SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-5403-93T5
ANTHONY M. SELLITTO, JR.,
Plaintiff-Appellant,
vs.
BOROUGH OF SPRING LAKE HEIGHTS,
THE MAYOR AND COUNCIL OF THE BOROUGH
OF SPRING LAKE HEIGHTS, ALBERT P.
RATZ, JR., Construction Official of
the Borough of Spring Lake Heights,
SMSA LIMITED PARTNERSHIP, a New York
Limited Partnership, and BELL ATLANTIC
MOBILE,
Defendants-Respondents.
Argued June 12, 1995 - Decided July 10, 1995
Before Judges Villanueva and Braithwaite.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County.
Anthony M. Sellitto, Jr., pro se, argued the
cause for appellant (Aballo & Sellitto,
attorneys; Mr. Sellitto, on the brief).
Robert R. Blasi argued the cause for
respondents Borough, Mayor and Council, and
Construction Official of Borough of Spring
Lake Heights (Mr. Blasi, on the letter
brief).
Richard D. Stanzione argued the cause for
respondents SMSA and Bell Atlantic Mobile
(Hiering, Dupignac & Stanzione, attorneys;
Mr. Stanzione, of counsel; Mr. Stanzione and
Sean E. Regan, on the brief).
Pringle & Quinn, attorneys for the Planning
Board of Spring Lake Heights (Joseph P.
Quinn, on the letter brief).
THE OPINION OF THE COURT WAS DELIVERED BY
VILLANUEVA, J.A.D.
Plaintiff appeals, pursuant to leave granted, from the
denial of his request for injunctive relief to restrain
defendant, Borough of Spring Lake Heights (borough), from leasing
certain of its municipal property to defendants SMSA Limited
Partnership and Bell Atlantic Mobile for their use as a cellular
telephone communications facility. The property in question was
already being used by the borough as a water tower. Bell
proposed to construct antenna panels on the existing tower and
build an accompanying equipment storage shed nearby. We reverse.
As of all relevant dates, the borough was the owner of Lot
18, Block 24. Plaintiff was the owner of Lot 21.02, Block 24,
which was adjacent to the borough's property, both of which are
in the borough's R-3 residential zone. Permitted principal uses
in this zone included "essential services" (§ 22-606.1 of the
borough's zoning code, revised 8/89).
Essential services shall mean the erection,
construction, alteration or maintenance by a
public utility or municipal agency, of
underground or overhead transmission,
distribution or collection systems necessary
for the furnishing of adequate service by
such utility or agency to the use on the same
lot or surrounding neighborhood, or for the
public health, safety or general welfare.
[§ 22-302 of the borough's zoning code,
revised 8/89.]
On November 22, 1993, the borough by resolution #104-1993 authorized the mayor to enter into a certain option and lease
agreement with Bell AtlanticSee footnote 1 with respect to this property,
which was executed on December 27, 1993.
According to this agreement, the borough granted an option
to Bell Atlantic to lease space on an existing water tower
situated on the borough's property
for the purpose of installing, maintaining
and operating an antenna array and associated
transmission lines and mounting apparatus,
and to lease a portion of said real property
consisting of approximately 800 square feet
for the purpose of constructing, maintaining
and operating a mobile communications
facility, consisting of an equipment building
of approximately 312 square feet to be
constructed by [Bell Atlantic] on the
premises at the base of the Tower, with a
right of way for access thereto, the right to
install and maintain wires, cables and
necessary connections between the equipment
[Bell Atlantic] will install in the equipment
building and the antenna array of up to
twelve (12) antennas, . . .
For consideration of $500, Bell Atlantic obtained the right to exercise its option up until May 31, 1994. On February 7, 1994, the option was exercised by formal notice to become effective March 1, 1994. The lease was for a five-year term, with options to extend for three additional five-year terms and one-year terms thereafter, and the annual rental for the first five years was to be $24,300. The lease was contingent upon Bell Atlantic's ability to use the premises as contemplated by obtaining all certificates, permits, licenses and other approvals
that may be required by any federal, state or local authority.
