants

raised this issue in the Law Division, but the judge never addressed it.

"[P]ursuant to Rule 4:69-6(b)(3), a party seeking the court's review of 'a

determination of a planning board or board of adjustment' must commence its

action in lieu of prerogative writs within forty-five days of publication of the

memorializing resolution." Edison Bd. of Educ. v. Zoning Bd. of Adjustment

of Edison, 464 N.J. Super. 298, 308 (App. Div. 2020). Plaintiffs admittedly

failed to do so.

A-0649-20 6 Similarly, "[a] complaint alleging an OPMA violation must be brought

within forty-five days 'after the action sought to be voided has been made

public[.]'" Ibid. n.5 (second alteration in original) (quoting N.J.S.A. 10:4-15(a)).

"Constructive notice is the standard." Ibid. (quoting Jersey City v. State Dep't

of Env't Prot., 227 N.J. Super. 5, 22 (App. Div. 1988)). Plaintiffs never alleged

the Subcommittee violated the OPMA subsequent to the November 2018

passage of the HEFSP, and we discern no violation of the OPMA thereafter.

Plaintiffs contend that the clock did not begin to run on their claims of the

OPMA violations because the Subcommittee's meetings were held in "secret,"

without any subsequent publication of its actions as required by the OPMA.

However, the record contains the March 2016 minutes of the Board's public

meeting attended by the mayor. The minutes disclose her appointment to the

Subcommittee. At an earlier meeting of the Board, the mayor expressed her

concern about the CBD and voiced a desire to meet with the public about

properties along Kinderkamack Road. Surely, there was sufficient public notice

for plaintiffs to challenge in a timely fashion the mayor's participation in a Board

subcommittee based on her disqualifying conflict between March 2016 and her

self-imposed recusal in 2017.

A-0649-20 7 Plaintiffs seemingly claim that they could not challenge the meetings of

the Subcommittee because they were never made public until the Board

considered adoption of the HEFSP. We discern the argument is that the

meetings of the Subcommittee violated the OPMA, and the process thereafter,

although public, was tainted. While this does not make plaintiffs' challenge to

the Board's action timely, we address the issues presented for the sake of

completeness.

"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 Tchrs. 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 Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 233 (App.

Div. 2009) (citing N.J.S.A. 10:4-21). "Any party, including any member of the

public, may institute a proceeding in lieu of prerogative writ[s] . . . to challenge

any action taken by a public body on the grounds that such action is void for "

violating the statute. N.J.S.A. 10:4-15(b).

The OPMA prohibits a public body from holding a meeting "unless

adequate notice . . . has been provided to the public." N.J.S.A. 10:4-9(a). The

OPMA defines "[m]eeting" as a gathering where "the [then present] members of

A-0649-20 8 a public body" intend "to discuss or act as a unit upon the specific public

business of that body. Meeting does not mean or include any such gathering

. . . attended by less than an effective majority of the members of a public body

. . . ." N.J.S.A. 10:4-8(b).

In Kean Federation of Teachers, the Court noted that a public body's use

of subcommittees, which have meetings in advance of public meetings, are

common and "not fairly viewed as an inherent subterfuge to eschew public

discussion." 233 N.J. at 587. The OPMA does not apply to "informal or purely

advisory bodies with no effective authority," and "to be covered by the

provisions of th[e] act[,] a meeting must be open to all the public body's

members." N.J.S.A. 10:4-7. At the same time, the OPMA makes clear that "[n]o

person or public body shall fail to invite a portion of its members to a meeting

for the purpose of circumventing" the statute. N.J.S.A. 10:4-11.

Plaintiffs failed to demonstrate the meetings of the Subcommittee

consisted of a quorum of Board members, and their claims of unexpurgated taint

caused by the mayor's fourteen-month participation are mere speculation. Most

importantly, none of the Subcommittee's meetings resulted in formal or even

informal action that was not ultimately subject to exposure in the sunlight of

public meetings. See Neu v. Planning Bd. of Union, 352 N.J. Super. 544, 554

A-0649-20 9 (App. Div. 2002) (holding that private meeting of developer with mayor, board

member, and consultant did not violate the OPMA, and there was not "any action

. . . taken or decision made that was not the subject of subsequent public

hearings").

