EVELYN A. GUERRA, et al., v. Plaintiffs, BOROUGH OF EATONTOWN, et al., Defendants. SUPERIOR COURT OF NEW JERSEY DOCKET NO. MON-L-3767-16 LAW DIVISION - MONMOUTH COUNTY EATONTOWN MONMOUTH MALL, LLC’S BRIEF IN SUPPORT OF ITS MOTION TO INTERVENE PURSUANT TO RULES 4:33-1 AND 4:33-2 Of Counsel and on the Brief: Robert E. Levy, Esq. Patrick J. McNamara, Esq. On the Brief: Roshan D. Shah, Esq. ROBERT E, LEVY, ESQ. (11501976) SCARINCI & HOLLENBECK, LLC ATTORNEYS ATLAW 1100 Valley Brook Avenue P.O. BOX 790 Lyndhurst, NJ 07071-0790 T: (201) 896-4100 F: (201) 896-8660 Attorneys for Eatontown Monmouth Mall, ILCTABLE OF CONTENTS PRELIMINARY STATEMENT .sscuscnsssnennaeie FACTUAL AND PROCEDURAL BACKGROUND. A. The Monmouth Mall.. B. Ordinance 10-2016, The First’ Step Towards Redevelopment, C. Plaintiffs’ Complaint... EMM IS ENTITLED TO INTERVENE AS A MATTER OF RIGHT. ‘A. EMM Has A Legally-Cognizable Interest, As It Owns ‘The Monmouth Mall, The Very Property Subject To Ordinance 10-2016. An Adverse Ruling Against Eatontown Will Adversely Impact EMM, Including Its Planned a Redevelopment Of The Monmouth Mall... C. _ EMM’s Interests Are Not Adequately Represented. ...... D. _ EMM’s Application To Intervene Is Timely. POINT IL ALTERNATIVELY, EMM SHOULD BE PERMITTED TO INTERVENE AT THE TRIAL COURT'S DISCRETION. CONCLUSION .ssscssnstentsnesinssinareneaneniensna 4845-1980-5757.%. 2 iTABLE OF AUTHORITIES Page(s) Cases Allstate NJ. Ins, Co. v, Neurology Pain Assocs., 418 N.J, Super. 246 (App. Div, 2011) Am. Civil Liberties Union of NJ, Ine. v. Cty. af Hudson, 352 NJ, Super. 44 (App. Div. 2002) ce Atl. Emplrs Ins. Co. v. Tots & Toddlers Pre-Sch. Day Care Ctr. 239 N.J. Super. 276 (App. Div. 1990) Chesterbrooke Ltd. P’ship v. Planning Bd. of Tp. of Chester, 297 N.J, Super. 118 (App. Div. 1989). 2,7,8 Clarke v. Brown, 101 N.J. Super. 404 (Law Div. 1968)... ae 0 Hanover v. Morristown, 118 N.J. Super. 136 (Ch. 1972)... seeeesnnseneiedO Mechan v. K.D. Partners, L.P., 317 N.J. Super. 563 (App. Div. 1998). » 7 1 NJ. Div. of Youth & Family Ser UDP. 422 NJ. Super. 583 (App. Div. 2011)... eee Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967). ei oe Zirger v. Gen. Accident Ins. Co. 144 Nal. 327 (1996) nse 1.12 Statutes NAS. § 24:16-53 NulS.A. $11 Rule 4:33-1 42,7531 Rule 4:33-2... 1,3, 1,12 845-980-5767, % 1 tiPRELIMINARY STATEMENT This case concerns a challenge to the Borough of Eatontown's adoption of Ordinance 10-2016, which rezoned the land on which the Monmouth Mall sits and opened the door to redeveloping it into a dynamic mixed-use space, one which would offer Eatontown residents and visitors a premier destination to eat, shop, live and play. Proposed-Intervenor Eatontown Monmouth Mall, LLC (EMM) is the property owner and plans to redevelop the Monmouth Mall into a modern multi-purpose regional center, the first of its kind in New Jersey. EMM stands ready to invest more than $300 million into its redevelopment efforts and ensure the Monmouth Mall's vitality for current and future Eatontown residents and visitors. Plaintiffs, a group of Eatontown landowners, nakedly assert that the ordinance “adversely impacts” their property and, thus, the Borough’s decision to adopt it was arbitrary and capricious. They also complain that the vote adopting Ordinance 10-2016 was tainted by Mayor Dennis J. Connelly and the Borough Council's failure to comply with the Open Public Meetings Act, N.J.S.A. § 10:4-6, et seg., and their failure to make a formal motion to approve the ordinance. If successful, this challenge will inevitably and indefinitely delay EMIM’s redevelopment efforts. Accordingly, EMM now moves to intervene pursuant to Rule 4:93-1 (intervention as of right) and Rule 4:33-2 (permissive intervention). EMM is entitled to intervene as of right. A party seeking to intervene must meet four ‘@) claim ‘an interest relating to the property or transaction which is the subject of the action,’ (2) show he is ‘so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest,’ (3) demonstrate that the ‘applicant's interest’ is not ‘adequately represented by existing parties,’ and 4845-1080-5757,%. 8 1(4) make a ‘timely’ application to intervene.” Chesterbrooke Ltd. P'ship v. Planning Bd, of Tp. of Chester, 237 N.J. Super. 