OWP Ruling 2.26.24

UNN-L-001011-23 02/26/2024 Pg 1 of 25 Trans ID: LCV2024497491
SUPERIOR COURT OF NEW JERSEY

WESTFIELD ADVOCATES FOR LAW DIVISION, UNION COUNTY
RESPONSIBLE DEVELOPMENT, FRANK DOCKET NO.: UNN-L-001011-23
FUSARO, CARLA BONACCI, ALISON
CAREY, WILLIAM FITZPATRICK, and
ANTHONY LAPORTA, CIVIL ACTION
Plaintiffs,
DECISION AND JUDGMENT DISMISSING
v. ACTION WITH PREJUDICE
TOWN OF WESTFIELD,
Defendant, and
SW WESTFIELD LLC,
Intervenor-Defendant.
This matter presents as an action in lieu of prerogative writ pursuant to R. 4:69-1, et seq., filed
by Plaintiff Westfield Advocates for Responsible Development (“WARD”) and five individuals,
Frank Fusaro, Carla Bonacci, Alison Carey, William Fitzpatrick and Anthony LaPorta
(collectively, “Plaintiffs”) 1 challenging the adoption of a Redevelopment Plan (the
“Redevelopment Plan”) by adoption of the Ordinance #2023-03 (the “Ordinance”) by Defendant
Town of Westfield (“Defendant”) as the Governing Body. As set forth in the First Amended
Complaint: “This action is being filed on behalf of the Plaintiffs to challenge the enactment on
February 14, 2023, of Ordinance #2023-03 for Lord and Taylor/Westfield Train Station
Redevelopment Plan.” (Id. at Par 10).
By Consent Order filed May 5, 2023, Intervenor-Defendant SW Westfield LLC (“SW”) was
permitted to intervene as a defendant in this action.
The Court conducted an initial Case Management Conference on August 23, 2023, prior to
which, pursuant to a Clerk Notice and R. 4:69-4, the parties submitted a Joint Statement as to
factual and legal issues, which set forth the respective positions of all parties; Defendants each
submitted separate Statements, and Plaintiffs submitted a Pre Trial Memo. At the CMC on
August 23, 2023, the Court instructed the parties to meet and confer and to report the results to
the Court, which the parties did by letters of September 1, 2023, and supplemented by letters of
September 14, 2023, with substantial disagreement remaining as to the appropriate scope of
exhibits that should be the record for trial.
1
Plaintiff initially filed a Verified Complaint on 3/29/23, and Plaintiff filed an Amended
Complaint that added additional individuals, as resulting in and as reflected in the names set
forth as constituting “Plaintiff” herein.
1
The Court conducted a hearing on the record pursuant to R. 4:69-4 on October 6, 2023. Prior to
that hearing, SW had filed a Motion to Bar to limit the record, which was directed at the parties’
continuing dispute as to the scope of the record for trial, and focusing on a binder of certain
exhibits that Plaintiffs intended to include in the record of this action, and SW and Defendant
opposed same, inter alia, as being outside the scope of the record before the Governing Body.2
On the record on October 6, 2023, the Court directed that parties to meet and confer as to
stipulating where appropriate and possible as to “Joint Exhibits” or Stipulations of Fact,
reserving rights as to matters upon which the parties disagreed. At the October 6, 2023 hearing,
the Court denied the Motion to Bar without prejudice and instructed the parties that any
applications to limit the record or strike/bar proposed exhibits would be heard at trial. The
Court’s October 6, 2023 Order also adjourned and continued the R.4:69-4 hearing to October 12,
2023 and directed Plaintiffs to have all their individual clients present. The October 6, 2023
Order also set a briefing schedule, adopting same as set forth in counsel’s Joint Letter of August
18, 2023: Plaintiff’s Trial Brief due on October 18, 2023; Defendants Opposition Trial Brief due
on November 17, 2023; and Plaintiff’s Reply Trial Brief due on November 30, 2023.
At all times relevant herein, the parties stipulated that no discovery or witnesses were necessary
for this matter, and that the trial would be limited to oral arguments of counsel following
submission of trial briefs. The briefing schedule was agreed upon by counsel and memorialized
by the Court as indicated above.
The Court conducted the October 12, 2023 R. 4:69-4 continued hearing and instructed counsel to
meet and confer in the courtroom so as to attempt to focus the record for trial. The parties
continued to meet and confer, and the Court adjourned the hearing after instructing the parties to
submit any Stipulations.
By letter of October 17, 2023, Plaintiffs submitted a Joint letter providing a Joint Exhibit List
and Stipulations.
A trial date was scheduled for January 26, 2024 at 10:00 a.m.
2
Plaintiffs’ September 28. 2023 Brief in Opposition to the Motion to Bar contended that SX’s
Motion to Bar was “procedurally improper, and was actual a motion in limine to exclude exhibits
from trial. Id. at 2. As indicated above, and on the record, the Court denied the motion without
prejudice and held that the issues as to “limiting the record” or “barring/excluding” any of
Plaintiffs’ proposed and disputed exhibits would be heard at trial. Thus, Plaintiffs, themselves,
argued that the issue of settling the record as to requesting the Court to decide as to whether any
of Plaintiffs’ exhibits should be excluded should be postponed until trial, instead of being heard
before trial. The record demonstrates that all trial briefs were submitted after the October 6,
2023 Order, and thus all the trial briefs were submitted on notice and opportunity to address
appropriate arguments that would be addressed at trial. Specifically, all parties had notice and
opportunity that the January 26, 2023 trial would address all arguments regarding exclusion of
any proposed and disputed Plaintiffs’ exhibits, before commencing the oral argument that was
stipulated as being the form of hearing, i.e., the trial was stipulated as being limited to trial briefs
and oral argument.
2
The parties submitted all trial briefs, timely, consistent with the October 6, 2023 Order:
Plaintiffs’ initial Brief on October 18, 2023; Defendants’ opposition Brief(s) on November 17,
2023; and Plaintiffs’ Reply on November 30, 2023.
Three days before the trial, Defendant SX submitted a January 23. 2024 Sur-Reply Trial Brief.
Subsequently, Plaintiffs submitted a letter on January 23, 2023 stating:
We are in receipt of a letter dated January 23, 2024 by Counsel for Defendants
Westfield, LLC. This letter was not solicited by the Court pursuant to the overall
management of this case. Accordingly, we will be prepared to respond to the
contents of this letter at the upcoming hearing on Friday at the pleasure of the
Court.
Id. By Clerk Notice of January 25, 2024, the Court gave permission and instructed Plaintiffs to
submit a further brief in response (Sur-Rebuttal) to SX’s January 23, 2024 Sur-Reply by Noon on
January 26, 2024, and the Court adjourned the trial from 10:00 a.m. to 1:30 p.m. to allow for
Plaintiffs’ submission and appropriate opportunity for same to be reviewed by the parties and the
Court in advance of trial.
Plaintiffs submitted their Sur-Reply on January 26, 2024 prior to Noon.
The trial was conducted on January 26, 2024 at 1:30 p.m.
In addition to the trial briefs identified and discussed above, the record for the trial included the
following Stipulations and Joint Exhibits List:3
STIPULATIONS
1. Plaintiff, Westfield Advocates for Responsible Development (“Westfield Advocates”)
is a New Jersey nonprofit corporation, and, during all times relevant to this Complaint,
maintains a mailing address of PO Box 2595, Westfield, New Jersey 07091 and is duly
registered at 777 Walnut Avenue, Cranford, New Jersey 07016.
2. Plaintiff, Frank Fusaro (“Fusaro”) is an officer of Westfield Advocates and resides at

