                        NOT FOR PUBLICATION WITHOUT THE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-4421-15T2
                                                  A-0195-16T2
280    ERIE STREET, LLC;
212    MARIN BOULEVARD, LLC;
247    MANILA AVENUE, LLC;
317    JERSEY AVENUE, LLC;
354    COLE STREET, LLC;
389    MONMOUTH STREET, LLC;
415    BRUNSWICK STREET, LLC;
AND    446 NEWARK AVENUE, LLC,

              Plaintiffs-Appellants,

v.

CITY OF JERSEY CITY,

          Defendant-Respondent.
__________________________________

317    JERSEY AVENUE, LLC,
212    MARIN BOULEVARD, LLC;
247    MANILA AVENUE, LLC;
280    ERIE STREET, LLC;
354    COLE STREET, LLC;
389    MONMOUTH STREET, LLC;
415    BRUNSWICK STREET, LLC;
AND    446 NEWARK AVENUE, LLC,

              Plaintiffs-Appellants,

v.

CITY OF JERSEY CITY,

          Defendant-Respondent.
___________________________________
            Argued April 16, 2018 – Decided July 24, 2018

            Before Judges Messano, O'Connor, and Vernoia.

            On appeal from Superior Court of New Jersey,
            Law Division, Hudson County, Docket Nos. L-
            4619-15 and L-0843-16.

            Eric D. McCullough argued the cause for
            appellants (Waters, McPherson, McNeill, PC,
            attorneys; Eric D. McCullough and Daniel E.
            Horgan, of counsel; Eric D. McCullough, on the
            briefs.

            Jason M. Hyndman argued the cause for
            respondent (John J. Curley, LLC, attorneys;
            John J. Curley, of counsel; Jason M. Hyndman,
            on the brief).

PER CURIAM

      We consolidated these back-to-back appeals to issue a single

opinion.     Plaintiffs are limited liability companies that own

properties in the City of Jersey City (the City) known locally as

the Embankment.         In A-4421-15, plaintiffs appeal from the Law

Division's May 5, 2016 order that entered judgment in favor of the

City and dismissed plaintiffs' complaint in lieu of prerogative

writs challenging the City's adoption of Ordinance 15.125, which

authorized the City to issue bonds to fund the purchase of the

Embankment.       In    A-0195-16,   plaintiffs'   appeal   from    the    Law

Division's August 17, 2016 order that entered judgment in favor

of   the   City   and   dismissed    plaintiffs'   complaint   in   lieu    of

prerogative writs challenging passage of Ordinance 15.186.                That


                                       2                             A-4421-15T2
authorized the City to submit an Offer of Financial Assistance

(OFA) to the Surface Transportation Board (STB) pursuant to 49

U.S.C. § 10904, to obtain STB's approval of the purchase.

                                       I.

Background

     The Embankment is comprised of two at-grade lots and six lots

improved   with   stone,   earth-filled     railroad   embankment    walls.

Plaintiffs purchased the Embankment, part of the Harsimus Branch,

a railroad line used to transport freight, from Consolidated Rail

Corporation (Conrail) in 2005.1        The City challenged the sale,

arguing that Conrail failed to apply to the STB for permission to

abandon the Harsimus Branch as required by the Interstate Commerce

Commission Termination Act (ICCTA), 49 U.S.C. §§ 10101 to 11908,

specifically 49 U.S.C. § 10903, before demolishing the railroad

infrastructure and selling the land.            This led to protracted

litigation before the STB and in the federal courts, see City of

Jersey City v. Consolidated Rail Corp., 968 F. Supp. 2d 302 (D.D.C.

2013), aff'd., 2014 U.S. App. LEXIS 3067* (D.C. Cir. 2014),

resulting in a ruling that the Harsimus Branch was "subject to the

STB's abandonment jurisdiction."       Id. at 308.


1
  It is undisputed that sometime in the 1990s, Conrail terminated
all service on the Harsimus Branch and removed all track, signals
and bridges that connected the Embankment to the rail network west
of it.

                                   3                                A-4421-15T2
     In 2009, while the above-described litigation was pending,

Conrail began abandonment proceedings before the STB.                    49 U.S.C.

