                        NOT FOR PUBLICATION WITHOUT THE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-1335-15T1


FRIENDS OF RAHWAY
BUSINESS, L.L.C.,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

RAHWAY MUNICIPAL COUNCIL
AND CITY OF RAHWAY,

     Defendants-Appellants/
     Cross-Respondents.
_________________________________

              Argued May 18, 2017 – Decided July 5, 2017

              Before Judges Hoffman, O'Connor and Whipple.

              On appeal from Superior Court of New Jersey,
              Law Division, Union County, Docket No. L-0410-
              15.

              Brian M. Hak argued the cause for appellants
              (Weiner Lesniak, L.L.P., attorneys; Mr. Hak,
              of counsel and on the briefs; John P. Miller
              and Julia O. Donohue, on the briefs).

              William H. Michelson argued the cause for
              respondents.

              Robert S. Goldsmith argued the cause for
              amicus curiae Morristown Partners, Inc., d/b/a
              Morristown   Partnership   (Greenbaum,   Rowe,
         Smith   &  Davis,   L.L.P.,   attorneys;   Mr.
         Goldsmith, of counsel and on the brief; Robert
         J. Flanagan, III, on the brief).

         Edward Purcell argued the cause for amicus
         curiae   New    Jersey   State    League of
         Municipalities and New Jersey Institute of
         Local Government Attorneys (Mr. Purcell,
         Associate Counsel, on the brief).

         Edward J. Trawinski argued the cause for
         amicus curiae New Jersey Managed Districts
         Association     and     Ironbound     Business
         Improvement District (Schenck Price Smith &
         King, L.L.P., attorneys; Mr. Trawinski, on the
         brief).

         Melanie R. Walter, Deputy Attorney General,
         argued the cause for amicus curiae New Jersey
         Office of the Attorney General (Christopher
         S. Porrino, Attorney General, attorney;
         Melissa H. Raksa, Assistant Attorney General,
         of counsel; Ms. Walter and Susan M. Scott,
         Deputy Attorneys General, on the brief).

PER CURIAM

    Defendants     Rahway   Municipal   Council   and   City    of    Rahway

(Rahway) appeal from the October 19, 2015 Law Division order

invalidating   a   municipal   ordinance   enacted   under   the     Special

Improvement District (SID) statutes, N.J.S.A. 40:56-65 to -89.

Plaintiff cross-appealed the denial of counsel fees.           Four amicus

briefs were submitted, with the court's approval.        Because of the

trial court's misinterpretation of N.J.S.A. 40:56-65 to -89, we

reverse and vacate certain provisions of the October 19, 2015




                                   2                                 A-1335-15T1
order, affirm the denial of counsel fees, and remand for further

proceedings.

      In September 1993, Rahway adopted Ordinance No. A-40-93,

pursuant to N.J.S.A. 40:56-65 to -89, amending the Rahway Municipal

Code to create a SID.        The ordinance allowed the city to collect

special assessments on affected properties.                In 2014, Rahway

enacted Ordinance No. 0-42-14 (the Ordinance), expanding the SID

to include all non-residential and non-public properties in the

city, and residential properties with more than four units. Rahway

sent letters to affected property owners providing notice of a

December 8, 2014 public hearing.          Some affected property owners

claim they only received the notices on December 5, 2014, but at

least twenty-five members of the public attended.

      Affected property owners formed plaintiff Friends of Rahway

Business, L.L.C. to challenge the Ordinance, and filed a complaint

in the Law Division through plaintiff.             The court conducted a

hearing on October 9, 2015, where plaintiff argued Rahway had not

utilized money from the SID since 1993 and the expansion of the

SID was only to collect additional assessments.             Plaintiff also

argued the affected property owners were given insufficient notice

for   the   Ordinance   to   be   enacted,   the   scope   of   the   SID   was

unprecedented, and defendants' actions amounted to constitutional

violations entitling plaintiff to counsel fees.             Rahway asserted

                                      3                                A-1335-15T1
all     statutory     notice       requirements        were        satisfied,    and     the

Ordinance     is    subject       to   a    presumption       of    validity.       Rahway

referenced other towns with similar SIDs and argued the statute

does not prohibit a citywide SID.

       The judge disagreed with Rahway and invalidated the Ordinance

in    the   October    19,     2015        order.      The    judge     considered       the

legislative        intent    of    the      enabling    statutes        and     found   the

legislature had not intended for a SID to encompass an entire

city.       The judge denied plaintiff counsel fees and failed to

address plaintiff's other arguments.                 This appeal followed.             Amici

support and join in the arguments raised by Rahway, and urge us

to overturn the judge's decision.