118, 124 (App. Div. 1989)(citing Rule 4:33-1). EMM easily mects this test. First, as the property owner scelting to redevelop the Monmouth Mall, EMM will be uniquely affected if Ordinance 10-2016 ~and its zoning amendments— is struck down. Thus, EMM has a significant, legally-cognizable interest in this litigation, Second, EMM cannot protect its interests if it remains a non-party to this action, an untenable result considering that the outcome could potentially devastate EMM’s multimillion dollar redevelopment plans. Third, no party adequately represents BMM’s interests. Considering the significance of its investment, EMM can accept only one outcome—complete dismissal of plaintiffs’ complaint and complete exhaustion of available remedies, including appeal, That is not true for Eatontown, which may opt to settle or accept an adverse ruling by this Court or an intermediate appellate court. Finally, this application could not be more timely. This application is being made within days of Eatontown's Answer and Affirmative Defenses being filed. No case management conference, briefing schedule, hearing or trial date has been set. Because EMM satisfies all four criteria, its application to intervene must be granted. Meehan v, K.D. Partners, LP., 317 NJ. Super. 563, 568 (App. Div, 1998)(“As the rule is not discretionary, a court ‘must approve an application for intervention as of right if the four criteria are satisfied”), Alternatively, if this Court somehow determines that EMM is not entitled to intervene as of right, then it should allow EMM to permissively intervene. “Upon timely application anyone may be permitted to intervene in an action if his claim or defense and the main action have a question of law and fact in common. . . . [iJn exercising its Aiseretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” Atl. Emplrs Ins. Co. v. Tots & $845-1980-5757,¥. 3 2Toddlers Pre-Sch. Day Care Ctr., 239 N.J. Super. 276, 280 (App. Div, 1990)(citing Rule 4:33-2). EMM should be permitted to intervene under this standard, EMM could institute a declaratory judgment action, NJ.S.A. § 2A:16-53, to adjudicate whether Eatontown properly adopted Ordinance 10-2016. That action would involve overlapping questions concerning whether Eatontown properly complied with all applicable laws, including the Open Public Meetings Act, when adopting the ordinance, Such an action would clearly involve questions of law or fact common to this action, That satisfies Rule 4:33-2's threshold query of whether this action and a subsequent action filed by the proposed- intervenor would involve common questions of law or fact. Concerns regerding undue delay or prejudice also present no obstacle to intervention. As discussed above, EMM’s application to intervene is being made at the carliest stage possible, thereby ameliorating any potential prejudice to the parties. Accordingly, because EMM meets the test for permissive intervention, it should be permitted to intervene under Rule 4:33-2 also. For the foregoing reasons, and as more fully explained below, the Court should grant EMM’s motion to intervene, 4845198045757. ¥. 4 3FACTUAL AND PROCEDURAL BACKGROUND, A The Mall The Monmouth Mall is located at 180 Route 35 in Katontown, New Jersey. Certification of Jennifer Bernell (“Bernell Cert.”), 4 5. The mall first opened on March 1, 1960, with retail space of approximately 500,000 square feet, Id. at § 8, Through the years, the mall has undergone expansions, including the addition of a 15-screen movie theater in 1995-96, and a Barnes & Noble in 2009. d. at 9. The existing mall features approximately 1.5 million square feet of retail space and 150 retail stores. fd at 10. The Monmouth Mall is one of Eatontown’s largest property taxpayers. /d. at 111, Research shows that shopping mallls are experiencing a steady state of decline. Id. at 112, According to Groen Street Advisers, a real estate analytics firm, more than twenty (20) shopping malls have closed in the past few years, including Rolling Acres Mall in Akron, Ohio and the White Flint Mall in Washington D.C. Id. at | 13. New Jersey is not immune from such decline, having experienced failures with Seaview Square Mall in Ocean, New Jersey, Such decline negatively impacts not only the mall’s owners, but also the town and its residents, 1d. at 114. In response, forward-thinking developers, such as EMM, are investing in lifestyle centers where people live and visit to enjoy entertainment, shopping, recreational, and other experiences, Id. at 115, Accordingly, retail centers are being built and repurposed. nationwide to include mixed-use concepts and visitor experiences beyond shopping. Id. at 116, These successful ventures include Pier Village in Long Branch, New Jersey and Atlantic Station in Atlanta, Georgia. EMM envisions a similar transformation for the Monmouth Mall. 14. at 17. EMM. plans to transform the Monmouth Mall into a dynamic mixed-use town center, offering 4845-1980-5767,¥. 