SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0621-17T2

IN THE MATTER OF TOWERS

ASSOCIATES' MOTION REQUESTING

THAT MEPT LINCOLN CROSSING'S

WITHDRAWAL OF ITS VARIANCE

APPLICATION BE CONSIDERED

AS WITH PREJUDICE.

__________________________________

Submitted January 10, 2019 – Decided July 30, 2019

Before Judges O'Connor and DeAlmeida.

On appeal from the New Jersey Sports & Exposition 

Authority.

Sills Cummis & Gross, PC, attorneys for appellant 

Towers Associates (Joseph B. Fiorenzo and Kristoffer 

S. Burfitt, on the briefs).

Waters Mc Pherson Mc Neill, PC, attorneys for 

respondent MEPT Lincoln Crossing, LLC (Eric D. Mc

Cullough, of counsel and on the brief).

Gurbir S. Grewal, Attorney General, attorney for 

respondent New Jersey Sports & Exposition Authority 

(Melissa Dutton Schaffer, Assistant Attorney General, 

of counsel; Ryan C. Atkinson, Deputy Attorney 

General, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
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A-0621-17T2

PER CURIAM

Respondent MEPT Lincoln Crossing, LLC (MEPT) submitted an 

application to the New Jersey Sports and Exposition Authority (NJSEA) 

seeking a use variance and site plan approval. After the NJSEA staff 

commenced public hearings, MEPT withdrew its application without 

prejudice. Thereafter, appellant Towers Associates, an objector to the 

application, filed a motion with NJSEA requesting MEPT's application be 

deemed withdrawn with prejudice or, in the alternative, that MEPT 

compensate appellant for the counsel and expert fees and costs it incurred to 

object to MEPT's application. In a resolution dated September 21, 2017, the 

NJSEA Board of Commissioners (Board) denied MEPT's motion. Appellant 

appeals from that resolution. We affirm.

I

MEPT is the owner of property in North Bergen and Secaucus, on which 

is a warehouse. The property is located in the Meadowlands District, where 

NJSEA regulates land use. In 2015, MEPT wanted to demolish its warehouse 

in order to build a larger one. To accomplish that goal, in accordance with 

N.J.A.C. 19:4-4.4 and N.J.A.C. 19:4-4.14, MEPT applied to NJSEA for a use 
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variance from zoning regulation N.J.A.C. 19:4-5.52(a) and for site plan 

approval.

Appellant owns property adjacent to the property on which MEPT's 

current warehouse exists. On appellant's property is a Home Depot and an 

undeveloped lot on which appellant plans to build a hotel. Appellant opposed 

MEPT's application, as did another entity, Vee Jay International (Vee Jay), 

which owned property adjacent to MEPT's, as well.

The NJSEA staff conducted public hearings on MEPT's application over 

the course of six days in the fall 2015. Both objectors participated in the 

hearings. Shortly before the sixth day of hearings, MEPT modified its site 

plan in order to meet some of Vee Jay's concerns. During the sixth day of 

hearings, MEPT recalled two of its experts to testify about the recent 

alterations to its plan. Both appellant and Vee Jay were unprepared to crossexamine the experts, so the matter was scheduled to continue on another day in 

January 2016 to permit the objectors to cross-examine and MEPT to conduct 

redirect examination on these experts, as well as allow the objectors to 

introduce evidence. Thereafter, at MEPT's request, that hearing was adjourned 

to March 2016.
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Meanwhile, in February 2016, MEPT sent a letter to NJSEA advising 

that MEPT had decided to "evaluate alternative designs for the proposed 

facility, which will necessitate submission of new plans and technical reports.

The [a]pplicant therefore withdraws without prejudice the pending 

applications, and will resubmit new plans and applications at a future date."

Appellant then filed a motion with NJSEA requesting that MEPT's 

withdrawal of its application be deemed with prejudice or, in the alternative, 

that appellant be awarded the counsel and experts' fees and costs it incurred 

objecting to MEPT's application. Although NJSEA is a State agency, 

appellant's principal argument was that it was entitled to such relief pursuant 

to Rule 4:37-1(b).1 From what we can ascertain from the record, the gist of 

appellant's argument was that MEPT withdrew its application because it feared 

the application was going to be rejected.

 

1

 Rule 4:37-1(b) provides in pertinent part:

Except as provided by paragraph (a) hereof, an action 

shall be dismissed at the plaintiff's instance only by 

leave of court and upon such terms and conditions as 

the court deems appropriate. . . . Unless otherwise 

specified in the order, a dismissal under this paragraph 

is without prejudice.
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In a resolution dated September 21, 2017, the Board denied the motion, 

providing its reasons in a written decision attached to the resolution.2 

Although the Board found Rule 4:37-1(b) in part governed the resolution of 

 

2

 In June 2017, MEPT filed a new application for a use variance. In its 

moving brief before us, appellant contends the second application is identical 

to the one MEPT initially submitted. In its brief in response, MEPT maintains 

the application is different from the first in several material respects. In its 

reply brief, appellant again argues the two applications are the same, and filed 

a reply appendix that includes the transcripts of the hearings on the second 

application.

