SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0093-14T3

THE FOUR FELDS, INC., d/b/a

L. EPSTEIN HARDWARE CO., and

REASONABLE LOCK & SAFE CO. 

INC.,

Plaintiffs-Appellants,

v.

CITY OF ORANGE TOWNSHIP and

OAKWOOD TOWERS,

Defendants-Respondents.

____________________________________

Argued February 7, 2018 – Decided 

Before Judges Fuentes, Koblitz, and Suter.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-7982-

13.

Jeffrey S. Feld argued the cause for 

appellants.

Robert D. Kretzer argued the cause for 

respondent The City of Orange Township (Lamb 

Kretzer, LLC, attorneys; Robert D. Kretzer, 

on the brief).

Robert Beckelman argued the cause for 

respondent Oakwood Towers (Greenbaum, Rowe, 

NOT FOR PUBLICATION WITHOUT THE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.

August 2, 2018
2 A-0093-14T3

Smith & David, LLP, attorneys; Robert 

Beckelman, on the brief).

PER CURIAM 

Plaintiffs, the Four Felds, Inc., d/b/a L. Epstein Hardware 

Co. and Reasonable Lock & Safe Co. Inc., appeal the August 22, 

2014 order that granted summary judgment to defendant Oakwood 

Towers, dismissing plaintiffs' complaint against it, and a 

companion order that dismissed the complaint against defendant 

City of Orange Township (City). Plaintiffs' complaint challenged 

City Ordinance 39-2013, approved on September 17, 2013, that 

authorized the City to execute a financial agreement with Oakwood 

Towers for a tax exemption. Plaintiffs alleged that the City's 

action was arbitrary, capricious and unreasonable, that it 

exceeded the City's delegated authority, and that City officials 

violated their fiduciary duties. Plaintiffs also appeal the April 

16, 2014 case management order that denied their request for 

depositions and stated that the answer to the complaint filed by 

the City "shall not be an avenue for plaintiff[s] to assert 

frivolous litigation." We affirm the challenged orders.

Jeffrey S. Feld, Esq., on behalf of himself and his parents' 

businesses, has been in litigation with the City and various 

redevelopers for years. In a previous unpublished case, we 

commented on his mode of litigation, which applies equally here. 
3 A-0093-14T3

Feld v. City of Orange Twp. (Feld VI and VIII), Nos. A-3911-12 and 

A-4880-12 (App. Div. Mar. 26, 2015) (slip op. at 3-4).

Plaintiffs own and operate industrial hardware and locksmith 

businesses in the City. The companies and the property where they 

are located are owned by Robert and Judith Feld as individuals. 

On October 10, 2013, plaintiffs filed a 196-paragraph onecount complaint in lieu of prerogative writs against defendants, 

seeking to void Ordinance Number 39-2013, "An Ordinance of the 

City of Orange Township Authorizing the Execution of a Financial 

Agreement with Oakland Towers Granting a Tax Exemption" (the 

Ordinance). The complaint also asked for a declaratory judgment 

under the Long Term Tax Exemption Law (LTTEL), N.J.S.A. 40A:20-1 

to -22,1 citing specifically N.J.S.A. 40A:20-12, and for restraints 

enjoining the Ordinance. Defendants filed answers to the 

complaint. 

On June 27, 2014, Oakwood Towers filed a motion for summary 

judgment. The City filed a motion to dismiss the complaint on the 

same day. Plaintiffs opposed both motions. The trial court 

granted the motions on August 22, 2014, following oral argument, 

and dismissed plaintiffs' complaint. The court placed limited 

findings and conclusions on the record. 

 

1 Enacted by L. 1991, c. 431.
4 A-0093-14T3

Oakwood Towers is a limited-dividend housing association 

formed in August 1979, pursuant to the Limited-Dividend Non-Profit 

Housing Corporation or Association Law (LDL), N.J.S.A. 55:16-1 to 

-22, repealed by L. 1991, c. 431, § 20 (effective Apr. 1992). 

