NN ae eg Spina ua GLUCKWALRATH LLP ONO eves 428 River View Plaza, Trenton, New Jersey 08611 2 SAUTE SA Tez (609) 278-1900 Fac, (609) 278.9200 vwengliievon Reply To: Trenton Office Fed Bank Ofc dren Bae 1 Wnt ree, Sate 4 Dee Ba HITENNS fed Bank, 0701 Hyeehkoncon Sek (13) 53-807 Fn (10) sesrID January 24,2017 VIA FEDERAL EXPRESS Hon, Lisa P. Thomton, A1.8.C. ‘Monmouth County Superior Court 71 Monument Park PO Box 1266, 31d Floor Freehold, NJ 07728 ae th WON aN Re: Evelyn A, Guerra, ot als v. Borough of Eatontown, ot Docket No: MON-L-3767-16 Dear Judge Thorton: I represent the Defendants, the Borough of Eatontown and the Mayor and Borough Council of the Borough of Eatontown (collectively, “Eatontown”), in the above-referenced action in lieu of prerogative writs. This case is scheduled for a pretrial conference before Your Honor on Wednesday, February 1, 2017 at 9:30 am. Pursuant to the Coust’s direction, 1 am submitting this letter no later than seven (7) days in advance of the pretrial conference in order to provide the Court and counsel for the other parties with e statement of facts, legal issues and an exhibit list relating to this action, and also to identify all proposed witnesses (to the extent that the parties anticipate that evidence will be presented beyond the record below). 1, Statement of Facts ‘This action in lieu of prevogetive writs challenges the Borough Council's adoption of Ordinance 10-2016 (the “Ordinance”), which amended Section 89-31 of the Borough Code in ———ondler-to-texzone certain lots which are the current site of the Monmouth Mall to_be-a new: Mi Use Regional Center Zone, Prior to the re-zoning, the Monmouth Mall lots (which essentially comprise their own zone) were zoned for commercial use, These lots collectively represent the largest taxpayer in the Borough. Research shows that physical shopping malls are experiencing a steady rate.of decline and that malls which do not change with the times are in danger of closing. The re-zoning of the Monmouth Mall lots means that these lots may be redeveloped, with @ mixed use town center offering retail shopping, restaurants, and up to 700 residential, housing units (12.5% of which must be set aside as affordable housing). This is consistent with and in furtherance of modern planning principles which discourage retail-only shopping malls and which encourage the development of mixed-use town centers where people may live, shop, and seek entertzinment and food all at one location. This te-zoning also assists Eatontown in ooans988.1 -000011),Me ciuecWatnara ue Letter to Hon. Lisa P. Thornton, A..S.C. January 24, 2017 Page 2 meeting its constitutional obligation to provide for its fair share of the regional need for affordable housing as there is a mandatory affordable housing set aside on any residential units developed within this new zone. Significantly, the Borough Couneil’s adoption of the Ordinance on September 14, 2016 was the culmination of a lengthy public process. Indeed, there was a previous ordinance introduced in eatly 2016 to re-zone these lots (Ordinance 3-2016). ‘There was substantial public discussion regarding Ordinance 3-2016. In the course of the consideration of Ordinance 3-2016, Eatontown Monmouth Mall, LLC (“EMM”) submitted a traffic study showing the traffic impact of the re-zoning, an economic impact study showing the economic impact of the re-zoning, and a study of the impact of this re-zoning upon the school system. The Borough professionals also issued reports regarding the re-zoning and/or provided written responses to questions submitted by the Mayor, Council members, and members of the public. All of these studies, reports and responses to questions were posted on the Borough's website and were part of the public record on Ordinance 3-2016. On April 28, 2016, the Borough Council held a public hearing on Ordinance 3-2016 where a large number of citizens attended and provided public comments regarding the ordinance, After closing the public hearing, the Borough Council voted against the adoption of Ordinance 3-2016. The transcript of that meeting shows that the Mayor and many of the Council members expressed support for re-zoning these lots, but indicated that they felt that the re-zoning ‘was 00 expansive and should be scaled back. ‘The Ordinance at issue in this litigation is the scaled back version of this zoning, For example, as compated to Ordinance 3-2016, the Ordinance reduced the number of allowable residential units in this new zone from 800 to 700 units, eliminated the rooftop driving range and hotel, and made other changes, such as expansion of the buffer requirements and lowering the ‘maximum heights for buildings in the zone, in order to lessen the impact of the re-zoning upon adjoining residential neighbors. ‘The Ordinance wes introduced by the Borough Council on August 10, 2016. It was then red_to the Eatontown Planning Board for a cor ured by the Munici Land Use Law, On August 26, 2016, the Eatontown Planning Board issued a report determining that the Ordinance was not inconsistent with the Eatontown Master Plan and retuming the Ordinance to the Borough Council for further action. Thereafter, on September 14, 2016, the Borough Council held the public hearing on the Ordinance and, after closing the heering, voted to adopt the Ordinance. 