       At the outset, we note our standard of review.                         A court may

not substitute its judgment for that of a municipal body unless

it is proven the Board's action was arbitrary, unreasonable or

capricious.        Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of

W. Windsor Twp., 172 N.J. 75, 81 (2002) (citing Medici v. BPR Co.,

107 N.J. 1, 15 (1987)).

       Rahway argues the trial judge should have yielded to the

Ordinance's required presumption of validity.                       Rahway also assails

four findings of the trial judge.                 Specifically, Rahway challenges

the judge's findings that the SID statute does not allow: 1) a

municipal-wide SID; 2) SIDs containing non-contiguous properties;

                                              4                                    A-1335-15T1
3) SIDs in an area of a municipality other than a traditional

"downtown" area; and 4) SIDs containing non-commercial use, such

as industrial and certain multi-family apartment properties.                   We

address each argument in turn.

     The judge considered the presumption of validity attached to

municipal   ordinances.      Lake   Valley       Assocs.,   LLC   v.   Twp.    of

Pemberton, 411 N.J. Super. 501, 505 (App. Div.), certif. denied,

202 N.J. 43 (2010).       The SID statute provides "municipalities

should be given the broadest possible discretion in establishing

by local ordinance the self-help programs most consistent with

their   local   needs,   goals,   and       objectives."    N.J.S.A.     40:56-

65(b)(3).   In fact, the trial judge addressed the presumption by

saying, "[t]his presumption may only be overcome by a showing that

the [O]rdinance is arbitrary or unreasonable, or that it is

constitutionally defective on its face[,]" and "a court need only

decide whether the [O]rdinance represents a reasonable exercise

of the legislature's delegation of authority to municipalities in

enacting the SID statute."

     However,     the    judge    determined       "[c]ontrary     to     being

presumptively valid, the court finds [the Ordinance], expanding

the SID, to be irreconcilable with the enabling statutes and the

legislative intent behind the states' enactment."                  The judge

considered the Ordinance "an improper exercise of the authority

                                        5                               A-1335-15T1
delegated to the City Council under the SID statutes," and ordered

it invalidated.

     In Fanelli v. City of Trenton, 135 N.J. 582 (1994), our

Supreme Court stated,

           In determining whether [an] ordinance is
           authorized by the SID statute, we do not pass
           on the wisdom of the City's plan.     We need
           decide only whether the ordinance represents
           a reasonable exercise of the Legislature's
           delegation of authority to municipalities in
           enacting the SID statute.    Furthermore, we
           interpret those delegated powers broadly.

           [Fanelli, supra, 135 N.J. at 591 (citations
           omitted).]

     It is well established, a statute's plain language is the

clearest indication of its meaning.               Bergen Commercial Bank v.

Sisler, 157 N.J. 188, 202 (1999) (citing Lehmann v. Toys 'R' Us,

Inc., 132 N.J. 587, 600-01 (1993); Grigoletti v. Ortho Pharm.

Corp., 118 N.J. 89, 107-08 (1990)).           When interpreting a statute,

our "overriding goal is to give effect to the Legislature's

intent."    State   v.   D.A.,   191       N.J.   158,   164   (2007)   (citing

DiProspero v. Penn, 183 N.J. 477, 492 (2005)).            The best indicator

of that intent is "the plain [statutory] language chosen by the

Legislature."     State v. Perry, 439 N.J. Super. 514, 523 (App.

Div.), certif. denied, 222 N.J. 306 (2015) (quoting State v.

Gandhi, 201 N.J. 161, 176 (2010)).            We thus read the text of a

statute in accordance with its ordinary meaning unless otherwise

                                       6                                A-1335-15T1
specified.      Ibid.; see also N.J.S.A. 1:1-1 (explaining "words and

phrases [in statutes] shall be read and construed with their

context, and shall, unless inconsistent with the manifest intent

of the legislature or unless another or different meaning is

expressly indicated, be given their generally accepted meaning,

according to the approved usage of the language.").