Since 1983, it has owned a 236-unit rental apartment complex in 

the City, the units of which were designated as low and very-low 

income-restricted affordable housing available exclusively for 

elderly and disabled residents. In 1977, the property was granted 

a tax abatement by resolution of the City, which specified that a 

housing project would be constructed, maintained and operated 

under the provisions of the LDL and the rules and regulations of 

the New Jersey Housing Finance Agency (NJHFA). Oakwood Towers 

would pay an annual charge for municipal services, in lieu of 

taxes, at an amount "not exceeding the tax on the property on 

which the development is located for the year in which a mortgage 

on the development is executed in favor of the N.J.H.F.A., or, an 

amount not exceeding [6.28%] of the annual gross revenues of the 

development."

On June 2, 1980, the City and Oakwood Towers executed a Tax 

Abatement Agreement (1980 Tax Abatement Agreement), providing that 

it "shall be effective on the date [Oakwood Towers] executes a 

first mortgage upon the development in favor of the NJHFA and 
5 A-0093-14T3

shall continue for a period of not more than fifty (50) years 

therefrom nor less than the term of the NJHFA mortgage." This tax 

exemption "appl[ied] only so long as [Oakwood Towers] or its 

successors and assigns and the development remain[ed] subject to 

the provisions of the . . . [LDL], the supervision of [the Public 

Housing and Development Authority (PHDA) of the Department of 

Community Affairs (DCA)] and subject to the NJHFA mortgage," but 

in any event, no longer than fifty years from the effective date 

of the exemption. If the tax exemption was terminated, the 

property "shall be taxed as omitted property in accordance with 

the law." The 1980 Tax Abatement Agreement recited that it was 

made "pursuant to the authority contained in Section 18 of the 

[LDL] (N.J.S.A. 55:16-18), Section 30 of the [Housing Finance 

Agency Law] (N.J.S.A. 55:14J-30),"2 and the December 6, 1977 

Resolution, and with the approval of the NJHFA. 

On March 16, 1983, Oakwood Towers and NJHFA entered into a 

"Housing Assistance Payments Contract" (HAP contract), approved 

by the United States Department of Housing and Urban Development 

(HUD), to provide Section 8 "housing assistance payments on behalf 

of [e]ligible [f]amilies" who leased units in the property. The 

 

2 Repealed by L. 1983, c. 530, § 48 (effective Jan. 1984).
6 A-0093-14T3

1983 HAP contract was in effect for twenty years but could be 

renewed for two five-year terms, or until March 2013.

Relevant here, on August 19, 2005, Oakwood Towers refinanced 

the mortgage for $11,500,000 through a Fannie Mae Multi-Family 

Mortgage. The New Jersey Housing and Mortgage Finance Agency 

(NJHMFA)3 and DCA approved the prepayment of the original loan. 

Oakwood Towers, NJHMFA, the PHDA and DCA also signed a "Deed 

Restriction and Regulatory Agreement" (2005 Deed Restriction) on 

the same date. Under the 2005 Deed Restriction, Oakwood Towers 

agreed to continue to be subject to NJHMFA policies and regulations 

regarding income, rents, tenant selection standards, income 

certification, the fair housing market and transfer of ownership 

until March 15, 2013. These "covenants, reservations and 

restrictions" were to run with the land. The mortgage instrument 

expressly referred to the 2005 "Deed Restriction and Regulatory 

Agreement." The HAP Contract was collaterally assigned to the 

lender and Fannie Mae under an assignment.

Prior to the refinancing, an assistant City attorney reviewed 

the earlier tax abatement, stating in a letter to Oakwood Towers' 

 

3 In 1983, the New Jersey Housing Finance Agency and the New 

Jersey Mortgage Finance Agency were combined into a single agency, 

the New Jersey Housing and Mortgage Finance Agency. L. 1983, c.

530, § 4.
7 A-0093-14T3

attorney on July 22, 2004, that the tax abatement would remain "in 

full force and effect after the refinancing." The letter noted 

that no resolution would be necessary because "the limiteddividend general partnership [Oakwood Towers] will not be changing 

and the transaction will be a 'simple refinancing of the 

property.'" Also, Oakwood Towers "will not be assigning the tax 

abatement to another entity."

In 2013, prior to the end of its HAP contract, Oakwood Towers 

asked the City to extend its tax abatement for another ten years, 

until 2023, to correspond with its requested extension of the HAP 

contract. The City approved Ordinance 39-2013 on September 17, 

2013. It allowed the City to provide a tax exemption to Oakwood 

Towers by authorizing the City to execute a financial agreement 

with Oakwood Towers for a long-term tax exemption under LTTEL "to 

provide a tax exemption for the provision of housing . . . by an 

urban renewal entity."