2 4retail shopping, office complexes, restaurants, and housing. Id. at 11] 18-19. While the project remains in the development phase, proposed concepts include up to 700 residential units, an outdoor performance venue, green spaces, a medical arts facility, and a bowling alley. Jd. at 419. All told, EMM is ready to make an investment of over $300 million in the Monmouth Mall and ensure its vitality for current and future Eatontown. residents and visitors. Id, at 420. B Ordinance 10-2016, The First Step Towz Redevel EMM's plans to redevelop the Monmouth Mall required an amendment to the zoning laws in order to allow residential development in the B-6 Business Zone, where Monmouth Mall is located. Id. at 9 21. Recognizing that the status quo would lead the Monmouth Mall--and Eatontown’s tax coffers—into a state of steady decline, on September 14, 2016, Eatontown adopted Ordinance 10-2016. See Id. at {{] 21-22. The ordinance permitted “repurposing of the Monmouth Mall property[] to a multi-purpose mixed use development incorporating commercial, residential and recreational uses.” Borough of Eatontown, NJ, Ordinance 10-2016, Preamble (September 14, 2016).1 The ordinance permits the expansion of the Monmouth Mall to include, inter alia, recreational and entertainment amenities, such as an aquarium, a children's museum and, bowling alleys; medical offices; daycare; and up to 700 residential units, Id, at *2. C. Plaintiffs’ Complaint. On October 27, 2016, plaintiffs Evelyn Guerra, Sara Breslow, Judith Bretzger and Barbara Deneger filed the instant suit challenging Eatontown’s adoption of the ordinance. ‘The plaintiffs are Eatontown property owners, comp., 911-4, and assert three challenges +A copy of the ordinance is attached as Exhibit A to the Certification of Patrick J. McNamara, Bsq, 4845-:980-8757.%. 1to Eatontown’s adoption of Ordinance 10-2016. First, plaintiffs claim, in conclusory fashion, that the ordinance “adversely impacts” their property and, thus, Eatontown’s adoption of it was arbitrary and capricious. Id. at 11] 10-11. No allegations are offered to demonstrate the nexus between the ordinance and the alleged adverse impact. Plaintiffs also allege Eatontown violated the Open Public Meetings Act (OPMA), NuIS.A. § 10:4-6, et seg. Specifically, plaintiffs allege that, during the September 14th meeting to consider adoption of Ordinance 10-2016, 70 Eatontown residents were redirected to a “fire house garage” in the building next door as a result of limited seating at Borough Hall. fd, at Count I, ¥ 2(a)-(b). While a live-stream video was provided, and all individuals were afforded the opportunity to enter Borough Hall and make comments during the public comment period, plaintiffs remain dissatisfied. They alloge the firehouse was too hot, noisy, and that the live-stream feed cut out for an unspecified (10 minutes? 5 minutes? 30 seconds?) period of time. Id, at Count 11, 12(b)-(d). They also complain that Borough officials limited the 200-plus-person crowd to three minutes per person during the public comment period—nota bene: this reserved up to 10 total hours, of speaking time for the meeting attendees~and implemented a sign-in sheet. Id, at Count II, 4 2(f). Finally, plaintiffs complain that Mayor Connelly and the Borough Council violated. procedure when adopting Ordinance 10-2016, They claim “there was a motion to close the public hearing, a roll call vote on the Ordinanee itself without any formal motion or second to approve said Ordinance." Id, at Count I1f, 112. Plaintiffs seck a declaration that Ordinance 10-2016 is null and void, an order requiring Mayor Connelly and the Borough Council to repeal the ordinance, and attorney fees. EMM now seeks to intervene. 