      In cases where a plain reading of the statute "leads to a

clear and unambiguous result, then the interpretive process should

end, without resort to extrinsic sources."                      D.A., supra, 191 N.J.

at 164 (citing DiProspero, supra, 183 N.J. at 492).                          If, however,

the plain language of the statute is ambiguous, we may turn to

extrinsic      evidence      to    determine         the   Legislature's       intent    in

enacting the statute.             Ibid.    Turning to such extrinsic evidence

is also necessary if a plain reading of a statute renders "an

absurd result" at odds with the Legislature's intent.                              Ibid.;

State v. Williams, 218 N.J. 576, 586 (2014) (citing DiProspero,

supra,   183    N.J.    at    493).        Such       extrinsic    evidence     includes

"legislative      history,        committee          reports,    and   contemporaneous

construction."         DiProspero, supra, 183 N.J. at 492-93 (quoting

Cherry Hill Manor Assocs. v. Faugno, 182 N.J. 64, 75 (2004)). Such

evidence aids us in elucidating the Legislature's intent.                         We "may

not   rewrite    a   statute       or     add       language    that   the   Legislature



                                                7                                 A-1335-15T1
omitted."     State v. Munafo, 222 N.J. 480, 488 (2015) (citing

DiProspero, supra, 183 N.J. at 492).

     The SID statute defines "special improvement district" as an

area within a municipality designated by municipal ordinance as

"an area in which a special assessment on property within the

district shall be imposed for the purposes of promoting the

economic and general welfare of the district and the municipality."

N.J.S.A. 40:56-66(b).      Our Supreme Court has held        a special

assessment is different from a tax, and such assessments reimburse

the town for improvements made to SID properties.    2nd Roc-Hersey

Assocs. v. Town of Morristown, 158 N.J. 581, 592-96 (1999).

     N.J.S.A. 40:56-68(b) allows a municipality to adopt a SID if

the municipality finds:

            (1) that an area within the municipality, as
            described by lot and block numbers and by
            street addresses in the enabling ordinance,
            would benefit from being designated as a
            special improvement district; (2) that a
            district management corporation would provide
            administrative and other services to benefit
            the businesses, employees, residents and
            consumers in the [SID]; (3) that a special
            assessment shall be imposed and collected by
            the municipality with the regular property tax
            payment or payment in lieu of taxes or
            otherwise, and that all or a portion of these
            payments shall be transferred to the district
            management corporation to effectuate the
            purposes of this amendatory and supplementary
            act and to exercise the powers given to it by
            municipal ordinance; and (4) that it is in the
            best interests of the municipality and the

                                  8                            A-1335-15T1
          public to create a [SID] and to designate a
          district management corporation; except that
          no district management corporation shall be
          designated to receive any funds or to exercise
          any powers pursuant to the provisions of this
          amendatory and supplementary act, unless the
          board of directors of that corporation shall
          include at least one member of the governing
          body of the municipality.

When creating the SID, the ordinance "may exempt residential

properties, residential portions of mixed use properties, parcels

with any number of residential units, or vacant properties located

within the district from special assessment."     N.J.S.A. 40:56-

66(b).

     The statute allows the governing body to "authorize the

commencement of studies and the development of preliminary plans

and specifications relating to the creation and maintenance of a

pedestrian mall facility or [SID], including, whenever possible,

estimates of construction and maintenance, and costs and estimates

of potential gross benefit assessment."   N.J.S.A. 40:56-70.

     The statute also provides for the designation of "downtown

business improvement zones":

          Any municipality which has adopted or adopts
          an ordinance authorizing the establishment of
          a [SID] pursuant to section 7 of P.L. 1972,
          c. 134 [N.J.S.A. 40:56-71] may, by ordinance,
          designate all or any portion of that district
          which contains primarily businesses providing
          retail goods and services as a "downtown
          business improvement zone," notwithstanding


                                9                          A-1335-15T1
           that the designated zone is located within an
           urban enterprise zone.

           [N.J.S.A. 40:56-71.2.]

The statute defines "downtown business improvement zone" as "a

zone designated by a municipality, by ordinance, pursuant to

section 2 of P.L.1998, c.115 in order to promote the economic

revitalization of the municipality through the encouragement of

business improvements within the downtown area."          N.J.S.A. 40:56-

71.1.

     Regarding imposition of a citywide SID, the trial judge made

the following findings:

           These words and phrases, read and construed
           within their context, indicate that the
           legislature's intent in enacting the statute
           was for SIDs to be considered specific regions
           within the larger municipality. No words or
           phrases in N.J.S.A. 40:56-66 indicate that the
           legislature intended the statute to be
           construed to mean that an entire municipality
           was envisaged as a potential SID.

The judge further found "[i]t is improbable that the legislature

intended   that   an   entire   [c]ity   could   be   considered   a     SID."

     Rahway asserts the size and boundaries of the SID are not the

relevant   inquiry.      Rahway   frames   the   issue   as   "whether      the

municipality's governing body could find the area, no matter where

it is located, would benefit from being designated as a SID."