§ 10904(c) provides that after a rail carrier files for permission

to abandon a rail line, any person may offer to purchase the line.

If an OFA is submitted by a "financially responsible person" as

determined by the STB in accordance with 49 C.F.R. § 1152.27,

abandonment is postponed until either the carrier and the offeror

reach an agreement for the sale, or the STB sets terms and

conditions.         49 U.S.C. § 10904(d)(2).         Thereafter, the purchaser

may not discontinue service on the rail line for a period of two

years.        49 U.S.C. § 10904(f)(4)(A).            In March 2009, the City

submitted notice of its intention to file an OFA and purchase the

Harsimus Branch.

The City's Efforts to Acquire the Embankment

     In July 2010, the City adopted Ordinance 10.085 authorizing

bonding        of     approximately     $7.7     million       to    fund       "the

acquisition . . . of real property and the improvements thereon

known    as    the   Harsimus     Embankment   Park    and    Greenway    Project,

including, but not limited to, [the Embankment]."                   The ordinance

stated that "the estimated cost of the improvement or purpose" was

equal to the amount of the appropriation, and that the period of

usefulness for the proposed purposes was forty years.                  During the

litigation      in    the   Law   Division,    the   City's   special     railroad

                                         4                                  A-4421-15T2
counsel,    Henry   M.    Montagne,   certified    that    the   City   enacted

Ordinance 10.085 while it was engaged in settlement discussions

with plaintiffs to acquire the Embankment in a consensual sale,

and when this failed, the City decided to use the OFA process to

acquire the properties.

     In September 2014, the City adopted Ordinance 14.103, which

ostensibly approved the submission of an OFA and authorized the

Corporation Counsel and Business Administrator to take certain

steps in contemplation of purchasing the Embankment.               Plaintiffs

filed a complaint in lieu of prerogative writs, challenging the

ordinance and asserting the City Council's closed-door September

8, 2014 meeting at which members discussed the ordinance with

Montagne violated the Open Public Meetings Act (OPMA), N.J.S.A.

10:4-6 to -21.      Ultimately, the Law Division judge, Christine M.

Vanek, concluded the City had violated the OPMA; she invalidated

Ordinance    14.103      and   ordered   the   City   to   conduct      de   novo

proceedings "such that all non-privileged deliberations regarding

the ordinance are conducted before the public."

     While the challenge to Ordinance 14.103 was pending, the City

adopted Ordinance 15.125, which expressly authorized bonds or bond

anticipation notes for $7.7 million.           One expressed reason for the

ordinance was "to change the purpose of Ordinance 10.085."                      To

that end, Section 3 of Ordinance 15.125 stated that

                                         5                               A-4421-15T2
             the purpose for which the bonds are to be
             issued is (1) the acquisition . . . of real
             property and the improvements thereon known
             as the Harsimus Embankment Park and Greenway
             Project, including, but not limited to, [the
             Embankment], (2) the acquisition . . . of such
             additional property as may be necessary to
             link the properties described in clause (1)
             above   to    the    national   freight   rail
             network . . .    (3)     the   rehabilitation,
             replacement and/or reconstruction of all or a
             portion of the rail facilities located or
             previously located on the properties . . . and
             (4) the establishment of open space for active
             and/or     passive     recreation    by    the
             public . . . .

Section 3 further stated that the estimated cost of the listed

purposes was equal to the amount of the bond appropriation, and

Section 6 stated that the period of usefulness for these purposes

was thirty years, "representing a reduction from the [forty] years

stated in . . . Prior Ordinance [10.085]."

      Plaintiffs filed a complaint in lieu of prerogative writs

challenging    Ordinance    15.125.       They   primarily    contended    the

ordinance violated the Local Bond Law (LBL), N.J.S.A. 40A:2-1 to

-64, and the City failed to seek guidance from the Division of

Local Government Services (LGS) before setting the period of useful

life for the bonds' proposed purposes.           Following oral argument,

on May 5, 2016, Judge Vanek issued a comprehensive written decision

upholding Ordinance 15.125, finding in sum that plaintiffs failed

to   prove   the   City's   actions   were   arbitrary,      capricious,    or


                                      6                              A-4421-15T2
unreasonable.   Plaintiffs filed their notice of appeal in A-4421-

15.

