Wisniewski v. Murphy

186 A.3d 321, 454 N.J. Super. 508
CourtNew Jersey Superior Court Appellate Division
DecidedMay 10, 2018
DocketDOCKET NOS. A–4689–16T2; A–4693–16T2; A–4698–16T2
StatusPublished
Cited by18 cases

This text of 186 A.3d 321 (Wisniewski v. Murphy) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wisniewski v. Murphy, 186 A.3d 321, 454 N.J. Super. 508 (N.J. Ct. App. 2018).

Opinion

CARROLL, J.A.D.

*324*513These consolidated appeals involve a challenge to decisions by two state agencies to finance a comprehensive renovation of the State Capitol complex. The agencies resolved to issue $300 million in bonds and to repay the bonds with rental payments pursuant to a lease of the State Capitol complex.

Plaintiff John S. Wisniewski, then a state legislator, filed a complaint challenging the agencies' actions on the basis that they violated the Debt Limitation Clause (DLC) of the New Jersey Constitution. At the time the complaint was filed, the bonds had already been sold and distributed into the marketplace. Consequently, the trial court dismissed the complaint as moot.

In No. A-4689-16, plaintiff appeals the court's determination that his complaint is moot. In Nos. A-4693-16 and A-4698-16, he appeals the final agency decisions. We agree the appeals are *514technically moot. Notwithstanding, we address the merits because the issue raised is a matter of significant public importance that is capable of repetition while evading review. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm the final agency decisions.

I.

The State House Complex (SHC) is composed of an annex plus two wings, the executive (ESH) and the legislative (LSH). ESH houses the offices of the governor, lieutenant governor, governor's counsel, state treasurer and executive staff members. Built in 1772, ESH is a four-story building that includes the most historic and oldest sections of the SHC. It contains historical and architectural pieces such as original wood wainscoting and plaster cornices, portraits, art work and historic objects, and is open to viewing by the public. ESH has not been comprehensively renovated since the 1950s, and it has significant structural problems.

N.J.S.A. 52:31-39(a) provides that the State Capitol Joint Management Commission (JMC) must:

(1) maintain, monitor and preserve the architectural, historical, cultural and artistic integrity of any completed project for the restoration, preservation and improvement of the State capitol complex and to safeguard any related artifacts, documents and objects;
(2) maintain custody of the State capitol complex, with exclusive jurisdiction with respect to its management and operation, including maintenance, repair, *325renovation, improvement, security, parking, furnishing, artifact displays, and space utilization; ....

Pursuant to N.J.S.A. 52:31-37, the JMC consists of eight members, four from the executive branch and four from the legislative branch.

On April 24, 2012, the JMC approved a $38 million exterior repair of ESH. The repairs were referred to as the "exterior envelope restoration." The State Division of Property Management and Construction (DPMC) made a request for proposals (RFP) for an architectural engineering firm and selected Nelson and Preservation Design Partnership, LLC (Nelson/PDP) to begin *515work on the envelope in 2013. The envelope repairs were not completed, however, because it became clear that "patchwork" repairs were not sufficient and a more comprehensive renovation was necessary. As of 2015, the repairs that were necessary in 2012 and 2013 had still not been completed.

On January 12, 2017, then-State Treasurer, Ford M. Scudder, reported to the Senate Economic Growth Committee about the need for a comprehensive restoration of ESH that included both exterior and interior repairs. On January 25, 2017, Nelson/PDP submitted a project overview noting the severe deterioration of ESH and proposing a comprehensive renovation. Nelson/PDP's plan proposed to address life safety issues, eliminate waste, and protect and restore the historic integrity of ESH.

On January 31, 2017, the JMC adopted a resolution authorizing a full renovation of the SHC. On April 25, 2017, Nelson/PDP submitted an extensive report detailing the deterioration, the necessary repairs, and the costs of the project. That same day, the JMC adopted a resolution to fully renovate the SHC at a price not to exceed $300 million, and also agreed to enter into a contract with the New Jersey Economic Development Authority (NJEDA) for the lease and leaseback of the SHC. The JMC authorized the State Treasurer to execute the lease and sublease agreements.

The cost of the renovation was $284 million, which included a historic renovation of ESH ($173 million) and modernizing and upgrading the building infrastructure of LSH ($20 million). The project also included $55 million for "contingencies."

Christopher Chianese was a member of the JMC and the Director of the DPMC, which oversees leasing, construction management and construction procurement on behalf of the State. According to Chianese, ESH had not been renovated after the 1950s and, by 2017, had deteriorated significantly. Exterior issues included roofing, inferior structural support, deteriorated windows, chimneys, skylights, foundational problems, HVAC problems, deteriorating cornices that permitted water infiltration, fire hazards, asbestos, and security concerns. Some of these problems *516required emergency repairs. After the JMC approved the renovation, the NJEDA was required to approve the project's financing.

The lease agreement provided that the JMC would lease ESH to the NJEDA for a term of thirty years for $1.00. The sublease agreement called for the JMC to sublease ESH back from the NJEDA. Debt service on the bonds sold by the NJEDA would be payable from the rent paid by the JMC pursuant to the sublease.

During the events in question, John J. Rosenfeld served as Director of the Bonds and Incentives Department for the NJEDA. Rosenfeld submitted a certification stating it is common practice to issue bonds secured by a lease agreement pursuant to which the State pays rent. In her capacity as Senior Vice president for Governance, *326Communications, and Strategic Initiatives at the NJEDA, Maureen Hassett described the process used in approving the bond resolution and the lease agreement.

On May 11, 2017, the NJEDA approved the State lease revenue bond resolution to fund the renovation (the bond resolution). The bond resolution authorized the sale of two sets of bonds: (1) State lease revenue refunding bonds 2017 Series A (the Series A bonds) and (2) State lease revenue bonds, 2017 Series B (the Series B bonds) (collectively, the bonds). The following statement appears on the face of the bonds:

Neither the State of New Jersey nor the JMC is obligated to pay and neither the faith and credit nor taxing power of the State of New Jersey is pledged to the payment of, the principal or redemption price, if any, of or interest on the bonds. The bonds are a special, limited obligation of the [NJEDA], payable solely out of the revenues or other receipts, funds or moneys of the [NJEDA]....

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Bluebook (online)
186 A.3d 321, 454 N.J. Super. 508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wisniewski-v-murphy-njsuperctappdiv-2018.