IN THE MATTER OF A USE VARIANCE APPLICATION SUBMITTED AS PART OF FILE NO. 17-239 MEPT LINCOLN CROSSING LLC/LINCOLN GATEWAY – NEW BLDG/ VARIANCE BLOCK 451.01, LOT 14.011, IN THE TOWNSHIP OF NORTH BERGEN AND BLOCK 155, LOTS 1.03, 1.04 AND 6, IN THE TOWN OF SECAUCUS (NEW JERSEY SPORTS AND EXPOSITION AUTHORITY) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1391-18T3
IN THE MATTER OF A USE
VARIANCE APPLICATION
SUBMITTED AS PART OF FILE
NO. 17-239 MEPT LINCOLN
CROSSING LLC/LINCOLN
GATEWAY – NEW BLDG/
VARIANCE BLOCK 451.01,
LOT 14.011, IN THE TOWNSHIP
OF NORTH BERGEN AND
BLOCK 155, LOTS 1.03, 1.04 AND
6, IN THE TOWN OF SECAUCUS.
_______________________________
Argued November 21, 2019 – Decided August 4, 2020
Before Judges Suter and DeAlmeida.
On appeal from the New Jersey Sports and Exposition
Authority.
Joseph B. Fiorenzo argued the cause for appellant
Towers Associates, Ltd. (Sills Cummis & Gross, PC,
attorneys; Joseph B. Fiorenzo, of counsel and on the
briefs).
Eric D. Mc Cullough argued the cause for respondent
MEPT Lincoln Crossing, LLC (Waters Mc Pherson, Mc
Neill, PC, attorneys; Eric D. Mc Cullough, of counsel
and on the brief).
Frederick William Alworth argued the cause for
respondent New Jersey Sports and Exposition
Authority (Gibbons PC, attorneys; Frederick William
Alworth and Douglas J. Janacek, on the brief).
PER CURIAM
Appellant Towers Associates, Ltd. (Towers) appeals from two October
18, 2018 resolutions of the Board of Commissioners of the New Jersey Sports
and Exposition Authority (NJSEA) relating to the approval of a use variance
permitting respondent MEPT Lincoln Crossing, LLC (MEPT) to construct a
warehouse on its property. We affirm.
I.
The following facts are derived from the record. NJSEA is an independent
authority created by statute with broad zoning authority over the Hackensack
Meadowlands District (District), a 30.4-square-mile area in Bergen and Hudson
Counties. See N.J.S.A. 5:10A-7 to -18; Infinity Broadcasting Corp. v. N.J.
Meadowlands Comm'n, 187 N.J. 212, 215-16 (2006).1
MEPT owns a 19.9-acre parcel (the Property) in the District's Regional
Commerce Zone zoned for commercial purposes, not including warehouses.
1
The New Jersey Meadowlands Commission was merged into NJSEA in
February 2015 by the Hackensack Meadowlands Agency Consolidation Act.
N.J.S.A. 5:10A-1 to -68.
A-1391-18T3
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The Property is improved with a 236,207-square-foot building most recently
used by the now-defunct clothing retailer Daffy's as a warehouse/distribution
facility, corporate headquarters, and accessory retail outlet, which MEPT
proposes to replace. The Property has been vacant since 2012.
Towers owns two adjacent lots, one of which is developed with a Home
Depot and the other of which is undeveloped. A principal of Towers testified
during a public hearing that it intends to develop the vacant parcel with a hotel,
although no application for such development has been submitted to NJSEA.
A private roadway, Daffy's Way, traverses portions of the Property and
Towers' parcels and is governed by a reciprocal easement agreement (REA)
executed in 1992 by Towers and MEPT's predecessor in title. In the REA, each
party granted to the other mutual and reciprocal easements for "vehicle and
pedestrian ingress, egress and passage and re-passage over" the portions of the
parcels on which the roadway is situated.
In 2015, MEPT filed a land use application with NJSEA for a use variance
to construct a warehouse on the Property. On February 23, 2016, MEPT
withdrew its 2015 application without prejudice.