422 Stanley Avenue, Westfield, New Jersey 07090.
3. Plaintiff, Carla Bonacci (“Bonacci”) is an officer of Westfield Advocates and resides at

603 Lawrence Avenue, Westfield, New Jersey 07090.
4. Plaintiff, Alison Carey (“Carey”) is an officer of Westfield Advocates and resides at

408 East Dudley Avenue, Westfield, New Jersey 07090.
5. Plaintiff, William Fitzpatrick (“Fitzpatrick”) is a member of Westfield Advocates and

resides at 408 Birch Place, Westfield, New Jersey 07090.
3
See discussion below addressing SX’s motion to limit the record, and/or the Court’s exclusion
of Plaintiffs’ proposed exhibits.
3
6. Plaintiff, Anthony LaPorta (“LaPorta”) is a member of Westfield Advocates and resides

at 409 North Chestnut Street, Westfield, New Jersey 07090.
7. Defendant, Town of Westfield (“Westfield” or “Town”) is a municipal corporation and

public entity established pursuant to the Laws of the State of New Jersey with offices
located at 425 East Broad Street, Westfield, NJ 07090.
8. Intervenor-Defendant SW Westfield LLC (“SW”) is the designated Redeveloper of the

Lord and Taylor/Train Station Redevelopment project that is the subject of this litigation.
9. The Town of Westfield Planning Board (the “Planning Board”) is a government body
independent from the Town and is not a named party to this action.
The Redevelopment Plan

