SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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- 17T2 TEAM RHODI, LLC, Plaintiff

- Appellant,

v. JERSEY CITY REDEVELOPMENT AUTHORITY 1 , CITY OF JERSEY CI TY , and FDAD MAPLE, LLC, Defendants

- Respondents.

______ __________________________ A rgued telephonically October 10, 2019

– Decided July 29 , 2020 Before Judges Nugent, Suter and DeAlmeida. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L

- 2159

- 17. Andy S. Norin argued the cause for appellant ( F aegre Drinker Biddle & Reath, LLP, attorneys; Andy S. Norin,

1 The Law Division Complaint, the order appealed from, and some of the briefs refer to this defendant as Jersey City Redevelopment Authority. This defendant refers to itself as Jersey City Redevelopment Agency, which is consistent with its resolutions of record. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court

. " A lthough 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

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- 17T2 of counsel and on the brief; Angela R. Raleigh, on th e brief). Charles J. Dennen argued the cause for respondent Jersey City Redevelopment Authority (Archer & Greiner, P C , attorneys; James M. Graziano, Charles J. Dennen and Francis T. Jamison, on the brief). John J. Curley argued the cause for respondent FDAD Maple, LLC (John J. Curley, LLC, attorneys; John J. Curley and Jennifer J. Bogdanski, on the brief). Philip S. Adelman , A ssistant C orporation C ounsel, argued the cause for respondent City of Jersey City (Pet er J. Bak er, Corporation Counsel, attorney , join s in the brief of respondent Jersey City Redevelopment Authority ).
PER CURIAM This appeal involves the Local Redevelopment and Housing Law (" Redevelopment Law "), N.J.S.A. 40A:12A

- 1 to

- 89. More than fifteen year s after the Municipal Council of defendant City of Jersey City ("Co uncil") declared an area within the City in need of redevelopment, p laintiff, Team Rhodi, LLC, purchased seven lots within the redevelopment area. More than seventeen years after Council declared the area in need of redevelopment, Team Rhodi filed a prero gative writs action challenging Council's declaration, as well as defendant Jersey City Redevelopment Authority's designation of a redeveloper and the use of eminent domain to acquire Team Rhodi's property. The trial court dismissed the prerogative3 A

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writs action, concluding, among other things, it was untimely. Team Rhodi appeals. We affirm.
I.
A. The events underlying this appeal began in 1998 when Counci l adopted a

r esolution and authorized an investigation of the Garfield Brownfield Study Area ( " study area " ) to determine whether it qualified as an area in need of redevelopment under the Redevelopment Law

. The parties do not dispute that although the original study area did not include the subject lots, the seven lots now owned by Team Rhodi

are included within the final area eventually determined to be in need of redevelopment. Upon completion of the investigation, the Jersey City Planning Board ( " Board " ) held a hearing to consider whether the study area qualified as an area in need of redeve lopment. The Board published notice of the meeting on October 3 and 10, 1998. The notice read:

Please be advised at their October 20, 1998 meeting, [the Board] will consider a Study Report to determine whether the area designated as the [study area] qualifies as an "area in need of redevelopment." Formal action will be taken. . . . This meeting is an open public meeting and those persons for or against such determination will be given an opportunity to address the board. . . .4 A

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Team Rhodi points ou t the absence of notice to the public that if the study area qualifie d a s an area in need of redevelopment then the City could acquire property within the area through the exercise of the power of eminent domain. During the hearing, the City's Director o f Planning entered into evidence proof of a letter about the meeting that had been sent to each property owner in the study area. As noted previously, Team Rhodi had not purchased its seven lots and would not do so for more than a decade. The Planning Di rector proceeded to give a presentation, which included 215 slides and the introduction of a comprehensive report entitled "Report Concerning the Determination of the Proposed Garfield Brownfield Study Area" ("Study Report").
T he Board analyzed each bl ock within the study area. Block 2073

— now Block 19003 in which Team Rhodi's seven lots are located

— was described as follows: This block's southern edge is across Maple Street from

Block 2070. Its Maple Street frontage together with five lots depth from each Maple Street corn er, also extends back to form a vacant rectangular plot, opposite the one in 2070. The Monitor Street corn er is ARH ASSOC owned and blacktopped over with several trucks parked

