FIRST AVENUE REALTY, LLC VS. THE CITY OF ASBURY PARK(L-402-14, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2603-15T2

FIRST AVENUE REALTY, LLC,

Plaintiff-Appellant,

v.

THE CITY OF ASBURY PARK, a
municipal corporation, and
ASBURY PARTNERS, LLC, a
New Jersey Limited Liability
Company,

Defendants-Respondents.
_______________________________

Submitted June 1, 2017 – Decided July 12, 2017

Before Judges Manahan and Lisa.

On appeal from Superior Court of New Jersey,
Monmouth County, Law Division, Docket No. L-
402-14.

Paul V. Fernicola & Associates, LLC,
attorneys for appellant (Paul V. Fernicola,
of counsel and on the brief).

Scarinci & Hollenbeck, LLC, attorneys for
respondent City of Asbury Park (Roshan D.
Shah, of counsel and on the brief).

Becker LLC, attorneys for respondent Asbury
Partners, LLC (Martin L. Borosko, of
counsel; David J. Sprong, on the brief).
PER CURIAM

Plaintiff First Avenue Realty, LLC, appeals from a

dismissal of its complaint seeking damages against defendants,

the City of Asbury Park (City) and Asbury Partners, LLC (Asbury

Partners). We affirm.

Plaintiff was the former owner of property located at 213-

215 First Avenue in the City of Asbury Park (property). The

property is a multi-family apartment building consisting of

thirty-two units sited in an area deemed to be "blighted," and

subject to the City's Waterfront Redevelopment Plan (the Plan)

adopted in 2002. Asbury Partners was designated by the City as

the Master Developer for the Plan pursuant to an Amended and

Restated Redeveloper and Land Disposition Agreement (Agreement).

In April 2008, plaintiff applied for, and received, permits

to perform certain repairs to the property. Due to heavy rain

during the course of those repairs, a tarp blew off the roof

resulting in significant damage. Based upon this occurrence,

the City deemed the property uninhabitable and required the

tenants be relocated.

On August 4, 2008, the City's construction official

performed an inspection of the property and determined that

plaintiff was performing renovations and repairs beyond the

scope of work authorized by the permits previously issued by the

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City. The City issued a stop-work order, prohibiting plaintiff

from performing any additional work beyond the roofing, plumbing

and siding. The order further required plaintiff to submit

detailed plans and specifications regarding any work beyond the

scope of the permits.

Plaintiff applied to the City's zoning official for a new

zoning permit. The zoning official determined that the proposed

work constituted "redevelopment" pursuant to N.J.S.A. 40:12-4,

the New Jersey Local Redevelopment Housing Law (LRHL), and

denied the permits. Under the LRHL, plaintiff was required to

obtain subsequent developer status from Asbury Partners as

required by the Agreement. As a subsequent developer, plaintiff

would be required to pay a fee to cover infrastructure

improvements made by Asbury Partners to other areas in the

redevelopment zone.

Plaintiff did not appeal the City's stop-work order or the

denial of the new zoning permits. Instead, plaintiff filed a

civil complaint in the Superior Court naming the City and Asbury

Partners as defendants. On July 15, 2009, the parties entered

into a consent order whereby plaintiff voluntarily withdrew the

action based upon a failure to exhaust administrative remedies.

Rather than pursue those remedies, plaintiff filed an action in

the United States District Court for the District of New Jersey.

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Upon motion by Asbury Partners, the federal action was dismissed

with prejudice.

The instant action commenced when plaintiff filed a second

complaint in the Superior Court. Asbury Partners and the City

filed a motion to dismiss arguing that plaintiff failed to

exhaust its administrative remedies. Specifically, they argued

that plaintiff did not comply with the requirements of the Plan

by obtaining status as a subsequent developer and paying the

off-site infrastructure fee. By the terms of the consent order

dismissing the original complaint, plaintiff admitted it was

required to exhaust administrative remedies.

The judge held that plaintiff was required to comply with

the procedural and substantive requirements of the Agreement.

In reaching the decision, the judge noted that the Plan at issue

was the same plan which was the subject of this court's decision

in Jersey Urban Renewal, LLC v. City of Asbury Park, 377 N.J.

Super. 232 (App. Div.), certif. denied, 185 N.J. 392 (2005).

In Jersey Urban Renewal, the owner applied for a proposed

renovation to its dilapidated apartment building, which was

located in a redevelopment zone. Id. at 234. The application

was denied because the plaintiff did not obtain status as a

subsequent developer, as required in the adopted Redevelopment

Plan. Ibid. We upheld the application's denial, finding that

4 A-2603-15T2
there was "nothing in either the LRHL or the Plan which

[permitted the] plaintiff to escape the Plan's procedural and

substantive requirements." Id. at 237.