The lease was not submitted for public bidding because it was the
legal opinion of Robert R. Blasi, attorney for the borough, that
this was not required by law.
Bell Atlantic held a radio common carrier operating license
issued by the Federal Communications Commission, and was one of
only two such licensees in the region who was authorized to
provide such services. According to the certification of Blasi,
Bell Atlantic had first approached the borough in the summer of
1993 regarding its plan to erect a communications facility. The
borough's police chief conducted an exhaustive investigation of
such facilities and worked with Bell Atlantic to locate a site
that would have little or no impact on the surrounding area. The
site selected was the site of the borough's elevated water tank,
two additional storage tanks and main pump station.
Plaintiff attacked the proposed use on two grounds. First,
he claimed that the lease was null and void because it failed to
comply with the competitive bidding requirements of the Local
Lands and Buildings Law, N.J.S.A. 40A:12-1 to 12-30 (the LLBL),
and second, that the borough failed to adhere to its own zoning
ordinances by allowing a nonpermitted use to be constructed in
this residential zone and by not requiring a variance and site
plan approval for the project.
On April 29, 1994, plaintiff filed a verified complaint for
declaratory judgment with restraints in the Superior Court of New
Jersey against the following defendants: the Borough of Spring
Lake Heights, the Mayor and Council of the borough, Albert P.
Ratz, Jr. (the construction official of the borough) and Bell
Atlantic. This action will be referred to as the "borough
litigation." Plaintiff sought an order declaring Bell Atlantic's
lease of the borough's property to be null and void, requiring
the borough to submit the lease to competitive bidding, requiring
Bell Atlantic to obtain variance and site plan approval for its
proposed use of the property and restraining the borough's
construction official from issuing any building permits to
SMSA/Bell Atlantic.
Plaintiff, admittedly, did not file his complaint in lieu of
prerogative writs within forty-five days after: (1) the
option/lease agreement was executed on December 27, 1993; (2) the
option was invoked on February 7, 1994; and (3) the lease became
effective on March 1, 1994. See R. 4:69-6(a). The judge
nevertheless agreed to enlarge the time for filing such an
action, based upon R. 4:69-6(c), which permits a court to enlarge
the period of time "where it is manifest that the interest of
justice so requires." Because plaintiff alleged that he did not
become aware of the actions taken by the borough until two days
prior to April 29, 1994, the judge found that the interest of
justice would not be served by rigid application of the forty-five day period. Although defendants challenged the timeliness
of plaintiff's action in the trial court, they have not
reasserted that challenge on appeal.
On April 29, 1994, plaintiff obtained an order to show cause
and a temporary restraining order which restrained defendants
from further performing any construction work on the subject
property and which ordered defendants to show cause why plaintiff
should not be granted the relief requested. After hearing oral
argument on the return date, the court entered an order dated May
18, 1994, allowing plaintiff to file an amended complaint to
correct the name of defendant Bell AtlanticSee footnote 2 to "Bell Atlantic
Mobile Communications, Inc.," and to convert the action into one
in lieu of prerogative writs. On May 24, 1994, the court issued
a written opinion and order which denied plaintiff's request for
injunctive relief and dissolved the temporary restraints.
Relying on one particular provision of the LLBL, N.J.S.A.
40A:12-24, the court held that public bidding was not required.
It also held that a cellular communications facility is an
"essential service" within the meaning of the borough's zoning
ordinance; thus, it was a permitted use within the residential
zone and it required only minor site plan approval, which had
been sought by Bell Atlantic.
Three days later, plaintiff filed a separate verified
complaint in lieu of prerogative writs with restraints, this time
against defendants Planning Board of the Borough of Spring Lake
Heights (the planning board), and Bell Atlantic Mobile
Communications, Inc. (Bell Atlantic). This action will be
referred to as the "planning board litigation." In this
complaint, plaintiff asserted that the issue of whether
conditional use approval was required for the proposed use of the
property was still pending before another judge in the related
action, the "borough litigation."See footnote 3 Plaintiff sought an order
directing the planning board to require conditional use approval
for the site plan application of Bell Atlantic.