10. Pursuant to Local Redevelopment and Housing Law, N.J.S.A 40:A-12A-1, et seq.
(“Redevelopment Law”), the Town is authorized to designate areas within the boundaries
of the Town as being in need of redevelopment, rehabilitation, or both.
11. On March 10, 2020, the Town’s governing body adopted Resolution 77-2020,
directing the Planning Board to make recommendations as to whether certain properties,
commonly known as the seven parking lot parcels and train station parcels, should be
designated as a non-condemnation area in need of redevelopment.
12. On June 30, 2020, the Town’s governing body adopted Resolution No. 145-2020,
which designated the following parcels as non-condemnation areas in need of
redevelopment: Block 3101, Lot 5, and Block 3103, Lot 7.
13. On August 11, 2020, the Town’s governing body adopted Resolution No. 180-2020,
which designated the following parcels as non-condemnation areas in need of
redevelopment: Block 2502, Lot 14; Block 2506, Lot 1; and Block 2508, Lot 11.
14. On October 13, 2020, the Town’s governing body adopted Resolution No. 225-2020,
which designated the entirety of the Town as an area in need of rehabilitation, and
included certain properties owned by the Town designated as : Block 2507, Lot 1; Block
2508, Lot 12; Block 2509, Lot 1; Block 3101, Lot 1; Block 3102, Lot 1; Block 3103, Lots
1 and 6; Block 3103, Lot 12; and Block 3106, Lot 5.
15. Block 3106, Lot 5 is not part of the Redevelopment Plan, but serves as a “Preview
Center” for the public to view and obtain information related to the proposed
redevelopment.
16. The parcels identified in Paragraphs 12, 13, and 14 shall be referred to collectively as
the “Redevelopment Area” at issue in this matter.
17. On January 26, 2023, Topology NJ, LLC, prepared and submitted a
redevelopment plan for the Redevelopment Area entitled “Lord & Taylor/ Train Station
4
Redevelopment Plan” dated January 26, 2023 (“Redevelopment Plan”) to the Town’s
governing body.
18. On January 31, 2023, the Town’s governing body introduced Ordinance 2023-03 to
adopt the Redevelopment Plan. After the introduction of Ordinance 2023-03, the
Ordinance and the Redevelopment Plan was referred to the Planning Board for its review
and recommendations pursuant to the Local Redevelopment and Housing Law, N.J.S.A.
40A:12A-1 et seq. Topology made a presentation at that meeting.
19. On February 6, 2023, the Planning Board considered the Redevelopment Plan at its
public meeting of that same date.
20. On or about February 9, 2023, the Planning Board sent a Memorandum dated
February 9, 2023 to the Town’s governing body stating that the Redevelopment Plan was
consistent with the Town’s Master Plan.
21. On February 14, 2023, the Town adopted Ordinance 2023-03, thereby approving the
Redevelopment Plan.
22. Notice of Adoption of this Ordinance was published in the Westfield Leader on
February 16, 2023.
JOINT EXHIBIT LIST4
1. “Lord & Taylor / Train Station Redevelopment Plan,” prepared by Topology NJ,
LLC, dated January 26, 2023.
2. Topology presentation during the regular meeting of the Governing Body of the
Town of Westfield, dated January 31, 2023.
3. Transcript of the January 31, 2023 regular meeting of the Governing Body of the
Town of Westfield.
4. Minutes of the January 31, 2023 regular meeting of the Governing Body of the
Town of Westfield.
5. Report of the Town of Westfield Planning Board to the Governing Body of the
Town of Westfield, dated February 9, 2023.
6. Transcript of the February 14, 2023 regular meeting of Governing Body of the
Town of Westfield.
4
The record demonstrates that the parties stipulated that the Joint Exhibits were the full record
before the Governing Body in connection with the adoption of the Ordinance at issue herein.
5
7. Minutes of the February 14, 2023 regular meeting of the Governing Body of the
Town of Westfield.
8. Township of Westfield General Ordinance 2023-03, dated February 14, 2023.
9. Notice of publication of the adoption of General Ordinance 2023-03 in the