In June 2017, MEPT filed another land use application with NJSEA
seeking a use variance for the construction of a warehouse and distribution
A-1391-18T3
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facility on the Property. The 2017 application, the approval of which is
presently before this court, differed in significant ways from MEPT's 2015
application. The 2017 application featured a significant reduction in the
proposed warehouse's size, a relocation of the proposed facility's loading docks
and parking, changes to site circulation, and other revisions. Towers opposed
the 2017 application. 2
Over seven days in 2018, the NJSEA staff, comprised of a panel of
engineers and professional planners, held public hearings on MEPT's
application. Towers, through its counsel, appeared at each day of the hearings
and cross-examined MEPT's experts, presented evidence, and called witnesses.
After the hearings, NJSEA staff held the record open to allow MEPT and the
objectors, including Towers, to submit written summations, despite such
submissions not being typical of public hearings before NJSEA staff.
On August 24, 2018, NJSEA staff issued a fifty-one-page report
recommending approval of MEPT's application, subject to several conditions.
Towers thereafter filed a notice of appeal with the NJSEA, challenging
the staff's recommendations and seeking a hearing before the Office of
2
Respondent Vee Jay International, which operates a hotel on a neighboring
parcel, also opposed the application but did not participate in this appeal.
A-1391-18T3
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Administrative Law (OAL) in accordance with N.J.A.C. 19:4-4.19(b)(1) and
N.J.S.A. 52:14B-3.2, a provision of the Administrative Procedure Act (APA).
MEPT opposed the request, arguing Towers lacked standing to demand a
hearing as a third-party objector.
On October 18, 2018, after receiving written submissions from Towers
and MEPT, NJSEA adopted a resolution denying Towers' request for a hearing,
concluding it did not have a sufficient particularized property interest affected
by MEPT's application to grant standing to demand a hearing (the Hearing
Resolution). NJSEA issued a detailed and comprehensive written statement
outlining the reasons for its decision.
On the same day, in a separate resolution NJSEA adopted the staff's
recommendation and granted MEPT the requested use variance subject to the
conditions recommended by staff (the Variance Resolution). The conditions
included MEPT: (1) providing an air quality plan for review that includes air
quality monitoring provisions for a minimum of one year from completion of
the building; (2) submitting an as-built noise evaluation within sixty days of
completion of the building in order to show compliance with N.J.A.C. 19:4-7.3;
(3) revising the site plan to eliminate seven trailer parking spaces, relocat e the
proposed guard booth, and include a sign prohibiting tractor-trailers from
A-1391-18T3
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utilizing the drive aisle through the parking lot; and (4) producing a plan to
reconfigure the Daffy's Way driveway for enhanced two-way traffic flow to
reduce the potential for conflicting movements between vehicles travelling in
opposite directions. The Variance Resolution attached and incorporated the
staff's report, which comprehensively analyzed each factor in N.J.A.C. 19:4-
4.14(e)(2) as prerequisites to the grant of a use variance.
This appeal followed. Towers raises the following arguments.
POINT I
TOWERS HAD A CLEAR LEGAL RIGHT TO
APPEAL THE STAFF RECOMMENDATION TO
THE OAL FOR A HEARING SINCE IT HAD A
PARTICULARLIZED PROPERTY RIGHT THAT
WAS DIRECTLY AND NEGATIVELY AFFECTED
BY THE GRANTING OF THE USE VARIANCE.
POINT II
THE NJSEA ERRED IN GRANTING A USE
VARIANCE AS THE APPLICANT UTTERLY
FAILED TO MEET ITS BURDEN TO ESTABLISH
ALL OF THE PRECONDITIONS FOR APPROVAL
CONTAINED IN N.J.A.C. 19:4-4.14(e)(2) AND
N.J.A.C. 19:4-1.14(f).
POINT III
TOWERS' DUE PROCESS RIGHTS WERE
VIOLATED BY THE NJSEA STAFF AND THE
NJSEA BOARD OF COMMISSIONERS BECAUSE
NJSEA['S] STAFF'S COUNSEL BARRED CROSS-
A-1391-18T3
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EXAMINATION ON RELEVANT MATTERS,
REFUSED TO PERMIT THE INTRODUCTION OF
RELEVANT DOCUMENTS INTO EVIDENCE
DURING THE HEARING AND BECAUSE THE
NJSEA BOARD OF COMMISSIONERS
ABDICATED THEIR RESPONSIBILITY TO
REVIEW MEPT'S APPLICATION.