On June 1, 1994, the court denied plaintiff's request for
temporary restraints but ordered defendants to show cause on June
10, 1994, why plaintiff's requested relief should not be granted.
With respect to the issue of the borough's compliance with its
own zoning requirements, the judge agreed with plaintiff that,
where a municipality is acting as a private agency, it must abide
by zoning regulations. Nevertheless, because the judge concluded
that this communications facility met the definition of an
"essential service," he found it to be a permitted use within the
R-3 zone. In so concluding, the judge analogized this use to a
public utility and stated that it would be backward to take a
narrow view of the meaning of a public utility, especially in
light of the communications explosion that has recently taken
place and will continue to take place. The court also noted that
this proposed use met the definition of a minor site plan, and
that Bell Atlantic had recently applied for such approval.
On June 7, 1994, this court denied plaintiff's applications
for reinstatement of the restraining order and for leave to
appeal in the "planning board litigation." On the same date,
this court granted plaintiff's motion for leave to appeal in the
"borough litigation," limiting the issues on appeal to "the
invalidity of the lease because of failure to require public
bidding and because of the failure of the Mayor & Council to
consider the detrimental effect of the use on neighboring
property and its occupiers."
Plaintiff contends that the trial court erred in holding that the lease was not subject to the public bidding requirements of N.J.S.A. 40A:12-14 and in holding, instead, that N.J.S.A. 40A:12-24 permitted the lease to be executed without any such bidding. We agree. However, this is a troublesome issue because of the apparent inconsistencies between these two provisions.
The judge noted that it was curious that plaintiff was making this argument because plaintiff's real objection to the lease was the proposed use of the property, not the particular entity using it. However, the judge felt that, because there was only one other potential licensed user, there was no real chance of any competitive bidding. As such, by forcing the borough to place the lease out for bids, plaintiff would not accomplish his true purpose, which was to have the borough consider other uses for this property or other locations for this use.
The judge nevertheless went on to consider the merits of
plaintiff's argument. In essence, the judge recognized that
there were two statutory provisions which were arguably
controlling, both of which were contained within the LLBL and
which were enacted on the same day as the original legislation,
July 1, 1971.
The first of these provisions, N.J.S.A. 40A:12-14, was
deemed by the Legislature to be a new provision, effective July
1, 1971, because it did not have its source in any prior statute.
It was arguably the first statute to mandate that a municipality
which proposes to lease its property to a private person may do
so only after advertising for public bids. The statute in
pertinent part provides:
Any county or municipality may lease any
real property, capital improvement or
personal property not needed for public use
as set forth in the resolution or ordinance
authorizing the lease, other than county or
municipal real property otherwise dedicated
or restricted pursuant to law, and except as
otherwise provided by law, all such leases
shall be made in the manner provided by this
section.
(a) In the case of a lease to a private
person, except for a lease to a private
person for a public purpose as provided in .
. . (C. 40A:12-15)[See footnote 4], said lease shall be
made to the highest bidder by open public
bidding at auction or by submission of sealed
bids.
[N.J.S.A. 40A:12-14(a).]
The other provision at issue is one that had its origins in
R.S. 40:60-42, which in turn had its origins in the Home Rule Act
of 1917. According to N.J.S.A. 40A:12-24:
Every county or municipality may lease
for fixed and upon prescribed terms and for
private purposes any of the land or buildings
or any part thereof not presently needed for
public use to the person who will pay the
highest rent therefor. The use by the lessee
shall be of such character as not to be
detrimental to the building or the use of the
building or the use of the unleased part of
the building.
[emphasis added.]
Both in the trial court and on appeal, the parties have
approached the issue in terms of whether this latter statute,
N.J.S.A. 40A:12-24 (§ 24), requires public bidding. That is,
plaintiff argues that the only way for a municipality to find the
person who will pay the highest rent for the property is to
solicit public bids. Defendants argue that the Legislature must
have intended to dispense with the public bidding requirement in
this section of the statute because, if it had intended
otherwise, it would have included the express language found in
N.J.S.A. 40A:12-14 (§ 14). Again on appeal, the parties have
focused on the interpretation to be given the phrase "to the
person who will pay the highest rent therefor" contained in § 24.