. The remainder of the Monitor Street lots consist of old er two and three family homes and garages. Along Johnston Avenue is a row of three

- story bri ck and frame multiple dwellings which are mostly in fai r condition. This is similar to the row of buildings on Pine Street, only one of which is in poor c ondition

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The Study Report concluded the entire study area as a whole satisfied the criteria under the Redevelopment Law for designation as an area in need of redevelopment . When asked how the redevelopment designation would impact private owners of the propert ies within the study area , the Planning Director responded , " anyone who owns private property in the study area is free to buy it and sell it and redevelop it today, tomorrow and the next day." However, he also explained that a blight designation triggere d the City's authority to acquire the property through condemnation, a determination to be made during the redevelopment plan drafting phase. 2
T he Board voted to recommend the area in need of redevelopment designation for the entire study area, and two m onths later, in December 1998, Council adopted a resolution to that effect. According to Team Rhodi's appellate brief, the City provided neither public n or private notice of its determination that the Study Area was an area in need of redevelopment.
In 1999 , the City adopted the Morris Canal Redevelopment plan ( " MCR plan ") as the redevelopment plan for the study area

. The MCR plan has been amended more than twenty

- nine times between 2002 and 2016.

2 The parties use the terms "blight" and "area in need of redevelopment" interchangeably.6 A

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In 2004 , the Jersey City Redevelopment Authority ("Au t hority") designated LMD #13 Urban Renewal, LLC ( " LMD " ) as the redeveloper. Their 2006 agreement obligated LMD to begin redevelopment of certain lots in Block 2073 and begin construction by April 1, 2008. LMD took no action for nearly ten years. In 20 15, Team Rhodi began its acquisition of Lots 1 through 7 in what was formerly Block 2073, now 19003 ( "Rhodi Property")

. In May 2015, a company named MC Maple, LLC , ("MC Maple") filed an application with the Authority for a redeveloper designation with res pect to lots 13, 14, 15, and 16 in Block 19003 ("MC Maple Property")

. That October, the Authority approved the transfer of LMD's redevelopment rights in the MC Maple Property to MC Maple

. The next day , entities that Team Rhodi characterizes as "affiliates" of MC Maple and defendant FDAD Maple, LLC ("FDA D Maple"), reportedly contributed $100,000, and months later an additional $50,000, to the Coalition for Progress, a Super Pac that supported Jersey City Mayor Steven Fulop's ca m paign for governor. The Jersey City Redevelopment Pay

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- Play Ordinance, §3

- 51.2 , prohibits an entity from making certain political contributions, including to candidates for elective office in Jersey City , any Jersey City o r Hudson County political commi ttees , or other PAC's, three months prior to applying to enter into a redevelopment agreement.
In the redeveloper application, MC Maple certified its compliance with the p ay - to

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p lay o rdinance. There is no evidence that either MC Maple or FDA D Maple made any improper political contributions. Meanwhile, from 2015 to 2017, Team Rhodi completed its acquisition of Lots
1

- 7, B lock 19003

. After the acquisition, Team Rhodi commenced environmental remediation of the property, demolished several buildings, hired personnel, and
asserted it was "ready, willing and able to develop the Property in accordance with the Redevelopment Plan." Notwithstanding its asserted readiness , however, Team Rhodi never submitted an application to the Authority to be designated as th e redeveloper of the Rhodi P roperty within the MCR plan. 3
FDAD Maple eventually submitted an application for redeveloper designation with respect to the remaining lots i n Block 19003, lots 1

- 12 and 17

- 19. In November 2016, the Authority approved the transfer of LM D 's redevelopment rights respecting these lots to FDAD Maple. FDAD Maple wrote a February 2017 letter to Team Rhodi 's manag ing member . The letter stated:

Thank you for meeting with Rob and me on Tuesday. I am writing this letter to follow up and memorialize our discussion, specifically to offer in writing the two proposals we made that we feel will resolve our situation fairly.