The hearings on the second application did not commence until April 

2018. When it decided appellant's motion in September 2017, the second 

application was not before the Board and, thus, it did not consider it. In its 

reply brief, appellant argues the transcripts of the hearings on the second 

application support its position such application was the same as the first. In a 

motion MEPT filed to strike appellant's reply appendix and those portions of 

the reply brief that refer to or rely upon the appendix, MEPT argued 

appellant's position the two applications are the same is incorrect and the 

product of "cherry-picking" from the extensive record on the second 

application. MEPT further noted it cannot respond to the reply brief and 

provide reasons why appellant's assertion the applications are the same are 

unfounded by the record.

We entered an order that strikes from the reply appendix the transcripts 

of the hearings on the second application, as well as any arguments in the reply 

brief that rely upon the evidence adduced at those hearings. The Board did not 

take into consideration any of the evidence adduced during the hearings on the 

second application when it decided appellant's motion in September 2017. In 

fact, the hearings on the second application had not even concluded before 

MEPT filed its response brief before us. We do not consider evidence that was 

not presented to the Board and that was submitted by a party for the first time 

on appeal. See Townsend v. Pierre, 221 N.J. 36, 45 n.2 (2015).
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the issue, after applying this Rule to the facts, the Board determined appellant 

was not entitled to relief under this Rule. However, for reasons unrelated to 

Rule 4:37-1(b), the Board found that MEPT's withdrawal of its application 

without prejudice was an appropriate disposition, and that MEPT was not 

obligated to compensate appellant for its fees and costs.

When evaluating the application of Rule 4:37-1(b), the Board found that 

when MEPT withdrew its application, the hearing on this matter was "far from 

complete." The NJSEA staff had yet to hear the cross-examination of MEPT's 

remaining witnesses, the testimony of the objectors' witnesses, the public's 

comments on the application, and closing arguments. More important, the 

Board observed that when MEPT withdrew its application, there was no 

indication of how the Board was going to rule. The Board therefore rejected 

appellant's claim that MEPT withdrew its application to preclude NJSEA from 

making a decision that would have been adverse to it.

As stated, the Board found reasons unrelated to the application of Rule

4:37-1(b) to support the withdrawal of MEPT's application without prejudice. 

The Board noted that permitting applicants to amend or resubmit applications 

to address concerns raised by objectors or by the Board should be encouraged. 

In its written decision attached to the resolution, the Board stated:
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While [appellant] might have expected a conclusion to 

this matter and some semblance of finality, at this 

stage of the proceedings such expectations are 

unreasonable. Often in land use hearings such as this, 

applicants amend and/or withdraw and resubmit 

applications to address concerns raised by objectors 

and/or the governing authority. Such cooperation is 

encouraged and allows the concerns of the objectors to 

be addressed while at the same time protecting the 

rights of property owners. To suggest that an 

applicant may not withdraw an application to address 

such concerns would discourage cooperation and 

defeat NJSEA's ability to perform its stated mission.

As the hearing was not complete and the 

procedures set forth in N.J.A.C. 19:4-4.14 had not 

concluded, MEPT's application was properly 

withdrawn without prejudice.

Although the Board did not specifically identify what its "mission" is, 

N.J.S.A. 5:10A-2(h) provides that one of NJSEA's goals or interests is to

promote the economic growth of the meadowlands and northern New Jersey. 

Further, in February 2015, NJSEA and the New Jersey Meadowlands 

Commission merged and became collectively known as the New Jersey Sports 

and Exposition Authority. N.J.S.A. 5:10A-1 to -68. N.J.S.A. 5:10A-6 

provides that, in addition to dissolving the New Jersey Meadowlands 

Commission and vesting in NJSEA the Commission's property, funds and 

assets, NJSEA shall carry out the purposes of N.J.S.A. 13:17-1. The latter 

statute declares that one of the purposes of the Hackensack Meadowlands 
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Reclamation and Development Act, N.J.S.A. 13:17-1 to -3.1, is "to reclaim, 

plan, develop and redevelop the Hackensack meadowlands." N.J.S.A. 13:17-1.

II

On appeal, appellant asserts the following arguments for our 

consideration:

POINT I: THE NEW JERSEY SPORTS AND 

EXPOSITION AUTHORITY ACTED 

ARBITRARILY, CAPRICIOUSLY, AND 

UNREASONABLY IN DENYING TOWERS 

ASSOCIATES' MOTION TO TREAT MEPT 

LINCOLN CROSSING'S WITHDRAWAL OF ITS 

VARIANCE APPLICATION AS WITH PREJUDICE.

POINT II: ALTERNATIVELY, HAVING FAILED 

TO DISMISS MEPT'S APPLICATION WITH 

PREJUDICE, THE POLICY CONCERNS OF 

FINALITY, AVOIDANCE OF DUPLICATION, 

REDUCTION OF UNNECESSARY BURDENS, 

PREVENTION OF NEEDLESS LITIGATION, AND 

BASIC FAIRNESS UNDERPINNING RULE 4:37-

1(b) REQUIRED THE BOARD TO GRANT 

TOWERS' MOTION FOR ATTORNEY AND 

EXPERT WITNESS FEES.