The Ordinance recited that Oakwood Towers agreed with the 

NJHMFA and the DCA that, "notwithstanding the satisfaction of the 

First Mortgage Loan, it continued [under the 2005 Deed Restriction] 

to be subject to applicable NJHMFA regulations for housing 

projects." The tax abatement was "critical" to Oakwood Towers' 

ability to maintain the project as low and very low-income housing
8 A-0093-14T3

for the elderly and disabled. Because the HAP contract was 

extended to March 2023, the Ordinance authorized the City's mayor 

to execute the financial agreement that would provide a ten-year 

tax exemption. That financial agreement would allow Oakwood Towers 

to continue to operate the project for the low and very-low income 

elderly and disabled. These commitments "would not be feasible" 

without the assistance of the tax abatement. The Ordinance also 

allowed for an increase in the annual service charge, which was 

"in the best interest of the City." The tax abatement was a 

"significant inducement" for Oakwood Towers to commit to the HAP 

program and operate as housing for low and very low income, 

disabled and elderly residents. According to the minutes, Jeffrey 

Feld was present at the September 17, 2013 meeting when the 

Ordinance was adopted, but he did not comment on the Ordinance.

On January 6, 2014, the City and Oakwood Towers signed a 

Financial Agreement for Long Term Tax Exemption (2014 Tax 

Exemption) where, under LTTEL, the City provided Oakwood Towers a 

ten-year tax exemption and Oakwood Towers was required to pay an 

annual service charge. The City found that the 2014 Tax Exemption 

would "benefit the City and the community" because it would 

"assur[e] the continued provision of safe, sanitary and quality 

low and very-low income affordable housing for elderly and disabled 

citizens." It found that the benefits of the exemption outweighed 
9 A-0093-14T3

the costs and that the exemption was "important" to the City to 

provide affordable housing because the exemption would "offset the 

costs of maintaining" the housing which otherwise would be "an 

impediment" to its continuation.

In its June 2014 motion to dismiss, the City argued the tax 

exemption under the 1980 Tax Abatement Agreement was still in 

effect when the Ordinance was approved. Oakwood Towers contended 

in its summary judgment motion that the 2014 Tax Exemption was 

authorized under either LDL or LTTEL. It argued that it relied 

on the City attorney's 2004 letter and on the NJHMFA's approval 

of the 2005 refinancing agreement. Oakwood Towers asserted it 

could not maintain the project without the tax exemption.

Plaintiffs opposed the motions, contending that the tax 

exemption ended either in 2005, when the property was refinanced, 

or 2011, when the NJHMFA's mortgage was set to mature. They 

contended that the City was entitled to take $6 million in 

"residual receipts" that had been placed in escrow.

Following oral argument on August 22, 2014, the trial court 

granted both motions and dismissed plaintiffs' complaint, noting 

that "the people" could rely on what a town official said. The 

court also said that it ruled previously "that city council members 

have no duty to answer questions." A citizen's sole remedy for a 
10 A-0093-14T3

council's refusal to answer questions was "to vote differently at 

the next election."

On appeal, plaintiffs argue that the court's orders are 

subject to de novo review; too much deference was accorded by the 

court to City Council; elected officials and attorneys were subject 

to a higher fiduciary standard of care; the court erred by excusing 

elected officials from answering questions about the tax 

exemption; the court abused its discretion in granting immunity 

to the City and its special counsel; and the court denied 

plaintiffs a level playing field. We affirm the challenged orders 

because there is no merit to plaintiffs' arguments.

We review a court's grant of summary judgment de novo, 

applying the same standard as the trial court. Conley v. Guerrero, 

228 N.J. 339, 346 (2017). Summary judgment must be granted if 

"the pleadings, depositions, answers to interrogatories and 

admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact challenged 

and that the moving party is entitled to a judgment or order as a 

matter of law." Templo Fuente De Vida Corp. v. Nat'l Union Fire 

Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-

2(c)). 