      In the interim, on December 16, 2015, in response to the

judge's invalidation of Ordinance 14.103, the City introduced

Ordinance 15.186, which was largely identical to the earlier

ordinance and again authorized submission of an OFA to the STB.

The City attached to the ordinance a redacted transcript from the

city council's September 8, 2014 closed-door hearing, which was

released by the judge to plaintiffs during the earlier litigation.

After a public meeting on January 13, 2016, the City adopted

Ordinance 15.186.

      Plaintiffs filed suit, arguing the process again violated the

OPMA, the ordinance was legally flawed and the City's actions were

arbitrary, capricious and unreasonable.      After considering oral

argument, on August 17, 2016, Judge Vanek upheld Ordinance 15.186,

concluding the City did not violate the OPMA, the STB's exclusive

jurisdiction    pre-empted   plaintiffs'   arguments   regarding   the

validity of the proposed OFA and the City's actions were not

otherwise arbitrary, capricious or unreasonable. Plaintiffs filed

their notice of appeal in A-0195-16.




                                  7                           A-4421-15T2
                                II.
                         (As to A-4421-15)

     Plaintiffs' challenge to Ordinance 15.125, which authorized

the issuance of bonds for, among other things, the purchase of the

Embankment, reiterates several arguments made before the trial

judge.   Specifically, plaintiffs argue the ordinance violated the

LBL by failing to include separate cost estimates for each of its

four purposes, the ordinance's stated period of usefulness was in

violation of the LBL, and the City's failure to seek guidance from

LGS before adopting that period was fatal. We disagree and affirm.

     Our Constitution requires any law concerning the powers of

municipal corporations be liberally construed in their favor so

as to include those powers expressly conferred by the Legislature

or otherwise fairly implied.    D.L. Real Estate Holdings, LLC v.

Point Pleasant Beach Planning Bd., 176 N.J. 126, 132 (2003) (citing

N.J. Const. art. IV, § 7, ¶ 11).     Thus, "[m]unicipal ordinances,

like statutes, carry a presumption of validity."       Newfield Fire

Co. No. 1 v. Borough of Newfield, 439 N.J. Super. 202, 209 (App.

Div. 2015) (quoting Hutton Park Gardens v. Town Council of W.

Orange, 68 N.J. 543, 564 (1975)).

     "Accordingly, a party challenging a municipal ordinance has

a heavy burden[,]" ibid., and "an ordinance may be overturned only

if it is arbitrary and unreasonable."        Hudson County v. Jersey


                                 8                           A-4421-15T2
City, 153 N.J. 254, 266 (1998).     As Justice Pashman explained more

than forty years ago,

           Legislative bodies are presumed to act on the
           basis of adequate factual support and, absent
           a sufficient showing to the contrary, it will
           be assumed that their enactments rest upon
           some rational basis within their knowledge and
           experience. This presumption can be overcome
           only by proofs that preclude the possibility
           that there could have been any set of facts
           known to the legislative body or which could
           reasonably be assumed to have been known which
           would rationally support a conclusion that the
           enactment is in the public interest.

           [Hutton Park Gardens,         68   N.J.   at    564-65
           (citations omitted).]

"The job of a reviewing court is not to weigh the evidence for or

against an enactment, or to evaluate the wisdom of the policy

choice made."   New Jersey Shore Builders Ass'n v. Twp. of Jackson,

199 N.J. 38, 55-56 (2009) (citing Hutton Park Gardens, 68 N.J. at

565).

     Municipalities,    however,   may    not   wield     their   powers   "in

contravention of the overarching statutory grant of authority or

conflict   otherwise   with   an   express      statutory    limitation     or

prohibition."   Varsolona v. Breen Capital Servs. Corp., 180 N.J.

605, 625 (2004) (citations omitted).             They may not enact an

ordinance that violates the federal or state constitution.            Rumson

Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 351

(2003) (citation omitted).     We review such legal issues de novo.