3 Plaintiff asserts it could not submit a redeveloper application for its properties because the Authority did not make the applications public, and such a pplications were only available by invitation or informal discussion. Plaintiff has failed to provide evidence of those allegations in the record.8 A

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- 17T2 As you know, our company,

. . . has been designated as the redevelop er of Block 19003, including Lots 1 thru 7 (the Johnston Street properties), within the Morris Canal Redevelopment Plan Area. In that regard, we have an obligation to attempt to acquire parcels within Tax Block 19003. We understand that your company

. . . owns or is contracted to purchase Lots 1 thru 7 (the Johnston Street properties). Since we both have pursued the possible development of these parcels for a significant time and at significant costs, we trust you agree that a fair resolution is fo r both of our companies to participate equally in the development of these parcels.
The letter also presented two options for purchasing the Rhodi Property , either through joint venture or division of the properties. It is unclear from the record if or how Team Rhodi responded. In April 201 7, the Authority and FDAD Maple entered into a redevelopment agreement for the remaining lots in Block 19003

. That June, the Authority ratified the agreement by resolution.
B.
I n M ay 2017 , Team Rhodi filed a complai nt in lieu of prerogative writs. The eight

- count complaint alleged, among other claims: (i) the City lacked the authority to condemn the Rhodi property; (ii) the designatio n of FDAD Maple , as "redeveloper" of Team Rhodi 's property and the decision to use eminent domain to acquire the property was arbitrary, capricious and unrea sonable ; (iii) condemnation9 A

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of the property would violate the United States Constitution and the New Jersey Constitu tion ; and (iv) the redevelopment a greement between the Authori ty and
FDAD Maple was ultra vires and arbitrary, capricious and unreasonable. The trial court disagreed with these arguments and dismissed Team Rhodi's complaint. The trial court determined that Team Rhodi's challenge to the City's "blight designation" was untimely and had not been asserted as a defense in a condemnation action. The court also determined the Board had provided adequate notice to the public in general, and to property owners specifically, of its intention to consider a study and determin e whether the area designated in the study was in need of redevelopment. The court further determined there was ample evidence before the Board to support its determination the study area was in need of redevelopment. Concerning the City's authority to c ondemn property within the study area, the court found the City's authority was not affected by the absence of notice because the City and the Board had provided adequate notice as required by statute and to satisfy due
process. The court next determine d that selection of a redeveloper rests within the sound discretion of the municipality. The court determined the City had not abused its discretion and more specifically, the record was devoid of evidence to the10 A

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contrary. The court determined the Author ity's decision to designate FDAD Maple as a redeveloper was not made in bad faith, arbitrary or capricious. Last, the trial court determined that even i f those entities that contributed to the Super Pac were affiliates of FDAD Maple , the contributions to the Super Pac did not violate the City's pay

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- play ordinance.
II. On appeal, Team Rhodi first challenges the City's blight designation of the entire study area. Arguing that it may challenge the City's action nearly two decades later, notwithstanding a forty

- five

- day statutory limitation to such challenges, Team
Rhodi contends the City and Board failed to provide adequate notice to property

owners . Team Rhodi also argues the blight designation of the Rhodi property was not supported by substantial evi dence. Team Rhodi next advances several challenges to the action s taken by the Authority. First, it contends the Authority 's exercise of eminent domain to acquire the Rhodi property is unauthorized by the Redevelopment Law. Next, it asserts the Authority's designation of FDAD Maple as the redeveloper was arbitrary, capricious, and unreasonable because the Authority is using eminent domain to transfer property from one developer to another outside of the context of a unitary developme nt of a broader development project, and because the Authority selected11 A

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FDAD Maple as the redeveloper for political reasons. Last, Team Rhodi contends the Authority's use of eminent domain to condemn and acquire the Team Rhodi property violates the taking s clause of the Fifth Amendment. In its final argument on this appeal , Team Rhodi contends it was entitled to discovery as to all issues , an entitlement it asserts the trial court erroneously denied. The Authority responds that Team Rhodi's challenge t o the blight designation of the study area is untimely , and Team Rhodi has cited no controlling precedent to the contrary. The Authority adds the City and Board provided sufficient notice of the intention to determine whether the blight designation was ap propriate , and the determination itself was supported by substantial evidence. Next, the Authority submits Team Rhodi's challenge to the Authority's use of eminent domain i s meritless and based on Team Rhodi's misconstruction of otherwise applicable legal precedent. In addition, the Authority insists its decision to designate FDAD Maple as the redeveloper was not arbitrary, capricious or unreasonable. To the contrary, it was made in furtherance of the public good. Consequently, t he Authority concludes, the trial court correctly determined the City and the Authority satisfied the public use requirement necessary for its action. Last, the Authority asserts the trial court did not abuse its discretion by denying Team Rhodi discovery.12 A