Westfield Leader, dated February 16, 2023.
The trial began on January 26, 2024 at 1:30 p.m. with the Court first addressing the pending
issue as to the record for the trial, specifically, whether any, some, or all of Plaintiffs’ proposed
exhibits (P1 through P 29), as set forth in Plaintiffs’ September 20, 2023 Pre Trial Memorandum
would be admissible at trial.5 The record demonstrates that Plaintiffs had objected to the Court
deciding Defendant Intervenor SW’s Motion to Bar, which, if heard several weeks prior to trial,
and prior to the submission of trial briefs, would have resolved the issue such that the record
would have been certain and fixed for purposes of the trial briefs and oral argument. However,
the Court’s denial of that motion was consistent with Plaintiffs’ objections, and as such the issues
as to addressing Defendant-Intervenor’s Motion were open until trial. Thus, as a matter of
record, all exhibits that any party intended to be used at trial, whether included as Joint Exhibits
or any of Plaintiffs’ proposed and disputed exhibits, had to be included in the trial briefs as the
trial briefs and oral arguments highlighting the arguments in the trial briefs were the stipulated
form, scope and content of the record for the trial.
Plaintiffs’ trial briefs failed to address or even mention any of Plaintiffs’ proposed, disputed
exhibits, except P-5, the February 6, 2023 Memo from Plaintiff WARE to the Westfield Planning
Board and P-25, AKRF Westfield Redevelopment Economic and Fiscal Benefits Study, dated
January 27, 2023. Thus, by failing to use, reference or argue from any of the other “P” exhibits,
the Court held for the reasons set forth on the record on January that Plaintiffs effectively waived
the right to use them “at trial,” where the “trial” consisted—by stipulation--solely of trial briefs
and oral arguments from the trial briefs. And here, where Plaintiffs had objected to Defendant-
Intervenor SW’s Motion to Bar being heard by the Court several weeks before trial and before
any trial briefs were due, which would have settled the record sooner for Plaintiffs and all
parties, and where the Court afforded Plaintiffs the right to submit a “Sur-Rebuttal” that
provided Plaintiffs an opportunity could have addressed this very waiver issue, which was
specifically raised in Defendants’ trial briefs—specifically, the opposition trial brief of Defendant
Intervenor SX (at 42)—to which Plaintiffs had the right to submit a reply, and did submit a
Reply, but which failed to address this issue-- and the Sur-Reply of Defendant-Intervenor SW (at
5)—and Plaintiffs’ Sur-Rebuttal similarly failed to address this issue.
At the outset of trial, which starting time had been adjourned from 10am to 1:30 pm to allow
Plaintiffs’ submission of their Sur-Rebuttal by Noon, the Court addressed the issue of the record
of exhibits for the instant trial, as discussed above. Plaintiffs clarified their position as to the
5
Certain of Plaintiffs’ proposed exhibits were admitted as part of the Joint Exhibits (P1, 2, 3,
4,11, 12 and 14) and certain were withdrawn (P24, 27 and 28) as a result of the parties’ meet and
confer efforts. (See SX letter of September 1, 2023 and Plaintiff’s September 28, 2023 Brief in
Opposition to Motion to Bar at 12).
6
“Handbook” referenced in its Reply, and as such it was withdrawn as a requested exhibit.
Plaintiffs also withdrew their request for P-25 and P-16.
After further argument by all parties, and also Plaintiffs’ informal motion for reconsideration
after the Court made its findings, for the reasons set forth on the record on January 26, 2024,
including as set forth above, the Court barred any and all “P” exhibits, including but not limited
to P-5, and limited the record to the Stipulations and the Joint Exhibits submitted by counsel.
Fundamentally, as set forth in the Court’s findings to bar Plaintiffs’ proposed exhibits, “[t]he
record below is controlling[.]” Id.; see also Rivkin v. Dover Tp. Rent Leveling Bd.,
277 N.J. Super. 559, 569 (App. Div. 1994), aff’d, 143 N.J. 352, cert. den., 519 U.S. 911
(1996). at 569 (“In New Jersey, the actions of municipal agencies are subject to review in the
Superior Court, Law Division, in an action in lieu of prerogative writs. The trial court's review of
the agency action is based on the record below[.]” (citations omitted)). Further, where, as here,
the Plaintiffs Complaint challenges a redevelopment plan, “there ordinarily is no administrative
record other than whatever report the planning board may have submitted to the governing
body and a transcript of the quasi-legislative hearing before the governing body.” Hirth,
337 N.J. Super. at 165 (emphasis added). Thus, as set forth on the record on January 26, 2024,
the record was limited to the Joint Exhibits, which were the full record of the Governing Body’s
decision.
In response to additional issues raised by Defendants regarding the scope of issues and exhibits
in the record of trial, Plaintiffs agreed that they are not seeking to invalidate the 2020
Designations.
For purposes of trial, the Complaint (and Amended Complaint) alleges that the Town’s adoption
of the Ordinance was “arbitrary, capricious, and unreasonable, ultra vires and against the weight
of the evidence present before it and the Redevelopment Plan must be reversed.” (Amended
Compl. ¶26). The Amended Complaint further avers that Westfield, “through its professionals,
failed to utilize competent and credible data regarding the Redevelopment Plan through
Ordinance #2023-03 especially with respect to the projections of the costs and revenues which
were not based upon accurate or reliable data gathered after the impact of COVID economic
disruptions” (Id. at ¶24). It further avers that the Town “failed to adequately consider the
economic impact, excess density, traffic, parking, costs and environmental impacts of the
development being permitted through the adoption of the Redevelopment Plan.” (Id. at ¶25. )
7
Factual and Procedural History 6
Pursuant to Local Redevelopment and Housing Law, N.J.S.A 40A:12A-1 to -49