                                    9                                A-4421-15T2
See, e.g., 388 Route 22 Readington Realty Holdings, LLC v. Twp.

of Readington, 221 N.J. 318, 338 (2015) ("In construing the meaning

of a statute, an ordinance, or our case law, our review is de

novo.").

      In   her   written     decision,    Judge   Vanek    found    that     the

ordinance's      language     and   other    evidence     in      the    record

"acknowledged . . . there [were] several complimentary components

of an overarching goal with respect to the subject property."                She

further found that the ordinance "specifically state[d] that the

purpose of the funding [was] the acquisition of the Embankment

property," and concluded the purchase of other properties to link

to a rail network, the rehabilitation of the properties to support

rail service, and the establishment of open space were all tied

to that acquisition.

      The judge reasoned that "the greater level of specificity

provided in Ordinance 15.125 . . . [did] not negate . . . the

ordinance has a single purpose" and render it invalid for failing

to   set   multiple   cost   estimates.     She   also    found    there    were

sufficient facts before the city council to support a cost estimate

of $7.7 million, including the Council's deliberations on the

prior Ordinance 10.085 and advice from Montagne and the city's

bond counsel.



                                    10                                  A-4421-15T2
      Plaintiffs first argue the LBL requires every bond ordinance

to "estimate the costs of each of" its purposes and "disclose the

same to the public."       They argue the evidence fails to support the

trial   judge's    conclusion      that   there   was    a     single   overriding

purpose.

      The LBL provides:

            A bond ordinance shall contain in substance
            the following:

                   a.(1) an authorization for the
                   issuance of obligations, stating in
                   brief and general terms sufficient
                   for reasonable identification the
                   purpose or purposes for which the
                   obligations are to be issued, a
                   statement of the estimated maximum
                   amount of bonds or notes to be
                   issued, and the estimated cost of
                   such purpose or purposes, but
                   related improvements or properties
                   may be treated as one improvement or
                   property . . . .

                   [N.J.S.A. 40A:2-12(a)(1) (emphasis
                   added).]

The   statute     only   mandates     that    "certain       required    items       of

information must first be set forth 'in brief and general terms'

in the bond ordinance.           No other matters are required to be set

forth   therein."        Dolan   v.   Tenafly,    75    N.J.    163,    170    (1977)

(emphasis   in    original)      (quoting    N.J.S.A.    40A:2-12);       see     also

Matlack v. Bd. of Chosen Freeholders, 191 N.J. Super. 236, 251-

252 (Law Div. 1982) (citing Dolan, 75 N.J. at 171-72) ("In advising

                                       11                                     A-4421-15T2
the public of their purpose, bond ordinances need not particularize

every ramification, product or denouement in implementing that

purpose.").

     Plaintiffs argue there was no "factual support" connecting

the stated purposes of creating "open space" on the Embankment

with construction of railroad improvements, or that the City ever

intends to continue rail service, as required by the STB, on the

Embankment.   However,   the    record    amply   supports   the   judge's

conclusions that Ordinance 15.125 expressed the City's singular

purpose for issuing the bonds was to acquire the Embankment for

the various uses listed.       The brief history we described above

makes that abundantly clear, and plaintiffs' skepticism about the

City's intent to utilize the Embankment for rail service does not,

for our purposes of review, make the adoption of Ordinance 15.125

arbitrary, capricious or unreasonable.

     Plaintiffs argue with no legal support that we must set aside

Ordinance 15.125 because the City was required to supply cost

estimates for all four "purposes" set out in the ordinance.

However, plaintiffs' reliance, such as it is, on Judge Conford's

dissenting opinion in Dolan misses the point of the majority's

holding.

     In Dolan, 75 N.J. at 167, the municipality approved a bond

ordinance to purchase open space.        Subsequent events resulted in

                                  12                               A-4421-15T2
the municipality passing a resolution that approved the purchase

of significantly less acreage, albeit at a slightly reduced cost,

from that described in the ordinance.             Id. at 167-68.         Plaintiffs

challenged the resolution, arguing it violated the LBL because the

municipality could not alter by resolution the purpose for which

the bonds were to be issued, the maximum amount of the bonds or

the estimated costs of the project.            Id. at 169-71.

