                   NOT FOR PUBLICATION WITHOUT THE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, 60 N.J. 142 (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."                            Rutgers, supra, 60

N.J. at 158; 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.                       Rutgers, supra, 60 N.J. at

144, 159.         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, 172 N.J. 147,

150 (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."                   Rutgers, supra, 60 N.J. at 153

(citing Washington Twp. v. Village of Ridgewood, 26 N.J. 578,

584-86 (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, 172 N.J. at 150 (quoting Garden State Farms, Inc. v. Bay,

77   N.J.     439,    455-56        (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."         Id.    at    151    (quoting

Holgate Prop. Assocs. v. Twp. of Howell, 145 N.J. 590, 601, 603

(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., 440

N.J. Super. 310, 319 (App. Div.) (quoting Garden State Farms,

Inc.,    supra,    77    N.J.    at    455),      certif.     denied,    222      N.J.   310

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

concerns.       See Kearny v. Clark, 213 N.J. Super. 152, 160-61

(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, 209 N.J. Super. 267,

280     (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, 104

N.J. 464 (1986); see also City of Newark v. N.J. Turnpike Auth.,

7 N.J. 377, 381-82, appeal dismissed, 342 U.S. 874, 72 S. Ct.

168, 96 L. Ed. 657 (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."             Kearny, supra, 213 N.J. Super. at 160.

      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.,         227    N.J.    Super.       5,    14       (App.     Div.)    (citing

Rutgers, supra, 60 N.J. at 152-53) (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
111 N.J. 640 (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, 306 N.J. Super. 266, 273-74

(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,    227    N.J.    Super.       at    14

(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.




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