(“Redevelopment Law” or “LRHL”), the Town is authorized to designate areas within its
boundaries as being in need of redevelopment, rehabilitation, or both. Joint Stipulated Facts
(“Stip.”) 10.
In 2020, the Governing Body, an elected body, designated the properties at issue in this
lawsuit as either properties in need of redevelopment or properties in need of rehabilitation. On
March 10, 2020, the Governing Body adopted Resolution 77-2020, directing the Town’s
Planning Board to make recommendations as to whether certain properties, commonly known as
the seven parking lot parcels and train station parcels, should be designated as a non-
condemnation area in need of redevelopment. Stip. 11.
On June 30, 2020, the Governing Body adopted Resolution No. 145-2020, which designated the
following parcels as areas in need of redevelopment: Block 3101, Lot 5, and Block 3103, Lot 7
(the “Train Station Redevelopment Lots”). Stip. 12.
On August 11, 2020, the Governing Body adopted Resolution No. 180-2020, which designated
the following parcels as areas in need of redevelopment: Block 2502, Lot 14; Block 2506, Lot 1;
and Block 2508, Lot 11 (the “Lord & Taylor Redevelopment Lots”). Stip. 14.
On October 13, 2020, the Governing Body adopted Resolution No. 225-2020, which
designated certain properties owned by the Town as areas in need of rehabilitation. These
designated properties were: Block 2507, Lot 1; Block 2508, Lot 12; Block 2509, Lot 1; Block
3101, Lot 1; Block 3102, Lot 1; Block 3103, Lots 1 and 6; Block 3103, Lot 12; and Block 3106,
Lot 51 (the “Overlay Properties,” together with the Train Station Redevelopment Lots and Lord
& Taylor Redevelopment Lots, the “Redevelopment Area”). Stips. 14, 16.
None of Plaintiffs reside or claim to own any property in the Redevelopment Area. Stip. 1-6.
In June 2021, the Westfield Planning Board modified and updated the Unified Land Use
and Circulation Element of the Master Plan (the “ULUC” or “Master Plan”). J-1 at 119.
The Master Plan included its vision for downtown Westfield: Downtown Westfield serves as the
heartbeat of the community’s commercial and social activities. It continues to be envisioned as a
6
Plaintiffs’ October 18, 2023 Trial Brief (“Pls’ Tr. Brf.”) includes a Statement of Facts that does
not reference specific supporting citations to the record from the Joint Exhibits or the
Stipulations. In contrast, the Trial Brief (opposition) of Defendant-Intervenor SW includes a
Statement of Facts and Procedural History that provides specific citations to the record (Joint
Exhibits and Stipulations). Defendant-Intervenor’s Opposition, for the most part, does not
contradict, but simply expands with more detail and additional facts, upon Plaintiffs’ Statement
of Facts as set forth herein.
8
pedestrian-oriented and mixed-use center; it will offer a variety of housing choices, retail
environments, and traditional and nontraditional office employment opportunities. New
development will preserve and celebrate the Town’s history and architecture and
provide housing and destinations for shopping and services, all within an environment of tree-
lined streets, pedestrian parks, and plazas. Westfield cherishes its heritage, while taking full
advantage of new technologies and innovations. A visually enhanced streetscape with wide
sidewalks, pedestrian and bike facilities will provide safe connectivity throughout downtown, on
North and South Avenue, and provide linkages to its neighborhoods. J-1 at 119.
On January 26, 2023, Topology NJ, LLC (“Topology”) prepared and submitted to the
Governing Body a redevelopment plan for the Redevelopment Area entitled “Lord &
Taylor/Train Station Redevelopment Plan” (“Redevelopment Plan”). Stip. 17. Topology was
hired by the Town as its Redevelopment Planner. J-4 at 8. The Redevelopment Plan incorporated
public input and sets forth “a series of new solutions to help keep Downtown Westfield vibrant
and relevant for future generations” by reimagining “three critical areas in and around downtown
that will contribute to the continued vitality of the community.” J-1 at 1.
The Redevelopment Plan outlines the background leading to its issuance, including the
designation of the Redevelopment Area and the conditional designation of SW as the proposed
redeveloper. J-1 at 1. SW was ultimately designated as the Redeveloper for this project. Stip. at
8. SW is associated with one of the redevelopment properties that is the site of a long shuttered
Lord & Taylor store. J-1 at 1.
The Redevelopment Plan was intended to be prepared with scrupulous adherence to both the
vision and details set forth in the Master Plan that was designed to enhance the Town and
preserve the past and pave the way for the future. J-1 at 2, 119-130.
The Redevelopment Plan outlines its goals and objectives as follows:
• Promote a development program that will maintain and enhance the orientation of
downtown as the center of Westfield and support the long-term economic
wellbeing of the Town.
• Create new open spaces for residents and visitors to enjoy.
• Promote a multi-modal transportation network that is safe and accessible,
connects to local and regional networks, and considers neighborhood impacts.
• Give special attention to aesthetic concerns to ensure that development is
attractive and reflective of the best of what Westfield has to offer.
• Provide a diverse set of housing options.
• Encourage sustainable practices that promote equity, environmental health, and
economic prosperity.
J-1 at 2-3.
The Redevelopment Plan also applies “the guiding principles set forth in the Town’s
Master Plan, to contribute to a thriving and accessible core.” J-1 at 9.
9
The Redevelopment Plan details the permitted uses, heights, building setbacks, and other
criteria for the Redevelopment Area. J-1 at 18-57.
It also provides criteria for public spaces, addresses circulation, public parking and
administration. J-1 at 85-118. The Redevelopment Plan includes charts, graphs, renderings, and
photographs illustrating the requirements of all aspects of any development. It is a detailed and
well-reasoned plan that is the result of substantial expert analysis, research, and public input. See
generally J-1.
Section 9.1 of the Redevelopment Plan sets forth the following detailed examination of its
attempt to be consistent with the Master Plan. J-1 at 119-130.
At its regularly scheduled meeting on January 31, 2023, the Governing Body introduced
and provided the first reading of the Ordinance to adopt the Redevelopment Plan (the “First
Reading”). Stip. 18.
At the opening of the meeting, the Mayor introduced the procedures for the meeting as follows:
On a very different note, I do want to talk a little bit about tonight’s