     The Court rejected these claims, noting in part:

            This argument fails to recognize the need for
            sufficient flexibility in the fiscal mechanism
            to permit adaptation to conditions and
            circumstances discovered during the execution
            of a project. It would seriously hamper the
            effectuation     of     substantial     public
            improvements were it necessary to set forth
            in specific detail every element of such a
            proposal   and  then   require   an   amending
            ordinance each time a change became necessary
            or desirable.

            [Id. at 172.]

Where there are "good faith proceedings" in adopting an ordinance,

the LBL is not intended "to demand rigid adherence to initial

calculations which are no more than preliminary estimates . . . ."

Ibid.     Plaintiffs' argument here is unavailing.

     Plaintiffs next contend we must set aside Ordinance 15.125

because    it   does    not   include   periods       of    usefulness    for   each

component,      the    City   could   not    supply    an    average     period    of

usefulness without pricing each component, the record is devoid

                                        13                                  A-4421-15T2
of any facts supporting the estimated period of usefulness, and

the City was required to seek the approval of LGS before setting

the useful life period at thirty years.              Judge Vanek concluded

there was one overriding purpose for the ordinance, and, therefore,

the City did not need to include multiple estimated periods of

usefulness.   She also determined the LBL did not require that the

ordinance describe the methodology used to calculate the period

of usefulness.     We agree with this reasoning.

     N.J.S.A.    40A:2-12(b)     states   that   a   bond   ordinance     must

contain "a determination of the period of usefulness of the purpose

within the limitations of this chapter or, if issued for several

purposes, a determination of the average period of usefulness,

taking into consideration the respective amounts of obligations

authorized for the said several purposes." In other words, nothing

in the statute's plain language mandates an ordinance include a

description   of    how   a   municipality   determined     the   period     of

usefulness.     Clearly, in reaching its decision, a municipality

cannot act in an arbitrary, capricious or unreasonable fashion.

However, Judge Vanek noted the City had reasonably relied upon

"the useful life categories listed in N.J.S.A. 40A:2-22" in setting

the thirty year period.       We agree.

     N.J.S.A.      40A:2-22    provides   that   a     municipality     shall

"determine the period of usefulness of any purpose according to

                                    14                                A-4421-15T2
its reasonable life computed from the date of the bonds."                        It

provides different categories of purposes and the maximum periods

of usefulness that may be assigned to each. Ibid. N.J.S.A. 40A:2-

22(a)(1) sets a maximum period of usefulness of thirty years for

"[b]ridges, including retaining walls and approaches, or permanent

structures of brick, stone, concrete or metal, or similar durable

construction."     Subsection (d) of N.J.S.A. 40A:2-22 is entitled

"Real property," and sets a forty-year period of usefulness for

"[a]cquisition for any public purpose of lands . . . ."                  N.J.S.A.

40A:2-22(d)(1).     The creation of a park, trail, or other open

space appears to fall squarely under this provision.

     The   purchase   of    land    for       railway   improvements      is   not

specifically     covered    by    the        statute,   although   the     City's

acquisition of the Embankment is "for a[] public purpose," N.J.S.A.

40A:2-22(d)(1),    and,    in    this   unique     case,   includes   acquiring

"permanent structures . . . of durable construction," N.J.S.A.

40A:2-22(a)(1).     In short, nothing in the record supports the

assertion that the City violated the LBL by setting a thirty-year

period of usefulness.       Moreover, the change from the forty-year

period in Ordinance 10.085, to the thirty-year period in Ordinance

15.125, recognized one of the intended uses for the Embankment now

included rail-related construction.



                                        15                                A-4421-15T2
       Lastly, plaintiffs' contention that the City was required to

seek the advice of LGS before setting a period of usefulness in

the    ordinance    lacks     sufficient    merit    to   warrant     extensive

discussion.      N.J.S.A. 40A:2-22.1 provides:        "A [municipality] may

request . . . that the Director of [LGS] determine a period of

usefulness for any capital improvement or property not included

in    N.J.S.A.    40A:2-22,    provided    that     the   maximum     period    of

usefulness so determined shall not exceed 15 years."                  The judge

concluded the statue's use of the term "may" indicated it was

permissive and did not compel the City to request the opinion of

LGS.    See Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325

(2000).    We agree.