In his statement of reasons, the judge cited to Jersey

Urban Renewal, finding:

When an area is found to be blighted,
the adoption of a redevelopment plan is an
independent municipal action which is
governed by separate provisions of the Local
Redevelopment Law. N.J.S.A. 40A:12A-7a
provides that a redevelopment plan must be
"adopted by ordinance" and "shall include an
outline for the planning, development,
redevelopment, or rehabilitation of the
project area[.]" The redevelopment plan
must indicate "[p]roposed land uses" for
"the project area[,]" N.J.S.A. 40A:12A-
7a(2), which "supersede applicable
provisions of the development regulations of
the municipality or constitute an overlay
zoning district within the redevelopment
area." Thus, one component of a
redevelopment plan is the zoning or rezoning
of the redevelopment area.

[Id. at 235 (citations omitted).]

In granting the motion to dismiss, the judge held that the

complaint's averments failed to state a basis for its non-

compliance with the Agreement. Further, the judge held that the

work plaintiff had done to the property was properly categorized

as "redevelopment." Therefore, plaintiff was required to obtain

status as a subsequent developer. This appeal followed.

Plaintiff raises the following points on appeal:

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 POINT I

THE TRIAL COURT ERRED WHEN DISMISSING
[PLAINTIFF'S] CLAIMS AS A MATTER OF LAW.

POINT II

[DEFENDANTS] FAILED TO MEET THE STANDARD FOR
MOTION TO DISMISS.

POINT III

[DEFENDANTS] ACKNOWLEDGE THAT CLAIMS OF
INVERSE CONDEMNATION ARE EXCLUDED FROM THE
TORT CLAIM[S] ACT.

POINT IV

[DEFENDANTS'] ACTIONS VIOLATED ESTABLISHED
LAW WHICH GIVES RISE TO [PLAINTIFF'S]
CLAIMS.

POINT V

EXHAUSTION OF REMEDIES IS NOT REQUIRED WHEN
SAME WOULD BE FUTILE.

POINT VI

[PLAINTIFF] IS NEITHER ESTOPPED NOR HAS
WAIVED ITS RIGHT TO BRING THESE CLAIMS.

POINT VII

[DEFENDANT] ASBURY PARTNERS, LLC[,]
CONSTITUTES A STATE ACTOR AND [PLAINTIFF'S]
CLAIM INVOLVE[D] THE ACTIONS OF BOTH
[DEFENDANTS] IN CONCERT.

We apply a plenary standard of review to a court's decision

to grant a motion to dismiss. Rezem Family Assocs., LP v.

Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.),

6 A-2603-15T2
certif. denied, 208 N.J. 368 (2011). It is a "well-established

principle that our review of a trial judge's conclusions of law

is de novo." Triarsi v. BSC Grp. Servs., LLC, 422 N.J. Super.

104, 113 (App. Div. 2011). We accord no deference to the trial

judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463,

478 (2013).

In considering whether dismissal is proper, a court must

"search the allegations of the pleading in depth and with

liberality to determine whether a cause of action is 'suggested

by the facts.'" Rezem Family Assocs., LP, supra, 423 N.J.

Super. at 113 (quoting Printing Mart-Morristown v. Sharp Elec.

Corp., 116 N.J. 739, 746 (1989)). The plaintiff should be

afforded "every reasonable inference of fact." Printing Mart,

supra, 116 N.J. at 746. The question is "whether the fundament

of a cause of action may be gleaned even from an obscure

statement of claim, opportunity being given to amend if

necessary." Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l

Park, 43 N.J. Super. 244, 252 (App. Div. 1957)).

In light of our standard of review, we affirm the dismissal

of plaintiff's complaint substantially for the reasons set forth

in Judge Joseph Quinn's thorough and well-reasoned opinion. We

add only the following.

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 Under the exhaustion doctrine, parties must "pursue

available internal proceedings to conclusion before seeking

judicial intervention." Hernandez v. Overlook Hosp., 149 N.J.

68, 73 (1997) (citing Garrow v. Elizabeth Gen. Hosp. &

Dispensary, 79 N.J. 549, 559 (1979)). The doctrine stems, in

part, from our desire to "discourage piecemeal litigation."

Garrow, supra, 79 N.J. at 559. Additionally, "the expertise of

an administrative [body] may not be exercised or known until it

renders its final decision, and usually upon judicial review due

deference is accorded [to] that expertise." Ibid.

We have recognized certain exceptions to the exhaustion

doctrine. Id. at 561. These include circumstances "when only a

question of law need be resolved; when the administrative

remedies would be futile; when irreparable harm would result;

when jurisdiction of the [body] is doubtful; or when an

overriding public interest calls for a prompt judicial

decision[.]" Ibid. (citations omitted).

Here, we find that none of the exceptions cited in Garrow

are applicable. The matters in dispute did not exclusively

involve a matter of law. There was no demonstration by

plaintiff of irreparable harm. Crowe v. De Gioia, 90 N.J. 126

(1982). There was no issue regarding jurisdiction. Further, we

reject plaintiff's argument that it could proceed without

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exhaustion of the approval process, as that process would have

proven "futile." While it may be "uncertain" that plaintiff

would obtain the necessary approval to perform the work it

sought to do, uncertainty of result is not synonymous with

"futile."

Plaintiff’s remaining arguments, not specifically addressed

herein, lack sufficient merit to warrant discussion in a written

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

Affirmed.

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