4845-1980-5757,¥. 1 6ARGUMENT POINT. EMM IS ENTITLED TO INTERVEN! MATTER OF RIGHT. BAS A Rule 4:33-1 governs intervention as of right. To intervene, a party must meet four criteria: “(2) claim ‘an interest relating to the property or transaction which is the subject of the action,’ (2) show he is ‘so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest,’ (3) demonstrate that the ‘applicant's interest’ is not ‘adequately represented by existing parties; and (4) make a ‘timely’ application to intervene.” Chesterbrooke, supra, 237 N.J. Super. at 124 (citing Rule 4:33-2). “The substance of the rule permitting intervention as of right is also ordinarily construed quite liberally.” Am. Civil Liberties Union of N.J., Ine. v. Cly. of Hudson, 352 N.J. Super. 44, 67 (App. Div. 2002). “As the rule is not discretionary, a court must approve an application for intervention as of right if the four criteria are satisfied.” Mechan, supra, 317 N.J. Super. at 568. Here, Monmouth Mall meets all four criteria, A. EMM Has A Legally-Cognizable Interest, As It Owns The Monmouth Mall, ‘The Very Property Subject ‘To Ordinance 10-2016 New Jersey courts “take a practical approach in determining whether a moving, party has a cognizable interest in litigation that it is entitled to protect by intervention.” Allstate N.J. Ins. Co. v. Neurology Pain Assoes., 418 N.J. Super. 246, 254-55 (App. Div. 2011). This approach entails “disposing of lawsuits by involving as many apparently concerned persons as is compatible with efficiency and due process.” Id. (citing Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967). Here, EMM easily vaults the first prong. Ordinance 19-2016 concerns the “repurposing of the Monmouth Mall property{] to a multi-purpose mixed use aBagrs8e-5757,¥. 1 7development incorporating commercial, residential and recreational uses,” Borough of, Eatontown, NJ, Ordinance 10-2016, Preamble (September 14, 2016). The ordinance permits the expansion of the Monmouth Mall to include, inter alia, recreational and entertainment amenities, such as an aquarium, a cbildren’s museum and bowling alleys; medical offices; daycare; and up to 700 residential units. Jd. at “2, EMM owns the Monmouth Mall and seeks to invest over $300 million to redevelop and revitalize it for current and future generations, Bernell Cert., 195, 20. But these plans cannot proceed if Ordinance 10-2016 is struck down by this Court. Thus, EMM has a substantial interest in this litigation. See Chesterbrooke, supra, 237 Nu. Super. at 124 (finding the proposed intervenor had a sufficient interest, even though he did not own the property at issue, but merely owned a neighboring property). B, An Adverse Ruling Against Eatontown Will Adversely Impact EMM, Including Its Planned Redevelopment Of The Monmouth 1 ‘This action secks nothing less than to declare null and void Eatontown’s adoption of Ordinance 10-2016. Comp., Counts I-II1, Prayers for Relief, That, in tura, will undo the zoning amendments to the Monmouth Mall, thereby stripping EMM of a prerequisite to redeveloping the property. Bernell Cert., WW 20-23. Accordingly, the disposition of this, matter will significantly impact EMM-—the Court will either uphold Eatontown’s adoption. of Ordinance 10-2016 and allow EMM to take the next step towards revitalizing the Monmouth Mall, or strike down Eatontown's legislative action and jeopardize the entire effort, Accordingly, EMM meets the second prong. 845-1980-5767, 2 8C. EMM's Interests Are Not Adequately Represented, EMM's interests—to redevelop and revitalize the Monmouth Mall—are not adequately represented by any of the parties to this litigation, 1d. at 127. This is true for two reasons, First, Count I of the Complaint alleges Eatontown’s adoption of Ordinance 10- 2016—or, more precisely, its decision to rezone the Monmouth Mall for a mixed-use regional center—“adversely impacts” plaintiffs’ property rights. Comp., 1 7-12. As a result, plaintiffs contend, Eatontown's decision to adopt the ordinance was arbitrary and capricious. Comp., $f 7-12. If the Court entertains such a challenge, no defendant to this litigation is better suited to rebut plaintiffs’ claim than EMM, As the property owner, EMM