2. Legal Issues The Plaintiffs raise three claims for relief against Eatontown within their Complaint. ‘These claims are addressed sequentially below. o0u08588;71714.001/01),GiuckWatraTH Le Letter to Hon. Lisa P. Thomton, A.J.8.C. January 24, 2017 Page 3 Jn Count One, the Plaintiffs allege that the Borough Council’s adoption of the Ordinance was arbitrary, capricious, unressonable, unlawful and in violation of the Municipal Land Use Law. Although the Complaint does not specify any factual or legel basis for this contention, the Plaintiffs have identified three arguments within their pretrial memorandum in support of this claim. They are: (i) that the Ordinance constitutes illegal spot zoning and/or illegal contract zoning; (ii) that the Ordinance is inconsistent with the Eatontown Master Plan’; and (iii) that the Ordinance does not advance one or more of the purposes of zoning as set forth within the Momicipal Land Use Law. The relief sought under this Count of the Complaint is the entry of an Order invalidating the Ordinance and awarding counsel fees and costs of suit. In Count Two, the Plaintiffs allege that Eatontown violated the Open Public Meetings Law with regard to the meeting at which this Ordinance was adopted. Specifically, the Plaintiffs allege, among other things, that the imposition of a three minute time limit on cach person wishing to provide public comments on the Ordinance, the decision not to move the meeting to a larger venue, the use of an overflow room fo accommodate persons who could not fit into the Council meeting chamber but who wished to view the meeting through live streaming, and the process followed by Eatontown in live streaming the méeting end in controlling the overflow room and access to the Council meeting chamber violated the Open Public Meetings Act. The relief sought under this Count iss the entry of an Order invalidating the Ordinance, imposing monetary penalties upon Eatontown under the Open Public Meetings Act, and awarding counsel fees and costs of suit, In Count Three, the Plaintiffs allege that the Borough Couneil’s adoption of the Ordinance was procedurally deficient because, according to the Plaintiffs, there was no formal motion and second to adopt the ordinance prior to the roll call vote on the adoption. The relief sought through this Count is the entry of an Order invalidating the Ordinance and awarding counsel fees and costs of suit for this alleged violation. ‘Thus, the legal issues presented in is action are as follows: (1) Was the Borough Council’s adoption of Ordinance 10-2016 arbitrary, capricious, unreasonable, unlawful and/or in violation of the Municipal Land Use Law? 2) Did Batontown violate the Open Public Mectings Act in its conduct of the September 14, 2016 Borough Couneil meeting? (3) Was the Borough Council's adoption of Ordinance 10-2016 procedurally deficient? ' Notably, the Plaintf have not sued the Eatontown Planning Board to challenge its determination that the Ordinance is consistent with the Batontovn Master Plan, ¥ Although the Plaintiffs state in their pretrial memorandum that these actions deprived the Plaintifis of their rights under the United States and New Jersey Constitutions, the Plaintiffs have not asserted any constitutional claims within their Complaint and are not seeking compensatory monetary demages in this action, (0005845;re 142017013)GiuckWatraTH uP Letter to Hon. Lisa P. Thornton, A.J.S.C. January 24, 2017 Page 4 Eatontown believes that issue #1 (whether the Ordinance is arbitrary and capricious) and issue #3 (the alleged procedural deficiency in the adoption of the Ordinance) can be adjudicated based upon a review of the record below and legal argument, ‘That being said, however, the Plaintiffs have indicated within their pretrial memorandum that they intend to present expert testimony regarding the “arbitrary and capricious” claims, Since the Plaintiffs never presented experts below, they should not be permitted to do so herein, However, to the extent that they are permitted to do so, Eatontown should be allowed to obtain experts to rebut the Plaintiffs’ claims. Issue #2 (the Open Public Meetings Act violation) is based upon factual allegations raised by the Plaintiffs within their Complaint which, in large part, are contested by Eatontown. For example, Eatontown denies (among other things) that the live streaming system to the overflow room did not work properly for