       We affirm in A-4421-15.

                                        III.
                                 (As to A-0195-15)

       Plaintiffs' challenge to Ordinance 15.186 is multi-faceted.

They attack the ordinance by arguing it authorized the filing of

a legally deficient OFA, because there was no evidence supporting

a "need for rail service on the Embankment" and the City's true

"improper purpose" was to acquire plaintiffs' properties for other

"non-rail     purposes."       Plaintiffs    also     argue    the    ordinance

improperly       delegated    "legislative    judgment"       to     non-elected

officials and New Jersey law prohibits a municipality from filing


                                     16                                  A-4421-15T2
an OFA.    Lastly, plaintiffs contend the City failed to cure its

prior violation of the OPMA when it enacted Ordinance 15.186.

     Judge Vanek concluded the plain language of 49 U.S.C. § 10501

pre-empted her consideration of plaintiffs' arguments regarding

the legal sufficiency of the City's OFA and plaintiff's suggestion

that the STB would otherwise reject the OFA.          She found that §

10501 granted the STB exclusive jurisdiction over the OFA process,

holding:

           The court is without jurisdiction to conclude
           that the OFA, which has not even been filed
           at this juncture, would in fact violate
           applicable laws. It is within the exclusive
           province of the STB to determine whether the
           OFA that is ultimately submitted is proper
           under its applicable standard of review.

We agree with her analysis.

     49 U.S.C. § 10501(b)(2) states that the STB's jurisdiction

over "the construction, acquisition, operation, abandonment, or

discontinuance   of   spur,   industrial,   team,   switching,   or   side

tracks, or facilities . . . is exclusive."          Further, except as

otherwise provided in the ICCTA, all statutory remedies "with

respect to regulation of rail transportation" are exclusive. Ibid.

     In Chicago & North Western Transporation Company v. Kalo

Brick & Tire Company, 450 U.S. 311, 320 (1981), the United States

Supreme Court found the STB's predecessor agency, the Interstate

Commerce Commission, had "exclusive" and "plenary" authority "to

                                  17                              A-4421-15T2
regulate abandonments."          The Court further held the breadth of the

ICC's statutory discretion in abandonment matters "suggest[ed] a

congressional     intent    to    limit   judicial   interference   with     the

agency's work."        Id. at 321.

      The Court addressed a state court's decision upholding a

state statute's damages remedy for a disappointed shipper after a

rail carrier abandoned a line.            Id. at 324-32.     The Court found

the state was preempted from affording such a remedy, because

"Congress granted the exclusive discretion" "to the [ICC]" to

decide whether an abandonment was proper.                Id. at 326.        Thus,

"there [was] no further role that [a] state court could play" by

awarding damages related to an abandonment, since this would be

contrary to Congress' grant of exclusive authority to the ICC.

Ibid.

      In Borough of Columbia v. Surface Transportation Board, 342

F.3d 222, 231-32 (3rd Cir. 2003), the Third Circuit made clear

that a reviewing court could not compel the STB to require a

certain level of proof regarding the likelihood of continued rail

service before the agency accepted an OFA.              The court stated such

review "would . . . ignore that Congress has tasked that agency,

not     [a]   court,    with     factfinding    responsibilities"      in    OFA

proceedings.       Id.     at    232.     The   court   further   found     that

"[e]valuating and comparing minutiae in the evidence" for and

                                        18                             A-4421-15T2
against the validity of a given OFA "would be neither a desirable

nor a practicable level of review for [a] court to undertake --

especially when it is the STB's 'exclusive province to draw

legitimate    inferences        from     the      evidence.'"           Ibid.        (quoting

Redmond-Issaquah         R.R.   Preservation         Ass'n       (RIRPA)       v.    Surface

Transp. Bd., 223 F.3d 1057, 1064 (9th Cir. 2000)).

     Plaintiffs'         reliance      on    Ridgefield          Park     v.     New      York

Susquehanna & W. Ry. Corp., 163 N.J. 446 (2000), and Norfolk S.