has an intimate and unparalleled knowledge of the redevelopment plans for the Monmouth Mall, Bernell Cert, § 28. EMM has conducted extensive studies of the redevelopment project's impact, including an economic impact study and a traffic study. Bernell Cert., § 29. These studies will invariably demonstrate that renovating the Monmouth Mall will have a substantial net positive impact on Eatontown and its residents. Id. at { 30. While Batontown, Mayor Connelly, and the Borough Council have an in-depth knowledge of the redevelopment plans, only EMM has access to the requisite experts and reports to persuasively and forcefully rebut any suggestion that redeveloping the Monmouth Mall will adversely impact Eatontown or its resident Id. at 1131. This ‘reason alone is sufficient to meet the third prong for intervention as of right. See Arn. Civil Liberties Union of N.J., Inc., supra, 352.N.J. Super. at 69 (affirming the trial court's grant of intervenor status to the United States, where only the United States had full access to the relevant information and the information within the counties’ possession came primarily from the United States). 4845-2980-5757.0. 1 9Hanover v. Morristown, 11 Second, while Eatontown may find several resolutions of this matter acceptable—ie,, settlement including repeal of the ordinance, an adverse judgment ‘without an appeal—only one result suffices for EMM: dismissal of the complaint, Bernell Cort., 1 32. By far, the largest stakeholder in this litigation is EMM, an entity that is ready, willing and able to heavily invest to redevelop and revitalize the Monmouth Mall, 1d. at 11 20, 33. Anything less than full vindication of Eatontown’s adoption of the ordinance places EMM at risk of losing the substantial investment in time, money and labor it has already made towards redevelopment of the Monmouth Mall, and jeopardizes its future redevelopment plans. Id. at { 34. No party to this litigation faces such high stakes. Jd. at 4135. Accordingly, no other party to this litigation has the requisite desire to litigate this, matter through its conclusion, whether before this Court or an appellate court. Id. at 137. For these reasons, EMM's interests are not adequately represented. ‘The third prong is satisfied. D. EMM's Application To Intervene Is Timely. “Whether an application to intervene is timely does not depend solely upon the amount of time that may have elapsed since the institution of action by the moving party [o]ther factors which must be considered in connection with timeliness are whether the granting of the motion would entail appreciable prejudice to the other parties or the court, and at what stage in the total proceedings the motion to intervene is made.” NJ. Super. 404, 409 (Law Div. 1968)). Here, there can be no legitimate question concerning the timeliness of EMM's application to intervene. This matter was only filed on October 27, 2016. Eatontown filed a responsive pleading less than one week ago, No discovery has been exchanged. No case 845 2980-5757,¥. 10 ‘J, Super, 136, 141 (Ch. 1972)(citing Clarke », Brown, 101management conference has been scheduled, and no briefing schedule issued. EMM's application could hardly have been made sooner. Accordingly, the fourth and final prong, is also satisfied, Because EMM has satisfied all four prongs under Rule 4:33-1, its application to intervene must be granted. Meehan, supra, 317 N.J. Super. at 568 (“a court must approve an application for intervention as of right if the four criteria are satisfied”). POINT H ALTERNATIVELY, EMM SHOULD BE PERMITTED TO INTERVENE AT THE TRIAL COURT'S DISCRETION. “Where intervention of right is not allowed, one may obtain permissive intervention under [Rule 4:33-2]. Atl. Emplrs Ins. Co., 239 N.J. Super. at 280. “Upon. timely application anyone may be permitted to intervene in an action if his claim or defense and the main action have a question of law and fact in common. ... [iJn exer ing, its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” Id. “Our Court Rule on permissive intervention . .. is to be liberally construed by trial courts . .. with a view to whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties[.J" Zinger v. Gen. Accident Ins. Co., 144 NoJ..327, 341 (1996)(internal citations omitted); accord N.J. Div. of Youth & Family Servs. v, D.P., 422 N.J, Super. 