lengthy periods of time, that there were fumes in the overflow room causing difficulty breathing and forcing people to leave, that there were no Borough representatives at the overflow room to maintain decorum and assist those in the room, and that people were not allowed to enter the Council meeting chamber to fill in empty seats when others left. The Plaintiffs should be required to identify the witnesses that they will rely upon to prove these claims and the parties should be provided with a period to conduct discovery to explore these factual allegations. Moreover, Eatontown anticipates that there will need to be a hearing with witness testimony to establish these factual allegations 3. Exhibit List ‘As set forth in the Statement of Facts above, the Borough Couneil’s adoption of the Ordinance was the culmination of a lengthy public process. As this entire process is relevant to the determination of whether the Borough Couneil’s adoption of the Ordinance as arbitrary or capricious, the relevant documents generated during that process are all exhibits that may be utilized by Eatontown at the hearing in this action, They include the following: Documents in Record of Ordinance 3-2016 1. Councilman Gonzalez Q&A dated April 13, 2016. 2. Councilman Regan Q&A dated April 13, 2016. 3. Councilman Robinson Q&A dated April 13, 2016. Councilman Talerico Q&A dated April 13, 2016. 5, Councilwoman Bast Q&A dated April 13, 2016. 6 Mayor Connelly Q&A dated April 13, 2016. ov009%85;4/ 4001/01),GLuckWaLRATH LLP Letter to Hon. Lisa P, Thornton, AJ.S.C, January 24,2017 Page 5 7 10, u, 12, 13, 14. 15, 16. 17. 18. Memorandum from Borough Planner John Maczuga to Borough Administrator providing QWA dated April 12, 2016 ‘Memorandum fiom Tax Assessor John Gillooly to Borough Administrator providing Q&A dated April 7, 2016, Letter from Borough Attomey Andrew Bayer to Borough Administrator providing Q&A. dated April 20, 2016. Memorandum from Borough Planner John Macznga to Borough Administrator providing additional Q&A dated April 21, 2016. Letter report from Borough Engineer Bd Broberg to Borough Administrator dated April 22, 2016 regarding preliminary traffic stady dated April 18, 2016 from Dolan & Dean. ‘Trafic Synopsis from Dolan & Dean dated March 30, 2016, Preliminary Traffic Study for Re-Zoning Request for Monmouth Mall Redevelopment from Dolan & Dean dated April 18, 2016. Economic Impact Study from Beneke Economics dated March 30, 2016, Letter report from Bencke Economics regarding estimated number of school children to be generated by the project. Memorandum from RTKL Conneotiont Architecture & Engineering, P.C, to Jenny Bemell dated March 24, 2016 regarding residential area allocation within the Monmouth ‘Town Center Mixed use development proposal. Minutes/transcripts of Borough Council meetings regarding Ordinance 1-2016. Ordinance 3-2016 Documents in Record of Ordinance 10-2016 19, 20, 24 Minutes/transcripts of Borough Counei meetings regarding Ordinance 10-2016. Ordinance 10-2016. Memo from consulting planner Martin Truscott to Eatontown Planning Board dated August 22, 2016 regarding Master Pian consistency of Ordinance 10-2016. (009491 14-001011},Be GivexWatnare ie Letter to Hon, Lisa P. Thorton, AJ.8.C. January 24, 2017 Page 6 22, Report from Eatontown Planning Board determining that Ordinance 10-2016 is not inconsistent with the Master Plan. Batontovm reserves the right to identify additional exhibits as this case proceeds and the need for such exhibits is determined, Witness List With regard to the “arbitrary and capricious” claims raised within Count One of the Plaintiffs’ Complaint, Eatontown asserts that these claims should be based upon the record delow, but if the Plaintiffs are permitted 10 obtain experts on these claims, Eatontown reserves the right to obtain experts to provide testimony as needed to rebut these experts. With regard to the “Open Public Meetings Act” claims raised within Count Two of the Plaintiffs’ Complaint, Eatontown anticipates that it may call the following witnesses: 1 The person or persons who operated the facebook live streaming for the meeting and who has knowledge about this broadeast; 2. The Borough representatives stationed in the overflow room who have knowledge of what ocourred in the overflow room during the Borough Council meeting. 3. The Borough representatives who enforced the fire code requirements at the door of the Borough Council meeting room and who regulated access in and out of the room. 4, Any other Borough witnesses identified during discovery to rebut any claims raised by the Plaintifis regarding these alleged Open Public Meetings Act violations, Eatontown reserves the right to identify additional witnesses as this case proceeds and the need for such witnesses is determined. Respectfully submitted, GluckWalrath LLP By: Andrew Bayer ABilpe {0009585 14.001011)