                                   10                                  A-1335-15T1
Rahway challenges the trial judge's concern a municipal SID would

amount to a special assessment for every nonresidential property.

       We agree with defendants the SID statute does not specifically

prohibit a citywide SID; the language of the pertinent statutory

provisions merely suggests a SID could be a small, designated area

within a municipality.    For example, a SID is defined as an "area

within a municipality" that the municipality designates through

an ordinance.   N.J.S.A. 40:56-66(b).   Additionally, a municipality

can create a SID if it finds "an area within the municipality . .

. would benefit from being designated as a SID."      N.J.S.A. 40:56-

68(b)(1) (emphasis added).

       The trial judge relied on the language in these statutes, as

well as a news release from the Office of the Governor and a

statement issued by the legislature when the 1984 amendment to the

SID statute was enacted.      However, the governor's press release

indicated the legislation would allow "municipalities to create

[SIDs] to promote economic growth and employment in downtown

business districts," and the legislature's statement accompanying

the enactment of the 1984 amendment stated the statute "would

permit municipalities to establish [SIDs] to promote economic

growth and employment in downtown business districts."     Consistent

with    the   legislature's   intent,   the   SID   statutes   provide

municipalities with broad discretion when creating SIDs, calling

                                 11                            A-1335-15T1
into question the trial court's narrower reading of the statutes.

See    N.J.S.A.    40:56-65(b)(3).             Moreover,   the     New    Jersey

Constitution      grants    municipalities        broad    discretion:       "The

provisions of this Constitution and of any law concerning municipal

corporations formed for local government, or concerning counties,

shall be liberally construed in their favor."               N.J. Const. art.

IV, § VII, ¶ 11.

       Nothing in the SID statutes specifically prohibits a citywide

SID, provided a municipality can support such a SID with the

specific findings necessary to adopt a SID ordinance, as set forth

at N.J.S.A. 40:56-68.           This standard requires a municipality to

support its determination an area would benefit from being a SID

and services would be provided to benefit individuals within the

SID.    Ibid.

       Rahway   asserts    it    met   these   requirements;     however,    such

evidence is not before this court, and the trial court did not

reach this issue.     Nevertheless, we are able and do find there is

no prohibition against a municipality adopting a citywide SID, and

we remand for the trial court to consider the merits of the

Ordinance itself.

       Rahway also argues the trial judge incorrectly concluded the

SID statute does not allow for a noncontiguous SID.                  The trial

judge found, "The legislature's intent should not be misconstrued

                                        12                               A-1335-15T1
to mean that a SID can be created anywhere in a municipality, in

a     noncontiguous    manner,       incorporating     all     commercial     and

industrial property, so long as the entire municipality benefits

from the same."

       N.J.S.A.     40:56-66(b)       allows      exemptions     from   special

assessments on certain properties within the SID.                 This follows

the SID definition, which provides for "an area in which a special

assessment on property within the district shall be imposed."

Ibid. Thus, all properties within a SID are subject to the special

assessment, unless they are subject to a possible exemption.

       Here, the Ordinance included all non-residential and non-

public properties in the city, as well as residential properties

with more than four units.1            Plaintiff argues the exemption of

residential    properties     made    the   SID    "noncontiguous,"     but   the

statute permits these exclusions.                 If the SID is the entire

municipality, the only reason the SID is noncontiguous is its

exclusions.       The court's determination a SID must be contiguous

was    erroneous    because   the    statute      specifically   provides     for

exemptions of some properties within a SID, as the Ordinance did

here.



1
    With the exception of the Merck campus within the city, which
defendants assert is the only location zoned "for research
development."

                                       13                               A-1335-15T1
     Rahway also asserts the trial court erroneously found the SID

statute only permits SIDs in downtown business districts.                        We

agree.    A separate section of the statute authorizes creation of

"downtown business improvement zone[s]."                    N.J.S.A. 40:56-71.1.

Another portion provides, "Any municipality which has adopted or

adopts an ordinance authorizing the establishment of a special

improvement district . . . may, by ordinance, designate all or any

portion   of    that    district     which   contains   primarily     businesses

providing      retail   goods   and    services    as   a    'downtown   business

improvement zone,' . . . ."           N.J.S.A. 40:56-71.2.

     If the legislative intent for the creation of SIDs was to

revitalize only "downtown business districts," the legislature

would    not   have     separately    allowed     for   a    "downtown   business

improvement zone" within a SID.              The plain language of N.J.S.A.