583, 590-91 (App. Div. 2011)(“Permissive intervention pursuant to Rule 4:33-2, requires a trial court to liberally determine ‘whether intervention will unduly delay or prejudice the adjudication of the rights of the original parties.” (citing Zirger, supra, 144 N.J. at 341)). Here, EMM meets this standard. As owner of the Monmouth Mall which is directly affected by Ordinance 10-2016, EMM would have standing to initiate a declaratory 48451980-5757,¥. 4 ujudgment action, N.J.S.A. § 2A:16-53, declaring that Eatontown properly adopted Ordinance 10-2016, including compliance with OPMA and all parliamentarian requirements concerning the vote to adopt, That action, of course, would have several questions of law and fact in common with the present action, See Comp,, Counts II and TIL Thus, Rule 4:33-2's requirement of commonality between this action and a subsequent action is satisfied. Permitting EMM to intervene will not unduly delay or prejudice any party. EMM is applying to intervene at the earliest stage possible~indeed, within days after Eatontown filed a responsive pleading. This action is in its infancy, no briefing schedule has been issued and no hearing or trial dates have been set. Under those circumstances, there is also no prejudice to the plaintiffs, as they will not be asked to redo any task as a result of EMM’s intervention. For these reasons, and with a view towards Rule 4:33-2'8 liberal approach towards permissive intervention, Zirger, supra, 144 N.J. at 341, the Court should allow EMM to intervene. CONCLUSION For the foregoing reasons, the Court should grant EMI's motion to intervene. SCARINCI & HOLLENBECK, LLC ‘ATTORNEYS AT LAW Attorneys for Proposedl-Intervenor Katontown C Dated: December 13, 2016 By: : , Esq. .MfeNamare, Esq, Roshan D. Shab, Esq, $845-1980-5757,9. 1 12ROBERT E, LEVY, ESQ. PATRICK J. MCNAMARA, ESQ, ROSHAN D. SHAH, ESQ. SCARINCI & HOLLENBECK, LLC ATTORNEYS AT LAW 1100 Valley Brook Avenue P.O. Box 790 Lyndhurst, NJ 07071-0790 ‘Telephone: (201) 896-4100 Facsimile: (201) 896-8660 Attorneys for Proposed-Intervenor Eatontown Monmouth Mall, LLC EVELYN A. GUERRA, et al., SUPERIOR COURT OF NEW JERSEY. LAW DIVISION ~ MONMOUTH COUNTY Plaintiffs, DOCKET NO, MON-1-3767-16 BOROUGH OF EATONTOWN, et al., CERTIFICATION OF JENNIFER BERNELL Defendants. Jennifer Bernell, of full age, hereby certifies: 1) Tameurrently employed as the Director of Development for the Kushner Companies, located at 666 Fifth Avenue, New York, NY 10103. 2) The Kushner Companies is a diversified real ostate organization headquartered in New York City. 3) Our company is responsible for the ownership, management, development and redevelopment of several properties across the United States. 4) The Kushner Companies's national portfolio consists of more than 20,000 multifamily apartments, as well as 13 million square feet of office, industrial and retail space throughout New York, New Jersey, Pennsylvania, Maryland, Ohio and Minois, sntoraason,y 1 15) Eatontown Monmouth Mall, LLC (EMM) is a wholly-owned subsidiary of| the Kushner Companies. EMM is the current owner of the Monmouth Mall, located at 180 Route 35 in Eatontown, New Jersey. 6) Lam the Project Director for EMM's plan to redevelop and repurpose the Monmouth Mall. Accordingly, I am fully familiar with the facts stated herein, 7) 1 submit this certification in support of EMM’s motion to intervene pursuant to Rules 4:39-1 and 4:33-2. A Brief History Of The Monmouth Mal 8) The Monmouth Mall first opened on March 1, 1960, with retail space of, approximately 500,000 square feet. 9) Through the years, the mall has undergone expansions, including the addition of a 15-screen movie theater in 1995-96, and a Barnes & Noble in 2009. 10) The existing mall features approximately 1.5 million square feet of retail space and 150 retail stores, 11) The Monmouth Mall is one of Eatontown’s largest property taxpayers. B. The Challenges Facing The Monmouth Mall And The Need To Adapt 12) Research shows that shopping malls are experiencing a steady state of According to Green Street Advisers, a real estate analytics firm, more than twenty (20) shopping malls have closed in the past few years, including Rolling Acres Mall in Alcon, Ohio and the White Flint Mall in Washington D.C. 14) Such decline negatively impacts not only the mall's owners, but also the town and its residents. sp10e4849581,9. 