procedures for the meeting. Just that we have a large amount of
public interest in the One Westfield Place proposal. We’re first going
to hear a presentation by Town Planner Don Sammet and Chris
Colley of Topology, our redevelopment planning firm, to go through
an overview of the redevelopment plan that is on tonight’s agenda.
Because there was some frustration voiced at the last meeting with
the sequence of the agenda, I do want to remind everyone that this
presentation, like last week’s, is being delivered to the elected
officials tonight which is the appropriate forum for us to hear the
information and ask questions of our experts in a public setting
before we vote on this item, just as we’ve done with other
redevelopment proposals in recent years. Not only is this an
important part of the public hearing process, it’s very important that
these presentations are included in the public record.
So, public comment will follow the presentation and then the
legislative portion of the meeting will get underway. I recognize that
waiting to speak until late hours on a week night can be frustrating
but know that we are committed to hearing everyone’s feedback who
has taken the time to come out and share it with us tonight.
(J-3, Tr. at 4:1-5:2; see also J-4, Minutes, at 2).
Donald Sammet, PP/AICP, the Town Planner, made a presentation to the Governing Body.
J-3 at 6:15-14:13; J-4 at 3-6.
10
Mr. Sammet explained that the Master Plan functioned as the “development roadmap” for
Westfield and that the Redevelopment Plan under consideration was consistent with the Master
Plan.5 J-3 at 13:4-10; J-4 at 5-6. Mr. Sammet elaborated that the ULUC “talks about the use of
design guidelines to ensure consistency with [the] existing character of our community,” which
includes items such as setbacks, creation of public spaces and public plazas, locating offices and
residential uses and other development-related parameters. J-3 at 12:20-13:3; J-4 at 5.
Mr. Sammet noted that “[i]n the Redevelopment Plan document there is an entire chapter
showing how the plan is consistent with the town Master Plan.” J-4 at 6; see also J-1 at Section
9.1.
The next person to present was Chris Colley of Topology. J-3 at 14:20; J-4. at 6-8.
Mr. Colley introduced his firm as an urban planning firm that had provided redevelopment and
municipal planning services for a number of communities throughout New Jersey. J-3 at 14:24-
15:8; J-4 at 8.
Mr. Colley clarified that Topology was hired by the Town as its Redevelopment
Planner to represent the Town, did not represent the developer, and that the Redevelopment Plan
“is a plan by the Town for the Town.” J-3 at 15:3-8; J-4 at 8.
Mr. Colley utilized a very detailed presentation to outline the Redevelopment Plan. J-2. He
provided some background leading up to the preparation of the Redevelopment Plan, which
included a description of the properties involved, as well as the purpose of a Redevelopment
Plan. J-3 at 15:9-16:5; J-4 at 9; J-2 at 8.
Mr. Colley explained what a Redevelopment Plan is and is not:
So, in its simplest terms, a redevelopment plan is a zoning ordinance

that applies to a targeted area. The reason why we do a
redevelopment plan instead of just a traditional zoning ordinance is
it allows us to focus in on specific sites, if eligible, and to be very
detailed about the types of building that will happen there and the
public improvements that will be associated with that building.
It’s also important for us to understand what a redevelopment plan

is not and what's not being voted on this evening or with this
ordinance generally. A redevelopment plan is not a final design of a
building. It’s a set of parameters that governs general minimums,
maximums and design standards for a site or sites.
It’s also not a financial agreement. What the counsel is considering

is not a PILOT, not a financial agreement, not a collection of
commitments. Those things are part of a subsequent step in the
redevelopment process. I won’t walk through these components in
detail, but I just want to make sure that everybody is clear on is that
11
while the redevelopment plan is going to set land uses, bulk