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FDAD Maple agrees wit h the Authority that Team Rhodi's appeal lacks merit. FDAD Maple argues the record demonstrates Team Rhodi's challenge to the blight designation is untimely, and in any event, proper notice was given of the Board's intent to determine the blight issue. F DAD Maple adds that it is qualified to be a redeveloper for the project, and the Authority's designation of FDAD Maple as a redeveloper was made in accordance with the Redevelopment Law.
III. We first address Team Rhodi's argument that it s appeal of the blight designation is not time

- barred. We disagree.
W hen the City designated the study area as an area in need of redevelopment, the Redevelopment Law required any challenge to that determination to be brought within forty

- five days after the Ci ty's determination. N.J.S.A. 40A:12A

- 6(b) ( 7). Team Rhodi missed that deadline by more than fifteen years. Nevertheless, Team Rhodi relies on Harrison Redevelopment Agency v. DeRose , 398 N.J. Super. 361 (App. Div. 2008) in support of its assertion tha t its challenge is timely. Team Rhodi's
reliance o n DeRose is misplaced.
In DeRose , we noted that, "[a]t its core, due process requires adequate notice and an opportunity to be heard, whether analyzed under the Fe d eral Constitution or under the New Jersey Constitution." 398 N.J. Super. at 403. Thus,13 A

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- 17T2 unless a municipality provides the property owner with contemporaneous written notice that fairly alerts the owner that (1) his or her property has been designated fo r redevelopment, (2) the designation operates as a finding of public purpose and authorizes the municipality to acquire the property against the owner's will, and (3) informs the owner of the time limits within which the owner may take legal action to chal lenge that designation, an owner constitutionally preserves the right to contest the designation, by way of affirmative defense to an ensuing condemnation action. Absent such adequate notice, the owner's right to raise such defenses is preserved , even bey ond f orty

- five days after the designation is adop t ed. [ Id. at 367

- 68.] In the trial court, Team Rhodi did not assert its challenge to the blight designation as a defense to the condemnation action on its property. Rather, it attempted to belatedly att ack the blight designation in an effort to invalidate the blight designation of the entire study area. As the trial court found, no precedent exists for such a belatedly broad challenge to a municipality's determination an area is in need of redevelopment

. Even if Team Rhodi had challenged the blight designation in the context of a defense to a condemnation action concerning its seven lots, it is questionable whether such attack would have prevailed. Team Rhodi did not own property within the study area when the blight designation was made. It is not clear from the record whether Team Rhodi eve n existed at that time. Team Rhodi has made no effort to14 A

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explain what interest it had that entitled it to due process when the City made the blight determination

. Moreover, because Team Rhodi purchased property in the study area , it was on constructive if not actual notice of the blight designation. In any event, even if Team Rhodi is entitled to assert a due process right based on the City's action more than fi fteen years before Team Rhodi began purchasing property in the study area, it did not do so in the context of a defense to a condemnation action. The time for filing an action in lieu of prerogative writs is also restricted by Rule 4:69

- 6(a), which s ta tes in pertinent part: "N o action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed

. . . . " Rule 4:69

- 6(c) authorizes a court to "enlarge the period of time provided in paragraph (a) or (b ) of this rule where it is manifest that the interest of justice so requires. " Our Supreme Court has defined three categories that qualify under this exception: "( 1) important and novel constitutional questions; (2) informal or ex parte determinations of legal questions by administrative officials; and (3) important public rather than private interests which require adjudication or clarification." Borough of Prince ton v. Bd. of Chosen Freeholders of Mercer , 169 N.J. 135, 152 (2001) (quoting Brunetti v. Borough of New Milford , 68 N.J. 576, 586 (1975)). Team Rhodi's claim falls within none of these exceptions.15 A