1 235) _ Jn sesponse, forward-thinking developers, such as EMM, are investing in lifestyle centers where people live and visit to enjoy entertainment, shopping, recreation, and other experiences. 16) Accordingly, retail centers are being built and repurposed nationwide to include mixed-use concepts and visitor experiences beyond shopping. 37) EMM envisions a similar transformation for the Monmouth Mall. EMM’s Vision ‘To ‘Transform ‘The Monmouth Mall Into A Premier Mixed-Use Town Center. 18) EMM plans to transform the Monmouth Mall into a dynamic mixed-use town center, offering retail shopping, office complexes, restaurants, and housing. 19) While the project remains in the development phase, proposed concepts include up to 700 residential units, an outdoor performance venue, green spaces, a medical office, and a bowling alley. 20) EMM is prepared to make an investment of over $300 million in the ‘Monmouth Mall, and to ensure its vitality for current and future Eatontown residents and visitors. 21) _ EMW’s plans to redevelop the Monmouth Mall required an amendment to the zoning laws in order to allow residential development in the B-6 Business Zone, where Monmouth Mall is located, 22) _ On September 14, 2016, Eatontown adopted Ordinance 10-2016 to resolve the zoning impediments to EMM's redevelopment plans. The ordinance permits the expansion of the Monmouth Mall to include, infer alia, recreational and entertainment amenities, such as an aquarium, a children's museum and bowling alleys; medical offices; daycare; and up to 700 residential units, amocHsMy 1 323) The ordinance is the first step towards developing the Monmouth Mall, additional steps in the process remain, including the approval of site plans by both the Eatontown and Monmouth County planning boards, as well as other permits and approvals. 24) On October 27, 2016, plaintiffs filed the instant challenge to have Ordinance 10-2016 declared null and void. 25) EMM now respectfully moves to intervene. D. EMM Desires To Intervene To Protect Its Interest And Ensure 0 t Can Continue. 26) If Ordinance 10-2016 is nullified, EMM’s redevelopment plans will be indefinitely delayed, an untenable result considering the challenges facing the ongoing viability of the Monmouth Mall. 27) Noother party to this litigation can adequately represent EMM’s interests 28) EMM has an intimate and unparalleled knowledge of the redevelopment plans for the Monmouth Mall. 29) EMM has conducted extensive studies of the redevelopment project’s impact, including an economic impact study and a traffic study. 30) These studies will invariably demonstrate that renovating the Monmouth Mall will have a substantial net positive impact on Eatontown and its residents. 31) __ Thus, EMM has access to the relevant experts and reports that can readily rebut any suggestion that Eatontown’s adoption of Ordinance 10-2016 was arbitrary and capricious. 32) Moreover, for EMM, the only suecessful resolution of this matter involves dismissal of the Complaint. ssi0-yae938 | 433) _ EMMis the largest stakeholder in this litigation, 34) Anything less than full vindication of Eatontown’s adoption of the ordinance places EMM at risk of losing the substantial investment in time, money and labor it has already made towards redevelopment of the Monmouth Mall, and jeopardizes its future redevelopment plans. 35) No party to this litigation faces such high stakes and, thus, no other party has the incentive to exhaust all judicial remedies, including any potential appeal, in pursuit of upholding Katontown’s adoption of Ordinanes 10-2016. 36) tis for this reason that EMM moved to intervene at the earliest possible stage and ensure that it can participate in developing a factual record. 37) Accordingly, EMM respectfully requests that the Court allow it to intervene in this matter, Thereby certify that the foregoing statements are true, I am aware that if any of the foregoing statements are willfully false, I am subject to punishment. Dated: December 9, 2016 Jennifer Bernell Director of Development Kushner Companies 666 Fifth Avenue ‘New York, NY 10103 smlorte4saniyy, L 5