                        NOT FOR PUBLICATION WITHOUT THE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-3295-16T3


GEORGE A. GALLENTHIN, III,

        Plaintiff-Appellant,

v.

BOROUGH OF PAULSBORO, PAULSBORO
PLANNING/LAND    USE   BOARD,   and
PAULSBORO'S COUNCIL AS FOLLOWS:
GARY C. STEVENSON, PAULSBORO MAYOR;
JOHN   A.    GIOVANNITTI,   COUNCIL
PRESIDENT; and COUNCILPERSONS: ERIC
DITONNO, ALFONSO G. GIAMPOLA, LARRY
HAYNES, SR., THEODORE D. HOLLOWAY,
II, and JOE KIDD, individually,
jointly, severally and in the
alternative,

     Defendants-Respondents.
______________________________________

              Argued May 30, 2018 - Decided June 26, 2018

              Before Judges Gilson and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Gloucester County, Docket No.
              L-1407-16.

              George A. Gallenthin, III, appellant, argued
              the cause pro se.
          M. James Maley, Jr. argued the cause for
          respondents Borough of Paulsboro, Gary C.
          Stevenson, John A. Giovannitti, Eric Ditonno,
          Alfonso G. Giampolo, Larry Haynes, Sr.,
          Theodore D. Holloway, II, and Joe Kidd (Law
          Offices of Maley & Associates, PC, attorneys;
          M. James Maley, Jr., on the brief).

          Law Offices of John A. Alice, attorneys for
          respondent Paulsboro Planning/Land Use Board,
          join in the brief of respondents Borough of
          Paulsboro,   Gary   C.   Stevenson,  John  A.
          Giovannitti,   Eric    Ditonno,   Alfonso  G.
          Giampola, Larry Haynes, Sr., Theodore D.
          Holloway, II, and Joe Kidd.

PER CURIAM

     Plaintiff George A. Gallenthin, III, appeals from orders

dated March 10, 2017 and March 17, 2017, dismissing his complaint

in lieu of prerogative writs.        We affirm.

     Plaintiff    brought     suit   against      defendants    Borough    of

Paulsboro (Borough), Paulsboro Council (Council), the Mayor of

Paulsboro,1 and the Paulsboro Planning/Land Use Board (Board),

seeking   to:    (1)   void   Borough    Ordinance     11.16;    (2) enjoin

defendants from "deriving any and all financial benefit as a result

of [d]efendants designating [p]laintiff's property as an area in

need of rehabilitation"; and (3) award damages in the amount of

$10,000 per month since the passage of Ordinance 11.16.




1
  We refer to the Borough, the Council, and the Mayor collectively
as the Governing Body.

                                     2                              A-3295-16T3
     The genesis of this appeal is the designation of the entire

Borough as an area in need of rehabilitation.           To implement that

designation, the Governing Body passed Ordinance 11.16, which

adopted a "Redevelopment Plan for the Borough of Paulsboro" (Plan).

Plaintiff, who owns several parcels of land in the Borough, claimed

Ordinance 11.16 and the Plan amount to an unconstitutional taking

of his property.

     In support of his current litigation against defendants,

plaintiff relied on Gallenthin Realty Development, Inc. v. Borough

of Paulsboro, 191 N.J. 344 (2007) (Gallenthin I).           In that case,

plaintiff appealed a municipal ordinance designating his property

as an area in need of redevelopment.          The Court in Gallenthin I

held that the Borough's ordinance, allowing redevelopment of land

in a stagnant condition, did not authorize the redevelopment of

plaintiff's property simply because it was not fully productive.

Gallenthin, 191 N.J. at 372.    The Gallenthin I decision addressed

areas in need of redevelopment, N.J.S.A. 40A:12A-5, not areas in

need of rehabilitation, N.J.S.A. 40A:12A-14.

     The   background   describing       plaintiff's   earlier   litigation

against defendants is set forth in Gallenthin I.           We recite only

the facts relevant to plaintiff's argument on this appeal.