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We do not discern from the record any novel or constituti onal questions presented by Team Rhodi's claims. The municipal authority under the Redevelopment Law is well settled and DeRose was decided more than a decade ago. Moreover, it is evident from the record Team Rhodi is seeking to vindicate a private rathe r than a public interest. Even if Team Rhodi's argument is deemed an attempt to vindicate an important public interest, t he decision "to grant or deny an enlargement involves a sound exercise of judicial discretion, with consideration given both to the p otential impact upon the public body and upon the plaintiff." Tri

- State Ship Repair & Dry Dock Co. v. City of Perth Amboy , 3 4 9 N.J. Super. 418, 424 (App. Div. 2002) (citing Southport Dev. Group v. Wall Twp

. , 310 N.J. Super. 548, 556 (App. Div. 1998)). Si gnificantly, "[t]he longer a party waits to mount its challenge, the less it may be
entitled to an enlargement." Ibid. Importantly, "[t]he 45

- day time frame contained within [ Rule ] 4:69

- 6 'is designed to give an essential measure of repose to actions tak en against public bodies.'" Id. at 423 (quoting Washington T w p. Zon ing Bd. v. Planning Bd. , 217 N.J. Super. 215, 225 (App. Div. 1987)). " B ecause of the importance of stability and finality to public actions, courts do not routinely grant an enlargement of time to file an action in lieu of prerogative writs." Ibid. ( citing Cty

. of Ocean v. Zekaria Realty Inc. , 271 N.J. Super. 280 (App. Div. 1994) )

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Granting the relief Team Rhodi seeks woul d undermine if not entirely subvert the foregoing principles. The trial court did not abuse its discretion by declining to enlarge the period of time provided in Rule 4:69

- 6(a) by more than fifteen years.
IV. We have considered Team Rhodi's remaining arg uments and with the exception of the following brief comments consider them to be without sufficient merit to warrant further discussion. R. 2:11

- 3(e)(1)(E). Team Rhodi suggests that the Authority's "decision to use eminent domain to take [Team Rhodi's] property is not authorized under the [Redevelopment Law] " because Team Rhodi has the ability to develop the property itself. Acknowledging our contrary holding in Vineland Constr. Co., Inc. v. Twp. of Pennsauken , 395 N.J. Super. 230, 253 (App. Div. 2007), Team Rhodi urges that we reject the majority's interpretation and adopt the reasoning of the dissenting judge. We decline to do so. We also reject Team Rhodi's challenge to the designation of FDAD Maple as a redeveloper. "[T]he designation of a redevel oper, like all municipal actions, is a discretionary act, vested with a presumption of validity, that will be upheld where any state of facts may reasonably be conceived to justify the action." Id. at 255. Moreover, "[m]unicipal bodies 'are presumed to a ct on the basis of adequate factual support and, absent a sufficient showing to the contrary, it will be assumed that their17 A

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enactments rest upon some rational basis within their knowledge and experience.'" Id. at 2 56 (quoting Hutton Par k Gardens v. Town Council of W. Orange , 68 N.J. 543, 564

- 65 (1975)). Team Rhodi's argument

— based essentially on a reiteration that it is capable of developing its property, and that FDAD Maple was selected for political reasons, is irrelevant in the former instance and spe culative at best in the latter. Team Rhodi's arguments hardly rise to "proofs that preclude the possibility that there could have been any set of facts known to the legislative body . . . [that] would rationally support a conclusion that the enactment is in the public interest." Id. at 256 (quoting Bryant v. City of Atlantic City , 309 N.J. Super. 596, 610 (App. Div. 1998)) (alteration in original). We reject Team Rhodi's Fifth Amendment challenge to the City's use of eminent domain because, as the tria l court determined, and as the record amply demonstrates, the redevelopment of the study area following the blight designation demonstrates the City's action effectuated the public purpose of the redevelopment plan. Last, we find no abuse of discretion by the trial court in denying Team Rhodi the discovery to which it now claim s it was entitled. Affirmed.