Ry. Co. v. Intermodal Props., LLC, 424 N.J. Super. 106 (App. Div.

2012), is misplaced.            Ridgefield Park involved the scope of

municipal regulation of railroad properties, and whether federal

law preempted that particular action.                  Ridgefield Park, 163 N.J.

at 460-62 (holding municipality could enforce safety codes on

railroad property, but not compel site plan approval).                          In Norfolk

Southern, 424 N.J. Super. at 126-27, citing the STB's precedent,

we concluded that the railroad's exercise of eminent domain was

subject to state law and not otherwise pre-empted by federal law.

     Here, the issue was whether a state court should consider the

merits   of   an    OFA    in   deciding          whether    a    municipality          acted

arbitrarily, capriciously or unreasonably in enacting an ordinance

permitting the submission of an OFA.                 Congress has granted the STB

exclusive     jurisdiction        over      the    merits    of     any    OFA.           More

importantly,       the    trial     judge         never     concluded          she     lacked

                                            19                                        A-4421-15T2
jurisdiction       to    consider   plaintiffs'     challenge     to   Ordinance

15.186.      She        only   determined    federal     law    pre-empted    her

consideration of those arguments that challenged the potential

OFA's conformity with federal requirements or STB's potential

approval.

       It is clear that the STB may ultimately deny the City's OFA

because, as plaintiffs contend, the municipality has no intention

to continue rail service on the Embankment.              See, e.g., RIRPA, 223

F.3d   at   1062    (noting     that   the   STB   has   been   "consistent     in

continuing to require" that an OFA be for continued rail service

on a line that otherwise would be abandoned).2                  However, Judge

Vanek correctly concluded the decision was the STB's to make.



2
 After the briefs were filed, plaintiffs brought to our attention
the STB's June 29, 2017, decision concerning rulemaking to modify
agency procedures pertaining to OFAs.     Therein, the STB stated
that its existing precedents require that an OFA "be for continued
rail service." STB Docket No. EP 729, pp. 15-16. We acknowledge
that case law and agency guidance require an OFA offeror to
demonstrate bona fide intentions to continue rail service on an
abandoned line. Whether the City can actually carry that burden,
particularly in light of its intention to use at least some of the
Embankment as open space, is for the STB to decide.

     Additionally, plaintiffs' argument that State law prohibits
the City from using an OFA to purchase abandoned rail lines lacks
sufficient merit to warrant discussion.      R. 2:11-3(e)(1)(E).
N.J.S.A. 40:9-2.1 provides a municipality "may acquire, by
purchase or lease, maintain, improve, equip and operate any
existing public transportation passenger or freight rail line,
including its appurtenant lands and ancillary structures and
facilities."

                                        20                               A-4421-15T2
     Plaintiffs    also    urge   us    to    invalidate    Ordinance    15.186

because it improperly delegated broad authority to the City's

Corporation Counsel and Business Administrator to prepare and file

the OFA and purchase plaintiffs' properties.               A legislative body

like the city council "may delegate its authority as long as it

provides standards to guide the discretionary exercise of the

delegated power."    Worthington v. Fauver, 88 N.J. 183, 208 (1982).

If an ordinance making such a delegation "is totally devoid of

standards   to   guide    and   control      administrative   officials,"      it

"cannot stand."     Flama Constr. Corp. v. Franklin, 201 N.J. Super.

498, 503 (App. Div. 1985).         However, standards in an ordinance

governing the exercise of delegated authority may be either express

or implied from the ordinance as a whole.             Ibid.     Standards may

also be "general, as long as they are as precise and revealing as

the subject reasonably permits," Worthington, 88 N.J. at 209, and

"as long as they are sufficiently specific to guide" those to whom

the delegation is made "in the exercise of [their] discretion."

In re Egg Harbor Assocs., 94 N.J. 358, 372 (1983).