When a motion to dismiss a complaint under Rule 4:6-2(e) 

includes matters outside the pleadings that are not excluded by 
11 A-0093-14T3

the court, "the motion shall be treated as one for summary judgment 

and disposed of as provided by [Rule] 4:46." The language of Rule

4:6-2 "expressly provides that if any material outside the 

pleadings is relied on [for] a 4:6-2(e) motion, it is automatically 

converted into a summary judgment motion." Pressler & Verniero, 

Current N.J. Court Rules, cmt. 4.1.2 on R. 4:6-2 (2018). The 

submission of certifications serves to convert a Rule 4:6-2(e) 

dismissal motion into a motion for summary judgment. Nobrega v. 

Edison Glen Assocs., 167 N.J. 520, 526 (2001). Thus, we review 

the City's motion to dismiss as a summary judgment motion and use 

the same de novo standard for both motions.

There was nothing arbitrary, capricious or unreasonable about 

the City's adoption of Ordinance 39-2013. Actions of a municipal 

body are presumed valid and will not be disturbed without 

sufficient proof that the conduct was arbitrary, capricious or 

unreasonable. Witt v. Gloucester County Bd. of Chosen Freeholders, 

94 N.J. 422, 430 (1983). An ordinance will not be overturned by 

a reviewing court unless the objector challenging the ordinance 

can prove that the governing body's action was arbitrary, 

capricious or unreasonable. Grabowsky v. Twp. of Montclair, 221 

N.J. 536, 551 (2015). The burden of proof rests with the 

plaintiffs who challenge the municipal action. Price v. Himeji, 

LLC, 214 N.J. 263, 284 (2013). Here, there were no genuine issues 
12 A-0093-14T3

of material fact that precluded the entry of summary judgment 

orders dismissing this litigation. 

Plaintiffs argue that Oakwood Towers' tax abatement 

"terminate[d]" when the original NJHFA mortgage was extinguished, 

contending that "the trial court ignored clear and unambiguous 

statutory language." It is not clear what statutory language 

plaintiffs reference. Neither the LDL or the LTTEL required the 

expiration of this tax exemption. Under the LDL, the tax exemption 

could extend fifty years. It provided: 

Any exemption from taxation made pursuant to 

the provisions of this section shall not 

extend for a period of more than [fifty] years 

and shall only be effective during the period 

of usefulness of the project as determined by 

the authority and shall continue in force only 

while the project is owned by a housing 

corporation or housing association formed 

under this act and regulated by the authority 

or owned or operated by the authority.

[N.J.S.A. 55:16-18 (repealed 1984).]

Tax exemptions under the LTTEL may not be granted for more 

than "[thirty-five] years from the date of the execution of the 

financial agreement." N.J.S.A. 40A:20-13. LTTEL did not affect 

the tax exemption that Oakwood Towers was granted in 1980. 

An urban renewal entity organized and 

operating under a law repealed by this act 

shall not be affected by that repeal. Any 

financial agreement entered into and any tax 

exemption granted or extended shall remain 

binding upon the urban renewal entity and the 
13 A-0093-14T3

municipality, subject to modification by 

mutual written consent, as if the law under 

which it was entered into, or granted or 

extended, had not been repealed by this act.

 [L. 1991, c. 431, § 20(b).4]

It was not arbitrary, capricious or unreasonable for the City 

to extend the tax exemption by the properly adopted Ordinance. 

Plaintiffs do not challenge that LDL allowed for a fifty-year tax 

abatement. Under LTTEL, a "qualified subsidized housing project" 

can be exempted from taxation "for such period of time as the 

federal agency subsidizing the project may require as a condition 

of the subsidy" and the exemption can be extended "to secure a 

continuation of federal subsidies after the expiration of the 

initial subsidy period." N.J.S.A. 40A:20-13.1. The ten-year tax 

exemption granted by Ordinance 39-2013 stated that it was pursuant 

to authority set forth in LTTEL. 

Plaintiffs argue that the 1980 tax exemption expired when the 

mortgage was refinanced, citing to one portion of the 1980 Tax 

Abatement Agreement that used the phrase "subject to the NJHFA 

mortgage" to support their argument. Plaintiffs give no reason 

why the tax exemption should have expired due to refinancing. 