II.
A "strong presumption of reasonableness attaches to the actions of the
administrative agencies." In re Carroll, 339 N.J. Super. 429, 437 (App. Div.
2001) (quoting In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993)). The
scope of our review of a final decision of an administrative agency is limited
and we will not reverse such a decision unless it is "arbitrary, capricious, or
unreasonable, or . . . not supported by substantial credible evidence in the record
as a whole." In re Stallworth, 208 N.J. 182, 194 (2011) (citing Henry v. Rahway
State Prison, 81 N.J. 571, 579-80 (1980)). When making that determination, we
consider:
(1) whether the agency's action violates express or
implied legislative policies, that is, did the agency
follow the law; (2) whether the record contains
substantial evidence to support the findings on which
the agency based its action; and (3) whether in applying
the legislative policies to the facts, the agency clearly
erred in reaching a conclusion that could not reasonably
have been made on a showing of the relevant factors.
A-1391-18T3
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[Ibid. (citing In re Carter, 191 N.J. 474, 482-83
(2007)).]
We are "in no way bound by the agency's interpretation of a statute or its
determination of a strictly legal issue . . . ." Carter, 191 N.J. at 483 (quoting
Mayflower Sec. Co. v. Bureau of Sec., 64 N.J. 85, 93 (1973)). We will, however,
generally "afford substantial deference to an agency's interpretation of a statute
that the agency is charged with enforcing." Patel v. N.J. Motor Vehicle Comm'n,
200 N.J. 413, 420 (2009) (quoting Richardson v. Bd. of Trs., 192 N.J. 189, 196
(2007)). Substantial deference must be extended to an agency's interpretation
of its own regulations, particularly on technical matters within the agency's
expertise. In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478, 488-89
(2004).
III.
Under the APA, an "applicant" is entitled to request an adjudicatory
hearing with respect to a decision by the NJSEA on its application for a use
variance. The APA defines "applicant" as an entity seeking an "agency license,
permit, certificate, approval, chapter, registration[,] or other form of permission
required by law . . . ." N.J.S.A. 52:14B-3.2. Where an applicant files an appeal
from an NJSEA staff recommendation, the appeal is transmitted directed to the
OAL for a hearing. N.J.A.C. 19:4-4.19(b). An appeal filed by a non-applicant,
A-1391-18T3
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however, may not be forwarded to the OAL for a hearing unless the NJSEA
determines the non-applicant has a sufficient interest as defined by the APA.
N.J.A.C. 19:4-4.19(b)(4).
The APA prohibits any state agency from adopting a regulation that gives
a "third party" the right to appeal a permit decision in a contested case hearing
at the OAL. N.J.S.A. 52:14B-3.3(a); N.J.S.A. 52:14B-3.1(d). A third party is
defined as any person other than:
a. An applicant . . . .
b. A State agency; or
c. A person who has a particularized property
interest sufficient to require a hearing on constitutional
or statutory grounds.
[N.J.S.A. 52:14B-3.2.]
Accordingly, a non-applicant can demand an adjudicatory hearing only
where the non-applicant can demonstrate: (1) a right to a hearing under an
applicable statute; or (2) a "particularized property interest of constitutional
significance that is directly affected by an agency's permitting decision." In re
NJPDES Permit No. NJ0025241, 185 N.J. 474, 481-82 (2006). "[T]hird parties
generally are not able to meet the stringent requirements for constitutional
standing in respect of an adjudicatory hearing." Id. at 482.
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These limitations are "intended to prevent the processing of permit
applications by State agencies from being bogged down by time-consuming and
costly formal hearings" which "consume substantial public and private
resources." In re Riverview Dev., LLC, 411 N.J. Super. 409, 424 (App. Div.