However, this begs the real question, which is whether § 14
or § 24 applies here. Defendants have not satisfactorily
explained why § 14, which they concede does require public
bidding, does not apply to this transaction. Nor did the trial
judge satisfactorily explain his choice; rather, after referring
to both statutes, the judge merely concluded that they "approach
the issue with differing language and with a different intent."
We agree with the trial judge that § 24 does not by its
terms require public bidding. Nevertheless, reliance on this
section is misplaced. There is no reason why § 14 should not
have been invoked here. Both the legislative intent of the LLBL
and the judicial gloss which has been put on that legislative
enactment support the conclusion that § 14 applied here. In
addition, there was no competent proof before the trial court
that Bell Atlantic was "the person who will pay the highest rent
therefor."
This does not shed any light on why the Legislature, on the
same day and within the same bill: (1) enacted a new provision
(§ 14) which set forth in considerable detail the procedures
which had to be followed by a municipality when it leased its
public lands for a private purpose; and (2) retained an older
source provision (§ 24) which merely required the municipality to
find the person willing to pay the highest rent for land or
buildings not presently needed for public use before leasing the
property. This is not a question, then, of the more general
statute yielding to the more specific; nor is it a question of
the older statute yielding to the more recent. Given that the
two provisions were enacted simultaneously and that they used
almost identical introductory language, it is curious how they
wound up in the same enactment. Significant, however, is the
fact that § 24, which does not require bidding, is found in a
subheading to the LLBL entitled "OTHER MATTERS."
Our answer is found in the case law interpreting both the
LLBL and the Local Public Contracts Law, N.J.S.A. 40A:11- 1 to
11-49, also enacted on July 1, 1971. That is, our courts have
consistently held that the public bidding statutes are for the
benefit of the taxpayers and are to be construed as nearly as
possible with sole reference to the public good. Terminal
Construction Corp. v. Atlantic County Sewerage Authority,
67 N.J. 403, 409-10 (1975); Miller v. Passaic Valley Water Com'n,
259 N.J. Super. 1, 12 (App. Div.), certif. denied,
130 N.J. 601
(1992). Their objectives are to guard against favoritism,
improvidence, extravagance and corruption, and their aim is to
secure for the public the benefits of unfettered competition.
Pucillo v. Mayor & Council of Borough of New Milford,
73 N.J. 349, 356 (1977) (citing Terminal Constr. Corp. v. Atlantic
County, supra, 67 N.J. at 410); Miller v. Passaic Valley Water
Com'n, supra, 259 N.J. Super. at 12. See also Jersey City v.
Roosevelt Stadium Marina, Inc.,
210 N.J. Super. 315 (App. Div.
1986).
The purpose of competitive bidding is to obtain the best
economic result for the public entity and ultimately for the
taxpayer. Wasserman's Inc. v. Middletown,
137 N.J. 238, 246
(1994). In Disposmatic Corp. v. Mayor & Council of Kearny,
162 N.J. Super. 489 (Ch. Div. 1978), Judge Kentz held that the
leasing of municipally-owned property is governed by N.J.S.A.
40A:12-14 "except as otherwise provided by law" and that a
plaintiff challenging the procedure followed by a municipality
need not prove actual corruption or manipulation of the process
to be entitled to relief. Id. at 493, 495. Moreover, injunctive
relief is particularly appropriate in these types of cases. Id.
at 496.
Most significantly, our Supreme Court, in analyzing whether
§ 14 should be applied retroactively to leases executed before
July 1, 1971, specifically noted that this "new statute replaced
N.J.S.A. 40:60-42" and for the first time "requires public
bidding for leases of unused municipal property." Wasserman's
Inc. v. Middletown Tp., 137 N.J. at 243. That is, contrary to
N.J.S.A. 40:60-42, § 14(a) "requires public bidding if a
municipality proposes to lease property to a private person."