 

4 This provision has been amended twice. See L. 1992, c. 79, § 

56, and then by L. 2009, c. 180, § 1(b). The amendments are not 

relevant for this case.
14 A-0093-14T3

Nothing about the project had changed. Oakwood Towers continued 

to function as affordable housing for low and very low-income 

seniors subject to regulation by NJHMFA and needed the exemption 

to continue to function in that capacity. Those facts were not 

disputed by plaintiffs. The 2005 Deed Restriction simply continued 

the same type of regulatory requirements that NJHFA had included 

in its 1981 mortgage with Oakwood Towers. The Fannie Mae Mortgage 

referenced the 2005 Deed Restriction with NJHMFA where Oakwood 

Towers continued to be bound by NJHMFA regulations and the HAP 

contract. Therefore, plaintiffs do not show why the source of the 

loan would affect the tax abatement when the conditions imposed 

by NJHMFA as part of the loan continued to apply to Oakwood Towers. 

Plaintiffs, thus, have not met their burden to overcome the 

presumed validity of the Ordinance.

The City did not exceed its delegated authority by approving 

the Ordinance that allowed the City to contract with Oakwood Towers 

and provide a tax exemption. Plaintiffs contend "the local 

governing body failed to create a legislative record sufficient 

to support their legislative/discretionary action." However, not 

only was there statutory authority to grant a tax exemption, but 

the Ordinance and subsequent 2014 Tax Exemption stated the reasons 

for approval and included findings by the City in support of the 
15 A-0093-14T3

agreement. This was consistent with the requirements of LTTEL. 

See N.J.S.A. 40A:20-11.

Plaintiffs contend that defendants violated their fiduciary 

duties by "conceal[ing] material information and documentation 

from stakeholders." See Driscoll v. Burlington-Bristol Bridge 

Co., 8 N.J. 433, 474 (1952) (stating on the facts of that case 

that public officers "stand in a fiduciary relationship to the 

people whom they have been elected or appointed to serve"). 

Plaintiffs allege defendants used public monies to "defend a 

negligence action against certain City elected officials, city 

employees and retained professionals"; however, defendants 

provided no factual basis at all for these claims. 

Plaintiffs claim that they were "denied reasonable notice and 

an opportunity to be heard" and that the Ordinance should be 

declared void under the Open Public Meetings Act (OPMA), N.J.S.A. 

10:4-15. They do not state which provisions of the OPMA were 

violated. "[P]ublic bodies are given discretion in how to conduct 

their meetings." Kean Fed'n of Teachers v. Morell, __ N.J. __, 

__ (2018) (slip op. at 5) (citing N.J.S.A. 10:4-12(a)). "Nothing 

in this act shall be construed to limit the discretion of a public 

body to permit, prohibit, or regulate the active participation of 

the public at any meeting, except that "municipal governing bodies 

and local boards of education are required to set aside time for 
16 A-0093-14T3

public comment." N.J.S.A. 10:4-12(a). Plaintiffs had notice of 

the meeting and an opportunity to comment. According to the 

minutes, Feld was present at the meeting when the Ordinance was 

adopted. He did not express comments about this Ordinance. On 

this record, plaintiffs have not alleged any facts that would 

support an OPMA claim. 

Plaintiffs contend the City granted immunity to itself and 

outside counsel against frivolous and vexatious litigation. This 

argument lacks any support. The April 16, 2014 case management 

order simply stated that the City's answer "shall not be an avenue 

for plaintiff to assert frivolous litigation." Plaintiffs cited 

no evidence to suggest this provided immunity. 

Plaintiffs contend they were denied a "level playing" field. 

Although it is not clear what legal claims plaintiffs are 

asserting, plaintiffs were not entitled to trial-like opening and 

closing statements, as they allege; they did not establish how 

depositions of the mayor or other elected officials were relevant 

to the Ordinance; and there were no genuine issues of material 

fact that would have required a plenary hearing or precluded the 

orders granting summary judgment. 

We agree that the trial court did not satisfy Rule 1:7-4 

because it said little about its findings or conclusions. In 

addition, there was no authority for the court to call upon members
17 A-0093-14T3

of the audience during the motion for their opinions. However, 

because our review is de novo, there is no need for a remand.5 

After carefully reviewing the record and the applicable legal 

principles, we conclude that plaintiffs' further arguments are 

without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E). 

Affirmed.

 

5 Plaintiffs raised an issue about an error involving "net 

profit"/surplus monies. The record is inadequate for us to address 

this issue.