NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3318-15T3

MONTCLAIR STATE UNIVERSITY, APPROVED FOR PUBLICATION Plaintiff-Appellant, August 23, 2017

v. APPELLATE DIVISION

COUNTY OF PASSAIC and CITY OF CLIFTON,

Defendants-Respondents.

___________________________________

Argued May 31, 2017 – Decided August 23, 2017

Before Judges Koblitz, Rothstadt and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-2866-14.

Antonio J. Casas argued the cause for appellant (Windels Marx Lane & Mittendorf, LLP, attorneys; Samuel G. Destito, of counsel and on the briefs; Mr. Casas and Sandy L. Galacio, Jr., on the briefs).

Michael H. Glovin argued the cause for respondent County of Passaic (William J. Pascrell, III, Passaic County Counsel, attorney; Mr. Glovin, of counsel and on the brief).

Marvin J. Brauth argued the cause for respondent City of Clifton (Wilentz, Goldman & Spitzer, PA, attorneys; Mr. Brauth, of counsel and on the brief). The opinion of the court was delivered by

ROTHSTADT, J.A.D.

In Rutgers v. Piluso,

(1972), the Supreme Court

addressed the limits of a local government's authority to

regulate development of a state university's property that was

confined to its campus. In this dispute, we are asked to

determine whether those limits apply to a state university's

construction of a roadway that intersects with a county road.

For the reason expressed herein, we hold that the limits imposed

by Rutgers apply equally to the development proposal in this

case, reverse the trial judge's dismissal of plaintiff's

complaint and remand the matter for a trial.

Plaintiff Montclair State University (MSU) appeals from the

Law Division's March 7, 2016 order dismissing its complaint for

declaratory and injunctive relief that sought an order

permitting it to proceed with the development of a roadway from

its campus to Valley Road in Clifton. Prior to filing the

complaint, MSU spent approximately six years consulting with

defendants County of Passaic and City of Clifton, both of which

interposed various objections and concerns about the project.

Through various meetings between construction professionals, MSU

was able to satisfy most of defendants' concerns about the

roadway.

2 A-3318-15T3 In 2014, MSU submitted an application to the county for a

permit to install traffic controls at the proposed intersection

of the roadway and Valley Road. In its cover letter, MSU stated

that it was exempt under Rutgers from seeking any approvals from

Clifton's land use boards. When the county failed to respond,

MSU filed a complaint for declaratory judgment and injunctive

relief, seeking a determination that the county's refusal to

issue the permit was contrary to law and directing that it be

issued so MSU could construct the proposed roadway.

At a hearing held on the return date of an order to show

cause, the trial judge addressed the limits of the county's

authority to withhold approval. He stated that the county did

not have jurisdiction over the speed limit on the roadway as it

is on state land. He also noted that while defendants could be

legitimately concerned with a "palpably unsafe" intersection,

they could not block the proposal simply because it would

generate more traffic. Despite those observations, the judge

denied the relief plaintiff sought, reasoning MSU had not

complied with its obligations under Rutgers only because it

needed an updated traffic study. The judge, however,

specifically contemplated that he would be "review[ing the] up-

to-date expert reports" and making the ultimate determination

whether the project should proceed. On November 6, 2014, he

3 A-3318-15T3 entered an order requiring the parties to submit updated traffic

studies and requiring "the parties [to] consult, which shall

include, without limitation, appearances before the Planning

Boards of the City of Clifton and the County of Passaic." The

court retained jurisdiction in the event the parties could not

reach a resolution.

In accordance with the judge's order, the parties obtained

updated traffic studies that concluded traffic conditions had

not changed from the last completed traffic study in 2004.

MSU's expert concluded that its proposed "design does not create

[a] safety risk." Defendants' expert concluded that the roadway

did not meet certain American Association of State Highway and

Transportation (AASHTO) and New Jersey Department of

Transportation (NJDOT) criteria. On April 1, 2015, the parties

and their respective experts met again to resolve the matter.