Ibid. The Supreme Court never mentioned § 24, even though the
language of § 24 is identical to N.J.S.A. 40:60-42 which the
Court said that § 14 "replaced." See ibid. The Wasserman's
Court went on to note that N.J.S.A. 40:60-42 had not required
public bidding for a lease to a private party, only that the
"`person pay the highest rent therefor.'" 137 N.J. at 245. This
conclusion puts to rest any seeming controversy regarding the
proper interpretation to be given to § 24. Therefore, if
N.J.S.A. 40:60-42 has been replaced by § 14, we cannot ascertain
what purpose the current § 24 serves.
The rule of construction that statutes which deal with same
matter or subject and seek to achieve the same overall
legislative purpose should be read in pari materia most obviously
applies when statutes in question were enacted during same
session or went into effect at same time, or where they make
specific reference to one another. Mimkon v. Ford,
66 N.J. 426,
433-34 (1975).
We believe § 14 prevails over § 24. Otherwise, no public
bidding would be required for leasing public land and buildings
not presently needed "to the person who will pay the highest rent
therefor." We cannot reconcile why the Legislature would adopt a
statute with conflicting language.
Because plaintiff only wanted the cellular communications
facility to be somewhere other than in his own neighborhood, that
does not mean that plaintiff, as a municipal taxpayer, does not
have the requisite standing. See Pucillo & Sons v. Belleville
Township,
249 N.J. Super. 536, 543 (App. Div.), certif. denied,
127 N.J. 551 (1991).
We reverse because of the borough's failure to submit the
lease to public bidding, in conformance with N.J.S.A. 40A:12-14(a).
Plaintiff also contends that the borough acted arbitrarily, capriciously and unreasonably in executing this lease because it failed to consider the detrimental effects of this particular use on the neighboring community.
Essentially, plaintiff's right to challenge the potential detrimental effects of this proposed use will come when he
appeals the planning board's decision to grant site plan approval
for the use. We denied plaintiff's motion for leave to appeal
from that decision.
The only action before us is the "borough litigation." We
did not afford any of the parties an opportunity to prove or
disprove the detrimental effects, if any, of the use. There was
no testimony taken before the trial judge; he merely concluded
that there was nothing before him which would indicate that the
municipality had failed to comply with its own zoning ordinances.
At the time of the judge's decision, Bell Atlantic had its site
plan application pending before the planning board. We assume
that the application was granted because, at oral argument, we
were told that improvements have been completed.
We further assume that a remand for a hearing on this issue
is unnecessary because of plaintiff's appeal of the "planning
board litigation."
Since the trial court's decision, we decided Nynex Mobile
Communications Co. v. Hazlet Township,
276 N.J. Super. 598 (App.
Div. 1994). We held that a proposed cellular communications
tower was an inherently beneficial use for purposes of the zoning
laws, notwithstanding its commercial for-profit nature. Id. at
609. With respect to the detrimental effects of such proposed
uses, the Nynex court concluded that "the so-called health and
safety issues are nothing but rank speculation." Id. at 612.
On the other hand, plaintiff has brought to our attention
Criscuola v. Power Authority of the State of New York,
81 N.Y 2d
649,
621 N.E.2d 1195,
602 N.Y.S.2d 588 (Ct. App. 1993), which
he claims supports the proposition that the Mayor and Council
should have considered the public's perception that a
transmitting facility, such as that proposed, may be dangerous,
and should therefore have considered the effect such perception
would have on local property values, even though plaintiff is
unable to present proof that a danger actually exists.
We reverse that part of the order of May 24, 1994, which
held that the subject lease was not subject to public bidding and
remand for the trial court to restrain the borough from enforcing
its lease with Bell Atlantic.
Footnote: 1 The optionee/tenant was actually SMSA Limited Partnership, a limited partnership in which Cellular Geographic Service Area, Inc., a subsidiary of Nynex Mobile Communications Company, was the General Partner. At some point, Nynex became known as Bell Atlantic. Footnote: 2 Plaintiff never changed the caption to reflect Bell Atlantic's full name. Footnote: 3 Inasmuch as the other judge had ruled on all the issues before him, whether public bidding was required and whether the proposed use was a permitted one in the zone, there was not any such issue then pending. Footnote: 4 N.J.S.A. 40A:12-15 applies to leases made for particular public purposes. That provision is not at issue here.