2010). As the Legislature found, giving third parties the right to hearings would
"give rise to a chaotic unpredictability and instability that would be most
disconcerting to New Jersey's business climate and would cripple economic
development . . . ." N.J.S.A. 52:14B-3.1(c).
Having considered the record in light of the applicable legal precedents,
we affirm the Hearing Resolution for the reasons expressed in the
comprehensive written final agency decision accompanying the Resolution. R.
2:11-3(e)(1)(D). We add the following comments.
Towers concedes it is not an applicant before the NJSEA. It argues it has
a statutory right to a hearing on MEPT's variance application because: (1)
increased truck traffic on Daffy's Way will directly affect the viability and
efficiency of the business on Towers' adjoining property and the future
development of its vacant parcel; and (2) its rights under the REA will be
affected by the reconfiguration of a curbed island within Daffy's Way on
MEPT's property and the increased costs of repairing and maintaining Daffy's
A-1391-18T3
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Way as a result of MEPT's proposed use. We agree with the NJSEA's final
determination that none of those purported interests are sufficient to create a
right to a hearing.
"[L]andowners objecting to the development of neighboring property" do
not, by proximity alone, "have a particularized property interest warranting an
adversarial hearing before an administrative law judge." In re Freshwater
Wetlands Gen. Permits, 185 N.J. 452, 470 (2006) (citing Spalt v. DEP, 237 N.J.
Super. 206, 208-11 (App. Div. 1989)). Our courts have consistently held that a
generalized property right shared with other property owners, such as collateral
economic impacts, traffic, views, quality of life, recreational interest, and
property values, are insufficient to establish a third-party right to an adjudicatory
hearing. In re Freshwater Wetlands Gen. Permits, 185 N.J. at 470; In re
Riverview Dev., 411 N.J. Super. at 429; In re AMICO/Tunnel Carwash, 371 N.J.
Super. 199, 212 (App. Div. 2004); In re Waterfront Dev. Permit No. WD88-
0443-1, Lincoln Harbor Final Dev., 244 N.J. Super. 426, 436 (App. Div. 1990);
Normandy Beach Improv. Ass'n v. Comm'r, DEP, 193 N.J. Super. 57, 61 (App.
Div. 1983).
The record supports NJSEA's determination that Towers' expressed
interest in the impact of increased traffic on Daffy's Way on its tenant's business
A-1391-18T3
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is a generalized property right not of the type creating a right to an administrative
hearing on MEPT's variance application. The same is true for NJSEA's
conclusion that Towers' argument the Variance Resolution will adversely affect
the future development of its vacant parcel is speculative and, thus, legally
insufficient to create a right to a hearing.
In addition, the record supports NJSEA's determination that, although
Towers has a property interest in the REA, that interest is not directly affected
by the Variance Resolution. As the agency aptly explained,
While Towers undoubtedly has a property interest in
the REA, that interest is not weakened by the grant of a
variance to MEPT. Towers['] rights under the REA
remain subject to enforcement in an action in Superior
Court. Since the variance does not enable MEPT to
violate its obligations under the REA and because
Towers is still entitled to initiate an action under the
REA to enforce such obligations, the NJEA's grant of a
variance does not "impact" whatever constitutional
rights Towers has with respect to the REA.
If, as Towers claims, MEPT's proposed use of its property, realignment of
a portion of Daffy's Way, and other improvements to the roadway violate the
REA, Towers can pursue available remedies under the agreement. The NJSEA
variance approval process is not the appropriate forum for resolution of any
disputes MEPT and Towers may have with respect to the scope of their rights
under the REA.
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IV.
Our review of the record revealed ample support for NJSEA's issuance of
a use variance to MEPT. We therefore affirm the Variance Resolution for the
reasons expressed in the extensive and detailed written decision of the agency.
R. 2:11-3(e)(1)(D). NJSEA adopted its staff's report that exhaustively addressed
each of the preconditions for approval set forth in N.J.A.C. 19:4-4.14(e)(2) and
(f), considered Towers' objections, and included written findings of fact
supported by the record. We defer to the agency's expertise where, as is the case
here, the record fully supports its decision.
We have carefully considered Towers' remaining arguments, including its
claim to have been denied due process, and conclude they lack sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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