     On August 1, 2016, the Board recommended the Governing Body

adopt Resolution 157.16, designating the entire Borough as "an

                                     3                              A-3295-16T3
area   in   need    of    rehabilitation"    in   accordance   with   N.J.S.A.

40A:12A-14.        On September 6, 2016, the Governing Body voted to

designate the entire Borough as an area in need of rehabilitation,

finding "more than half of the housing stock in the [Borough] is

at least [fifty] years old and a program of rehabilitation as

defined in N.J.S.A. 40A:12A-3 is expected to prevent further

deterioration and promote overall development and improvement of

the community."2

       On September 6, 2016, a draft of the Plan was prepared.                 On

September 20, 2016, the Governing Body authorized the Board to

review the Plan.          On October 3, 2016, the Board recommended the

Governing Body adopt the Plan.

       The Governing Body held a public meeting on October 4, 2016

to address the Plan.          At this meeting, plaintiff requested his

property be exempt from the rehabilitation designation.               On that

same   date,   the       Governing   Body   passed   Ordinance 11.16,     which

adopted the Plan.


2
   Resolution 157.16, designating the Borough as an area in need
of rehabilitation, is not the subject of plaintiff's appeal.
Plaintiff appeals the approval of Ordinance 11.16, which adopted
the Plan. Thus, plaintiff's arguments related to Resolution 157.16
are waived. See Pressler & Verniero, Current N.J. Court Rules,
cmt. 6.1 on R. 2:5-1(a) (2018) ("[I]t is clear that it is only the
judgments or orders or parts thereof designated in the notice of
appeal which are subject to the appeal process and review.").



                                        4                               A-3295-16T3
     On November 14, 2016, plaintiff filed a verified complaint,

action in lieu of prerogative writs, and an order to show cause

(OTSC), challenging the adoption of Ordinance 11.16.3       Plaintiff

alleged the Governing Body's approval of Ordinance 11.16 was

arbitrary, capricious, or unreasonable because the Plan is a "net

opinion of the Borough's engineer," and the Governing Body's

decision was not supported by substantial credible evidence.

     On or about February 8, 2017, the Governing Body filed a

motion to dismiss plaintiff's complaint for failure to state a

claim.   The Board joined in the Governing Body's motion.    On March

3, 2017, the trial judge heard oral argument on both plaintiff's

OTSC, seeking to preclude the Borough from designating his property

an area in need of rehabilitation, and defendants' motions to

dismiss.   In opposing defendants' motions, plaintiff claimed the

Plan redesignated his property as an area in need of redevelopment

contrary to the Court's decision in Gallenthin I.

     After considering the parties' arguments and reviewing the

written submissions, the trial judge issued an order and written

opinion dismissing plaintiff's complaint with prejudice as to the

Governing Body.    On March 17, 2017, the trial judge issued an

order dismissing the complaint with prejudice as to the Board on


3
   Although plaintiff is self-represented, we note that he is
licensed to practice law in Pennsylvania.

                                 5                            A-3295-16T3
the same bases as her dismissal of the claims against the Governing

Body.

     The judge dismissed plaintiff's complaint, as a matter of

law, finding that the Borough's adoption of Ordinance 11.16,

deeming    the    entire     municipality     as     an    area    in   need     of

rehabilitation, was not arbitrary, capricious, or unreasonable.

     The    judge    also    distinguished        Ordinance   11.16     from   the

redevelopment ordinance challenged in Gallenthin I.                She explained

that an area in need of rehabilitation is governed by N.J.S.A.

40A:12A-14, and the taking of private property by eminent domain

is prohibited.      On the other hand, the judge reasoned that an area

in need of redevelopment is governed by N.J.S.A. 40A:12A-5, and

permits    the   acquisition      of    private    property   through    eminent

domain.    The judge concluded plaintiff failed to appreciate the

distinction      between    the   two    statutes.        After   reviewing    the

rehabilitation statute and the challenged ordinance, the judge

concluded that the Plan adopted by Ordinance 11.16 was consistent

with N.J.S.A. 40A:12A-14.