Defendants made numerous recommendations to the proposed design,

which MSU reviewed with its experts. Following the meeting, MSU

proposed additional revisions to its plans, which the county

found "acceptable." The county also asked MSU's engineers to

consider redesigning the road for higher speeds, but MSU

rejected this recommendation explaining that it "would have the

unintended consequence of encouraging higher operating speeds

and could result in an unsafe condition." In response, the

4 A-3318-15T3 county disagreed, its counsel stating that a thirty-five mile-

per-hour design would support anticipated traffic volume and

explaining that "it is totally unreasonable to expect drivers to

adhere to a 15 or 20 mph speed limit along a newly constructed

roadway." MSU submitted a revised plan that reflected changes

that satisfied some of the county's concerns. The county,

however, refused to issue a permit because it believed the

roadway design continued to fail to meet applicable AASHTO/NJDOT

standards and because Clifton's approval was required for a

proposed traffic signal as it would impact municipal roadways.

Believing it had reached an impasse with defendants, MSU

wrote to the court and requested the matter be relisted for a

decision. Clifton objected, arguing that MSU had not returned

to its planning board. While awaiting a response from the

judge, MSU's and the county's engineers corresponded about the

roadway's design, the proposed traffic signal and speed limits.

Clifton did not participate in the exchanges between MSU and the

county.

The trial judge heard the matter again on February 25,

2016. MSU argued that it had revised its plans to resolve the

county's and Clifton's concerns regarding safety, that the only

area on which they could not agree was the design of the roadway

that was located entirely on MSU's property, and MSU had sole

5 A-3318-15T3 jurisdiction over the roadway. It also argued there was expert

testimony that confirmed the roadway design was safe, and had

met all of the requirements under Rutgers. The county

acknowledged that MSU had accommodated nearly all of the county

planning board's comments, but it still took issue with the

stopping distance from the bottom of the hill leading into the

intersection.

After considering the parties' arguments and without taking

any testimony, the judge dismissed MSU's complaint, finding that

he had an insufficient record to rely upon because MSU had not

appeared before the county's or Clifton's planning boards as he

previously ordered. The judge instructed MSU that its choices

were to appeal his determination or "set something up so there

can be a record [which could] be basically an encapsulation of

the old prior . . . hearings and the plans and how much of an

accommodation has already been made by the university."

On appeal, MSU relies on the holding in Rutgers and argues

that the trial judge abused his discretion by dismissing its

complaint without determining whether MSU met its obligation

under Rutgers "to act reasonably and consult with the county and

city" and by adding a requirement that MSU return to Clifton's

planning board for approval for any reason, including, for the

development of a record. Defendants respond by arguing Rutgers

6 A-3318-15T3 is "distinguishable" from this case because its exemption from

the authority of local zoning boards does not apply to

"legitimate safety concern[s]" about MSU's proposal.

We conclude from our review of the record and the

applicable legal principles that the trial judge correctly

recognized that Rutgers controlled MSU's application, but he

mistakenly exercised his discretion by dismissing MSU's

complaint and requiring the matter be heard by the municipal and

county planning boards for development of a record.

Like Rutgers University, MSU is a state university,1

N.J.S.A. 18A:64-45, and is therefore permitted to exercise

certain "governmentally autonomous powers."

; see also N.J.S.A. 18A:64-7 (granting state colleges

broad control over their property). In Rutgers, the Supreme

Court upheld the exclusion of Rutgers University's proposed land

development from local regulation.

. According to the Court, "the Legislature did not

intend the growth and development of Rutgers University to be

subject to restriction or control by local land use

1 MSU was originally a state college and later transitioned into a state university. Most recently, the Legislature enacted the Montclair State University Act, which placed it on par with Rutgers University as a research university. Montclair State University Act, L. 2017, c. 178 (supplementing and amending Title 18A of the New Jersey Statutes).

7 A-3318-15T3 regulations." Twp. of Franklin v. Den Hollander,

(2002).

A state university's "immunity [from regulation] is not

completely unbridled" and must not "be exercised in an

unreasonable fashion so as to arbitrarily override all important

legitimate local interests."