40:56-71.2 is unambiguous.

     Rahway finally argues the trial court improperly found non-

commercial properties are not allowed within a SID. Rahway asserts

the "trial court specifically held Class 4B (Industrial) and Class

4C (Apartments-4 units and over) properties would not 'stand to

benefit in the ways intended by the legislature when enacting the

statute.'"       The trial judge found "residential properties, or

vacant lots, or mixed use properties . . . should be excluded" and



                                        14                                A-1335-15T1
found they "should not be subject to a special assessment for such

improvements and programs."

      Having the discretion to exclude residential properties does

not require a municipality to exclude residential properties from

SIDs.      Nothing in the statutes                mandates these properties be

excluded;    on    the    contrary,         the    statute   provides      that     these

properties "may" be excluded.                N.J.S.A. 40:56-66(b).          Thus, the

judge's findings "[t]he legislature recognized these types of

properties       were    not   the    ones        that   would   benefit    from       SID

improvements" is inconsistent with a plain reading of the statute.

The judge's determination these properties must always be excluded

is unsupported.

      Rahway argues the trial court misconstrued the SID statutes

and     argues    sixty-seven        SIDs     within     nineteen   counties          have

established SIDs with similar characteristics to its own. However,

this evidence was not included in the trial record.                          The only

evidence before the trial court on this point was a map of

Carteret.        Accordingly, we decline to consider the arguments

relating to the content of ordinances from other municipalities.

See R. 2:5-4(a); R. 2:6-1(a).2


2
    Plaintiff argues Rahway violated Rule 2:6-1(a) by failing to
include five certifications in its appendix included in the record
before the trial court and inappropriately included 101 pages in


                                            15                                    A-1335-15T1
     In its cross-appeal, plaintiff argues the Ordinance violated

the constitutional rights of the affected property owners under

the Equal Protection Clause and the Tax Uniformity Clause of the

New Jersey Constitution and seeks counsel fees and litigation

expenses under the New Jersey and Federal Civil Rights Acts.                   We

disagree and affirm the denial of counsel fees.

     Plaintiff relies on Tumpson v. Farina, 218 N.J. 450 (2014).

In Tumpson, the New Jersey Supreme Court found a city clerk had

violated   the    plaintiff's    constitutional      right   when    the   clerk

refused to accept a petition for a referendum for filing, and the

Court   held     the   failure   to   accept   the    petition      violated    a

substantive right protected by the New Jersey Civil Rights Act,

N.J.S.A. 10:6-2(c).        Tumpson, supra, 218 N.J. at 481-86.               The

Tumpson court found a "court may award the prevailing party


its appendix that were not before the trial court.       Rule 2.6-
1(a)(1) provides appellant's appendix must include "such other
parts of the record, excluding the stenographic transcript, as are
essential to the proper consideration of the issues, including
such parts as the appellant should reasonably assume will be relied
upon by the respondent in meeting the issues raised." The failure
to submit the five certifications is not excused by any exception
in Rule 2:6-1. However, plaintiff does not articulate why these
certifications are relevant to our review.      Thus, we need not
consider this particular omission on defendant's part.

     However, plaintiff is correct that defendant's appendix pages
Da241-322 were not included in the record before the trial court;
therefore, we do not consider this evidence on appeal.      See R.
2:5-4(a).


                                      16                                A-1335-15T1
reasonable attorney's fees and costs" under the Civil Rights Act.

Id. at 472 (citing N.J.S.A. 10:6-2(f)).    To establish a violation

of the Civil Rights Act, the affected property owners must prove

(1) "'the Constitution or laws of this State' conferred on them a

substantive right; (2) the [defendants] deprived them of that

right; and (3) the [defendants were] 'acting under color of law'

when [they] did so."    Id. at 473.

     Here, plaintiff has not established any of these elements.

Plaintiff argues the receipt of a tax bill that violated the

enabling statute constitutes a "legal violation," and "at worst

is unconstitutional."   Thus, plaintiff seems to recognize this may

not be a constitutional issue; however, plaintiff does assert,

"property rights are indistinguishable from civil rights" in this

matter, and "the right not to pay a tax . . . has to be viewed as

one of constitutional dimension."     Plaintiff has not established

the substantive right violated by defendants, let alone provide

evidence to support its claim, beyond claiming a parallel to

Tumpson.

     Affirmed in part, vacated in part, and remanded for further

proceedings consistent with this opinion.        We do not retain

jurisdiction.




                                17                          A-1335-15T1