standards, public improvements and things of that nature, the project
would continue to evolve, if it moves forward, and there would
continue to be more detailed design information, design decisions,
commitments, timelines, things of that nature, and those ultimately
happen in the redevelopment agreement, or at the site plan approval
process.
J-3 at 16:9-17:14; see also J-4 at 10.
Mr. Colley provided a chart graphically explaining the Redevelopment Process from the
Master Plan through Site Plan Approval and highlighting that the process was at the
Redevelopment Plan phase with more specific steps in the future.[chart included by reference].
J-4 at 10; J-2 at 9.
Mr. Colley also provided another chart depicting the background leading up to the
introduction of the Redevelopment Plan. [chart included by reference].J-4 at 11; J-2 at 11.
Mr. Colley explained that the Redevelopment Plan included a number of features to
enhance Westfield’s downtown area. The “key” outcomes for the Redevelopment Plan included
creating public spaces, housing opportunities, economic activity, employment opportunities,
sidewalk improvements and streetscapes, safer and more functional interactions, modern parking
facilities, and building and site design. J-3 at 20:17-21:21; J-4 at 12-14.
The Redevelopment Plan had opportunities for residential, retail, restaurant/bar, office and
medical office space, as well as plans for parking, public spaces, and landscaping. Id.
Mr. Colley then went through each of the specific zones of the Redevelopment Area and
provided extraordinary detail as to how each was consistent with the Master Plan and its
recommendations. J-3 at 22:4-65:1; J-4 at 15-43; J-2 at 16-57.
The presentation also addressed building design, parking, sidewalks and streetscapes, traffic, and
other aspects of the Redevelopment Plan, responding to inquiries from the Governing Body
members and demonstrating how they were consistent with the Master Plan. J-3 at 38:11-62:7; J-
4 at 35-44.
Following his presentation, Mr. Colley responded to additional questions from members of
the Governing Body. J-3 at 61:11-65:4; J-4 at 45-48.
Thereafter, forty-five (45) members of the public expressed their comments and opinions
regarding the Redevelopment Plan, which, ranged from support to criticism with variations in
between. J-3 at 65:21-188:25; J-4 at 50-92.
One resident, who supported the Redevelopment Plan, insightfully observed that
“responsible development” can mean different things to different people, which is the purpose
served by the elected Governing Body:
12
I’ve heard many people say that [they are] for responsible
development, well, that’s pretty subjective. If I asked 100 people
here tonight what that means, I’d get a hundred different answers.
Twenty five residential units, fifty, two fifty, age restricted or not,
how many of each? Fifty thousand square feet of Class A office
space, two hundred and fifty thousand square feet? What’s the right
number? What’s the mix? Thankfully, that’s why we have an elected
town government. They run on an agenda, people vote, then those
elected to make these decisions. They take in all the information
from experts and professionals, which you’ve heard here tonight,
analyze the options, and make the best decision based on that
information. It could not be done any other way. Representative
democracy is administered by the officials elected by the largest,
not the loudest, block of voters.
J-3 at 68:1-18; J-4 at 51 (emphasis added).
Following the public comment portion of the meeting, one member of the Governing Body
highlighted the “enormous effort” to make information available to the public and the panels of
experts who had been working diligently in preparing the Redevelopment Plan. J-3 at 190:1-14;
J-4 at 80.
The member explained that the Governing Body was voting on the “Redevelopment Plan
so that the Planning Board can review it against the Master Plan.” J-3 at 190:20-22; see also J-4
at 82; J-3 at 203:11-15. She further clarified that the “Redevelopment Plan is not the document
for the financial information.” J-3 at 191:13-14; J-4 at 82.
It was also reiterated that financial issues would be addressed separately and were not part of the
Ordinance under consideration and that a financial plan or a Redevelopment Agreement would
be addressed later in the process. J-3 at 191:11-192:23 & 203:15-18; J-4 at 82.
The Governing Body introduced the Ordinance by a vote of 7-1, with one Councilmember
absent. J-3 at 205:23-207:3; J-4 at 89.
After the introduction and approval of the Ordinance, the Ordinance and the Redevelopment Plan
were referred to the Planning Board for its review and recommendations pursuant to Section 7(e)
of the LRHL. Stip. 18; N.J.S.A. 40A:12A-7(e).
Following the referral from the Governing Body, the Planning Board conducted its
consistency review pursuant to the requirements of Section 7(e) of the LRHL during its regular
meeting on February 6, 2023. Stip. 19; J-5.
Mr. Colley, as noted, a licensed professional planner at Topology, was present at the Planning
Board meeting, and his comments “included a comprehensive discussion regarding the Plan’s
consistency with the town Master Plan and detailed explanation underlying his conclusion – set
13
forth in detail in Section 9.1 of the [Redevelopment] Plan – that the [Redevelopment] Plan was
consistent with the Master Plan.” J-5.
Mr. Sammet, the Town Planner, was also present and advised that he agreed with Mr. Colley’s
analysis and his conclusion that the Redevelopment Plan was consistent with the Master Plan. J-
5.
The Planning Board noted that it “heard and considered extensive comments from members of
the Westfield Advocates for Responsible Development and several other members of the
public.” J-5.
The Planning Board Report stated that a 38-page memorandum prepared by Westfield Advocates
for Responsible Development (“WARD”) was read during the meeting and considered
by the Planning Board. J-5. (See also Pls. Tr. Brf. at 7, No. 10).
After hearing from Messrs. Colley and Sammet and the public comments and discussing
the Redevelopment Plan, the Planning Board “did not identify any provisions in the
[Redevelopment] Plan which were inconsistent with the Master Plan.” J-5.
The Planning Board voted to adopt Topology’s conclusions set forth in Chapter 9 of the
Redevelopment Plan, find that the Redevelopment Plan was consistent with the Master Plan, and
recommend adoption of the Redevelopment Plan by the Governing Body with no changes. J-5.
On February 9, 2023, the Planning Board submitted its Report to the Mayor and Governing Body
following its consistency review of the Redevelopment Plan in accordance with Section 7 of the
LRHL. Stip. 20; J-5. (See also Pls. Tr. Brf. at 7, No. 12).
After setting forth the above, the Planning Board repeated in its Report that it “did not identify
any provisions in the [Redevelopment] Plan which were inconsistent with the Master Plan nor
did the [Planning] Board make any recommended revisions to the [Redevelopment] Plan to the
Town Council.” J-5.
Accordingly, the Planning Board Report confirmed its “recommendation that the
[Redevelopment] Plan is consistent with the Master Plan and should be adopted by the Town
Council.” Id. (See also Pls. Tr. Brf at 7, No. 12).
At its regularly scheduled meeting on February 14, 2023, the Governing Body conducted
a Second Reading of the Ordinance to adopt the Redevelopment Plan, along with comment and
questions during the public hearing on the Ordinance (the “Second Reading”). J-6, J-7. (See also
Pls. Tr. Brf at 8, No. 13).
In her opening remarks, the Mayor recounted how the One Westfield Place proposal, the
provisional name given to the project, was the “culmination of four years of planning and
collaboration” with input from numerous community groups and the proposed redeveloper, SW.
J-6 at 4:17-20.
14
The Mayor noted that “[t]here is no such thing as a perfect project, but we have strived to find a
balanced proposal that addressed long-standing challenges that have gone ignored for decades
while mitigating any potential negative impacts.” J-6 at 6:3-7.
Members of the public were given the opportunity to present their views on the development. J-6
at 11-57.
Westfield’s consultants, planners, and officials addressed those comments in some detail in
addressing the rationale and support for the Redevelopment Plan. J-6 at 58-109.
The Mayor reviewed the meeting procedures for considering adopting the Ordinance:
The ordinance related to the One Westfield Place that we are voting
on tonight is for final adoption of a Redevelopment Plan. As with
any ordinance on second reading, we are required to hold a public
hearing on the ordinance, with discussion and questions limited to
its relevant specifics. So, in this case the RDP is a zoning ordinance,
and comments should be related to topics it encompasses such as
height, density, massing etcetera. The Redevelopment Plan does not
cover issues such as the approval process, finance details, PILOTs,
referenda, etcetera, and those comments should be reserved for the
standard public comment period that will come later in this meeting.
J-6 at 8:16-9:3.
The Mayor further explained that “the Redevelopment Plan is by no means the
final step in this process,” and that if approved, “many of the specific details will then be ironed
out when the project is submitted for site plan approval at the Planning Board later this year.” J-6
at 8:3-8.
During the public comment portion of the meeting, members of the public provided
comments regarding the Redevelopment Plan. As during the First Reading, the public comments
represented a wide range of opinions, including those commenting on the public input into the
Redevelopment Plan. See, e.g., J-6 at 33:2-5
One Resident stated: “Without reservation I am in favor of this redevelopment plan as it is.
Regarding community input no one can deny there was a tremendous amount of civic
engagement and openness.”).
Another resident who spoke, Allison Carey, an individual Plaintiff and member of WARD,
correctly identified the Governing Body’s role as being to make sure the Redevelopment Plan is
“consistent with the Master Plan.” J-6 at 23:11-12, 23:17-19, 37:8-14.
Before ultimately voting to approve the Ordinance, the members of the Governing Body
pointed to the importance of their vote as representing the wishes of their particular districts after
15
reaching out to the residents they represent. J-6 at 58:24-59:6; 91:18-92:3; 106:22–107:11.
As one councilmember noted, one of the reasons for her approval of the Ordinance was:
[T]he overwhelming support for this project that I have heard over
and over from my constituents. . . . It’s hard for you to see all the -
emails and all the phone calls and all of the people who stop me in
the streets to tell me about their support, the phone calls that I got
on my way to this meeting tonight. But I will tell you that I take my
decision making as an elected official quite seriously. And so when
I’m saying that I’m voting tonight on behalf of the ward I mean that.
And so tonight I’m voting yes.
J-6 at 95:2-15.
The Governing Body also pointed to the opportunity to work with SW, which as a property
owner in the downtown, evidenced a “commitment to building something that’s economically
sustainable and carefully woven into our community, not creating a new one.” J-6 at 94:11-15.
The Mayor addressed a comment explaining why the Planning Board was in the best
position to determine the consistency of Redevelopment Plan with the Master Plan:
[T]his Master Plan is the Planning Board’s document. And so it’s