Our review of the subject resolution is limited. "A strong presumption 

of reasonableness accompanies an administrative agency's exercise of 

statutorily-delegated responsibility." In re Proposed Xanadu Redevelopment 

Project, 402 N.J. Super. 607, 632 (App. Div. 2008) (quoting Gloucester Cty. 

Welfare Bd. v. State Civil Serv. Comm'n., 93 N.J. 384, 390 (1983)). A court 
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may reverse an agency's decision only if it "conclude[s] that the decision of the 

administrative agency is arbitrary, capricious, or unreasonable, or is not 

supported by substantial credible evidence in the record as a whole." J.D. v. 

N.J. Div. of Developmental Disabilities, 329 N.J. Super. 516, 521 (App. Div. 

2000). That said, we are not in any way "bound by the agency's interpretation 

of a statute or its determination of a strictly legal issue." Mayflower Sec. Co. 

v. Bureau of Sec., 64 N.J. 85, 93 (1973).

The term "arbitrary and capricious" in the law means having no rational 

basis. Bayshore Sewerage Co. v. Dep't of Envtl. Prot., 122 N.J. Super. 184, 

199 (Ch. Div.1973), aff'd., 131 N.J. Super. 37 (App. Div.1974). In connection 

with administrative bodies, the term "means willful and unreasoning action, 

without consideration and in disregard of circumstances." Ibid.

Having considered the record, the parties' arguments and the applicable 

law, we reject the premise Rule 4:37-1(b) governs the outcome here. 

Appellant did not provide and we are unable to find any authority binding 

upon this court that supports its argument Rule 4:37-1(b) applies in an 

administrative proceeding. Moreover, Rule 4:1 instructs that "[t]he rules in 

Part IV, insofar as applicable, govern the practice and procedure of civil 

actions in the Superior Court, Law and Chancery Divisions, and the surrogate's 
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courts and the Tax Court . . . ." The decision under review here was made by a 

State agency in an administrative proceeding, not by the Superior Court in a 

civil action in the Law or Chancery Division, or by the surrogate's court or Tax 

Court.

Second, we are unable to find any authority that supports the premise 

NJSEA must order the withdrawal of an application of the kind here with 

prejudice, or that NJSEA has the authority to order a party to pay the counsel 

and experts' fees and costs of another.

We affirm NJSEA substantially for the alternate reason the Board

provided in the resolution to deny appellant's motion. As the Board noted, 

often in land use hearings applicants amend, withdraw and resubmit 

applications in order to address concerns raised by others. The Board 

observed that such action allows the concerns of the objectors to be addressed 

while at the same time protecting the rights of property owners, and "to 

suggest that an applicant may not withdraw an application to address such 

concerns would discourage cooperation and defeat NJSEA's ability to perform 

its stated mission."

Here, MEPT advised the Board and the objectors that it withdrew its 

application because it wanted to evaluate alternative designs for the proposed 
11 A-0621-17T2

facility and, as it stated to the NJSEA staff and the objectors, voiced the 

concern such evaluation might require the "submission of new plans and 

technical reports." Considering the facts as they existed when the Board 

denied appellant's motion in September 2017, appellant provides no reasonable 

basis to preclude MEPT from withdrawing the first application without 

prejudice and submitting a new one, or to compel MEPT to pay for appellant's 

fees and costs.

One of the NJSEA's statutory goals is to promote development in the 

meadowlands. See N.J.S.A. 5:10A-6 and N.J.S.A. 13:17-1. NJSEA's essential 

finding is that appellant's position would be antithetical to development. 

Problems with an application are often discovered and exposed during the 

hearing process. After all, the fundamental purpose of a hearing is to examine 

an application and determine if there are any flaws that will make its approval 

problematic.

An applicant will be deterred from submitting an application for 

development if it knows that, if a problem is discovered during the hearing and 

the only remedy is to withdraw the application, the applicant must bear the 

fees and costs of another party, or be precluded from filing a new application if 

the original one is deemed withdrawn with prejudice. Even if there are no 
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problems with an application, an applicant may have sound reasons to alter its 

plans and wish to withdraw its application and file a new one. An applicant 

will be deterred from filing an application under such circumstances, as well.

We are not unmindful of appellant's contention that it was unfairly 

caused to expend its resources a second time in order to object to the second 

application because, according to appellant, the second application was the 

same as the first. However, that issue is not before us. The Board did not 

make nor could it have made the determination whether the first and second 

applications were the same but, even if it determined they were, the Board is 

not precluded from considering other reasons bearing on the question whether 

appellant is entitled to the relief it seeks. 

Accordingly, under the specific factual circumstances presented here, we 

discern no reason to conclude the Board's ultimate decision to deny appellant's 

motion was arbitrary, capricious or unreasonable.

Affirmed.