     "[A] municipality's adoption of . . . a redevelopment plan[]

is a discretionary decision . . . ."                  Powerhouse Arts Dist.

Neighborhood Ass'n v. City Council of Jersey City, 413 N.J. Super.

322, 332 (App. Div. 2010).         "A court will uphold such an exercise

of discretion unless 'arbitrary or capricious, contrary to law,

                                         6                                A-3295-16T3
or unconstitutional.'"       Ibid. (quoting Downtown Residents for Sane

Dev. v. City of Hoboken, 242 N.J. Super. 329, 332 (App. Div.

1990)).

      "Actions of a [municipal body] are presumed to be valid and

the   party   attacking   such      action   has       the   burden   of   proving

otherwise."     N.Y. SMSA Ltd. P'ship v. Bd. of Adjustment of Twp.

of Bernards, 324 N.J. Super. 149, 163 (App. Div. 1999).                    "When we

consider an appeal of a trial court's review of a municipal board's

action, we are bound by the same standard as the trial court."

Cohen v. Bd. of Adjustment of Borough of Rumsen, 396 N.J. Super.

608, 614–15 (App. Div. 2007).         However, we review interpretations

of law de novo.     See Nuckel v. Borough of Little Ferry Planning

Bd., 208 N.J. 95, 102 (2011).         Likewise, a trial court's decision

on a motion to dismiss for failure to state a claim is reviewed

de novo.   Smith v. Datla, 451 N.J. Super. 82, 88 (App. Div. 2017).

      Plaintiff argues the Governing Body failed to meet each of

the   statutory   criteria    for    adopting      a    redevelopment      plan    in

accordance with N.J.S.A. 40A:12A-7(a) because the Plan merely

recites the applicable criteria without explaining, in detail, the

precise nature of the Plan with respect to each element of the

statute.      The trial judge analyzed the Plan under each of the

statute's requirements and determined the Plan met the criteria

of N.J.S.A. 40A:12A-7(a).

                                       7                                    A-3295-16T3
       Having    reviewed    the   record,        we    agree    with   the    judge's

conclusion that the Plan is not arbitrary, capricious, or contrary

to law for the reasons expressed in her written opinion dated

March 10, 2017, supplementing her decision from the bench on March

3, 2017.    See also Bryant v. City of Atl. City, 309 N.J. Super.

596, 619 (App. Div. 1998) (requiring only an outline of a plan's

objectives).

       We next consider plaintiff's argument that Ordinance 11.16

amounts to an unconstitutional taking of his property. Plaintiff's

property was designated as an area in need of rehabilitation,

which precludes the municipality from exercising eminent domain

as to his property.         See N.J.S.A. 40A:12A-15 ("With respect to a

redevelopment        project       in        an         area       in       need      of

rehabilitation, . . . the municipality shall not have the power

to take or acquire private property by condemnation in furtherance

of a redevelopment plan . . . ."). The Plan expressly acknowledges

that    "[t]he     Project     Area     is    a        rehabilitation       area    and

therefore . . . property acquisition by eminent domain                         is not

authorized."

       Contrary    to   plaintiff's      arguments,            defendants     are   not

attempting to overturn the Court's decision in Gallenthin I.                          In

their oral and written arguments before the trial court, defendants

stated that they "do not now, nor have they ever, contended that

                                         8                                     A-3295-16T3
Ordinance    []11.16   designates   [p]laintiff's    [p]roperty     as    a

redevelopment area."

     In reviewing the record, we find Ordinance 11.16 does not

undermine the Court's decision in Gallenthin I.            The Borough is

not seeking redevelopment of plaintiff's property.            Rather, the

entire   Borough   has   been   designated   an     area    in   need    of

rehabilitation. Thus, the Court's decision in Gallenthin I remains

in effect, and Ordinance 11.16 does not contravene the holding in

that case.

     Affirmed.




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