     Judge Vanek rejected plaintiffs' contention that Ordinance

15.186 was an unlawful delegation of authority to the Corporation

Counsel and Business Administrator.               She noted the ordinance

provided sufficient guidance because it required any OFA actually

submitted by the City comply with applicable law.                  The judge

                                       21                               A-4421-15T2
additionally observed that the ordinance required further council

approval if the purchase price for the Embankment exceeded $5.7

million.   In short, the ordinance provided sufficient guidance for

the   City's   executive   officers      to    consummate   the       council's

delegated functions.       Again, we agree with the trial judge's

reasoning and reject plaintiffs' argument.

      Plaintiffs further argue that the City failed to comply with

the OPMA because the council did not adopt Ordinance 15.186 in

true de novo proceedings.        Plaintiffs also contend that the City

waived   any   attorney-client    privilege     by   attaching    a   redacted

transcript of the September 8, 2014 meeting to the ordinance, and

the judge erred in finding the City complied with OPMA without

compelling the City to produce an unredacted copy for the public.

      In her written decision, Judge Vanek concluded the City did

not need to repeat anew all that was said at the September 8, 2014

meeting, which violated the OPMA.             The Corporation Counsel had

appraised the council members of the City's reliance upon what

took place at that meeting, and the council and members of the

public were given the opportunity to review what had transpired

by reading the transcript.         The judge's opinion cited to the

vigorous debate among council members, and between the council and

the public, at the January 16, 2016 meeting.             She reasoned the

City had adequately considered de novo the ordinance, concluding

                                    22                                  A-4421-15T2
the proceedings "satisfie[d] the purpose and spirit of [the] OPMA

of transparency in government."       The judge rejected plaintiffs'

claims regarding the redacted transcript, concluding the court had

ruled in prior litigation what portions of the transcript were

privileged and subject to redaction, the assertion of privilege

did not violate the OPMA and the City had not waived the privilege.

We again agree.

     "[The OPMA] makes explicit the legislative intent to ensure

the public's right to be present at public meetings and to witness

government in action."   Kean Federation of Teachers v. Morell, ___

N.J. ___, ___ (2018) (slip op. at 3).       "That legislative intent

is balanced by an express recognition that public bodies must be

allowed to exercise discretion in determining how to perform their

tasks . . . ."    Ibid. (citations omitted).

     Actions taken by a public body at a meeting that does not

conform to the OPMA's requirements are voidable.      N.J.S.A. 10:4-

15(a).   However, a public body "may take corrective or remedial

action by acting de novo at a public meeting held in conformity

with" the statute.   Ibid.   In the context of the OPMA, the phrase

"de novo" means "to consider anew, or afresh, for a second time."

Houman v. Pompton Lakes, 155 N.J. Super. 129, 164 (Law Div. 1977).

By using this phrase, the Legislature intended "that a public

body . . . must reconsider its action completely anew, for a second

                                 23                          A-4421-15T2
time, in full compliance with all the requirements" of the OPMA.

Ibid.

       N.J.S.A. 10:4-15(a) "contemplate[s] maximum flexibility in

rectifying governmental action which falls short of the standards

of openness prescribed for the conduct of official business."

Polillo v. Deane, 74 N.J. 562, 579 (1977); see Precision Industrial

Design Co. v. Beckwith, 185 N.J. Super. 9, 19 (App. Div. 1982)

(holding that Polillo requires "the nature, quality and effect of

the noncompliance with the [OPMA] be considered in the judicial

fashioning of an appropriate remedy").             Notably, in Polillo, 74

N.J. at 580, the Court specifically approved of the public entity's

discretionary authority to utilize testimony and evidence received

at prior hearings that violated the OPMA.

       We also agree with Judge Vanek's conclusion that the City's

decision to utilize the redacted transcript of the September 8,

2014    meeting   did   not   waive   its    assertion    of   attorney-client

privilege.    As she noted, the trial court had already acknowledged

that some portions of the transcript were privileged.                   The OPMA

excepts "matters falling within the attorney-client privilege"

from disclosure at a public meeting.           N.J.S.A. 10:4-12(b)(7).

       To the extent we otherwise have not specifically addressed

plaintiffs'   arguments,      they    lack   sufficient    merit   to    warrant

discussion in a written opinion.            R. 2:11-3(e)(1)(E).

                                      24                                 A-4421-15T2
Affirmed in A-0195-16.




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