(citing Washington Twp. v. Village of Ridgewood,

(1958)). Like other state agencies immune from local

regulation under similar circumstances, a state university must

"weigh conscientiously local interests, to examine carefully

whether the proposed . . . facility is compatible with the

surrounding land uses and to consult the local ordinances and

authorities in making its . . . decision." Twp. of Franklin,

supra,

(quoting Garden State Farms, Inc. v. Bay,

(1978) (addressing "Commissioner of

Transportation['s] authority concerning the placement of

aeronautical facilities" within a community)). The university

has an "implied duty" to consider local interests that obviously

include legitimate "safety concerns."

at 151 (quoting

Holgate Prop. Assocs. v. Twp. of Howell,

(1996)).

To satisfy its obligation, a state university "ought to

consult with the local authorities and sympathetically listen

8 A-3318-15T3 and give every consideration to local objections, problems and

suggestions in order to minimize the conflict as much as

possible." Twp. of Fairfield v. State, Dep't of Transp.,

(App. Div.) (quoting Garden State Farms,

Inc., supra,

), certif. denied,

(2015). It must act reasonably in its consideration of local

concerns. See Kearny v. Clark,

(App. Div. 1986). A difference of opinion as to the best method

to address a local traffic safety concern alone, however, does

not support a finding that the state university acted

unreasonably. See Cedar Grove v. Sheridan,

(App. Div.) (addressing Department of Transportation's

placement of a traffic signal at a location opposed by local

residents through petitions and letters), certif. denied,

(1986); see also City of Newark v. N.J. Turnpike Auth.,

, appeal dismissed,

,

,

(1951).

In order to satisfy its obligation to reasonably consider

local safety concerns, a state university is not obligated to

appear before local land use boards. "The fact that [its]

officials did not appear before the Local Planning Board does

not establish that [it] acted unreasonably [as long as there is

9 A-3318-15T3 evidence that the university] listened to local objections and

considered them."

.

Because of the limits imposed on a state university's

decision making process, the immunity from regulation, which

Rutgers applied to dormitories and other on-site campus

construction, applies as well to a state university's proposed

construction of an on-site road that will intersect a local or

county road. In either case, it is clear that the state

university must reasonably take local safety concerns into

consideration when formulating and executing its plans.

The determination of whether a state university has

complied with its obligation to consult and consider local

concerns is a judicial function not conditioned upon

consideration by a local zoning board. A municipal planning

board "lacks standing and jurisdiction over the development

project [because g]enerally, local zoning and planning

regulations cannot affect the State's authority to carry out

public functions for the benefit of all the people of the State,

especially on the State's own land." Jersey City v. State Dep't

of Envtl. Prot.,

(App. Div.) (citing

) (finding appellate review

appropriate where issue was whether agency met its obligation

when appeal arose from final agency decision), certif. denied,

10 A-3318-15T3

(1988). Unlike judicial review of a land use

board's final decision that requires a trial on the record

developed before a local board, see R. 4:69; see also Willoughby

v. Planning Bd. of Twp. of Deptford,

(App. Div. 1997), disputes as to whether a state university

satisfied its obligation to consider local concerns is a matter

to be determined based upon a record developed at a trial, see

N.J.S.A. 2A:16-58, to the extent any facts are in dispute or are

not clear. Cf. Jersey City, supra,

(finding "[t]he facts surrounding the controversy [were]

clear").

Applying these guiding principles here, we are constrained

to remand this matter to the trial judge for reinstatement of

plaintiff's complaint and a trial, if necessary, for the judge

to determine whether MSU satisfied its obligation under Rutgers.

We observe that the record contains substantial evidence of the

parties' efforts to identify and address local concerns over

many years, which the trial judge may solely rely upon in his

discretion in determining whether MSU satisfied its duty to

consider those concerns. If an evidentiary hearing is required,

it is to be held before the judge.

Reversed and remanded for further proceedings consistent

with our opinion. We do not retain jurisdiction.

11 A-3318-15T3