II.

Plaintiffs also contend the Ordinances must be set aside because they

conflict with the HPPE of the Master Plan, and the governing body never

fulfilled its obligation under N.J.S.A. 40:55D-62(a). We again disagree.

N.J.S.A. 40:55D-28(b) requires a master plan include two things: "[a]

statement of objectives, principles, assumptions, policies and standards upon

which the constituent proposals for the physical, economic and social

development of the municipality are based"; and "[a] land use plan element" that

includes several required items. N.J.S.A. 40:55D-28(b)(1) and (b)(2). The

statute then sets forth fifteen other discretionary elements, including a "housing

plan element," and an "historic preservation plan element." N.J.S.A. 40:55D-

28(b)(3) and (b)(10).

N.J.S.A. 40:55D-62(a) provides:

The governing body may adopt or amend a zoning ordinance . . . . Such ordinance shall be adopted after the planning board has adopted the land use plan element and the housing plan element of a master plan,

A-0649-20 10 and all of the provisions of such zoning ordinance or any amendment or revision thereto shall either be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements; provided that the governing body may adopt a zoning ordinance . . . which in whole or part is inconsistent with or not designed to effectuate the land use plan element and the housing plan element, but only by affirmative vote of a majority of the full authorized membership of the governing body, with the reasons of the governing body for so acting set forth in a resolution and recorded in its minutes when adopting such a zoning ordinance . . . .

[(Emphasis added).]

The governing body's failure to comply with the statute will result in

invalidation of the ordinance. Willoughby v. Wolfson Grp., Inc., 332 N.J.

Super. 223, 229–30 (App. Div. 2000).

Plaintiffs contend Ordinance 19-04, in particular, is inconsistent with the

HPPE of the Master Plan because it adopts the CBD Overlay in an area

previously recognized as deserving particular treatment given the proximity to

historic structures. The trial judge never directly addressed the issue.

However, defendants argue, and we agree, the plain language of N.J.S.A.

40:55D-62(a) imposes an obligation on the governing body to explain its reasons

for adopting a zoning ordinance, and approve the change by a majority vote,

only if the ordinance is inconsistent with the land use plan element or the

A-0649-20 11 housing plan element of the master plan. Plaintiffs have never asserted the

Ordinances were inconsistent with those two parts of the master plan.

We interpret the meaning of the provisions of the Municipal Land Use

Law, N.J.S.A. 40:55D-1 to -163, de novo. Shipyard Assocs., LP v. City of

Hoboken, 242 N.J. 23, 38 (2020) (citing 388 Route 22 Readington Realty

Holdings, LLC v. Twp. of Readington, 221 N.J. 318, 338 (2015)). We "first

consider[] 'the statute's plain language, ascribing to the words used "their

ordinary meaning and significance."'" Ibid. (quoting Murray v. Plainfield

Rescue Squad, 210 N.J. 581, 592 (2012)). When those words are clear and

unambiguous, we should give them "their literal significance, unless it is clear

from the text and purpose of the statute that such meaning was not intended."

Ibid. (quoting Turner v. First Union Nat'l Bank, 162 N.J. 75, 84 (1999)).

The plain language of N.J.S.A. 40:55D-62(a) requires the governing body

to explain its decision to adopt a new, or amend an existing, zoning regulation

if it is inconsistent with the land use plan element or the housing plan element

of the municipal master plan, a decision first made by the planning board

pursuant to N.J.S.A. 40:55D-26(a). See Myers v. Ocean City Zoning Bd. of

Adjustment, 439 N.J. Super. 96, 101–02 (App. Div. 2015) (noting governing

body may adopt an ordinance inconsistent with those two master plan elements

A-0649-20 12 by majority vote and with explanation of its reasons). The Legislature has not

required the governing body to do so regarding an inconsistency between the

proposed ordinance and any of the other discretionary elements of t he master

plan, including the HPPE. Plaintiffs have cited no authority to the contrary.

Nevertheless, it appears from the record the Board did review the

Ordinances for inconsistency with the Master Plan, and it concluded they were

consistent. "Such a determination by the Board is entitled to deference and great

weight." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366,

383 (1995).

Affirmed.

A-0649-20 13