important to understand that the people on the Planning Board are
the ones that were actually instrumental in creating and adopting it.
So, there’s no group more intimately familiar with the Master Plan
than the Planning Board.
And I also want to acknowledge the level of professionals that our

Town should be very proud that represent us on the Planning Board.
We have architects, we have a land use attorney, we have three
professional planners, we have an engineer, our Fire Chief, and
certain Councilman Dardia and myself and others. It is a highly
professional group of people who do this for a living and are being
generous enough with their volunteer service to work on behalf of
the Town. So, if they weren’t asking questions it’s not because they
didn’t understand. It’s because they absolutely do understand. And I
just want to be very clear about that and that the Town should have
full confidence in this group of professionals that have been together
working on this Master Plan since it began in 2018.
J-6 at 90:11-91:6; see also J-6 at 102:3-7 (Mayor commenting on Planning Board finding that
Redevelopment Plan “aligned with our master plan”).
Mr. Colley addressed comments and, again, explained in some detail how the
16
Redevelopment Plan was consistent with the Master Plan. See J-6 at 67:10-71:16; 84:23-24
(traffic engineer finding same).
Mr. Sammet, the Town Planner who was involved in the ULUC, as well as the Redevelopment
Plan, further explained the consistencies between the two, specifically noting that Chapter 9 of
the Redevelopment Plan “goes into great detail describing that consistency with the vision
statement, with guiding principles, with the Community Form section for each sub
area that’s part of this Redevelopment Plan.” J-6 at 86:9-88:31 (finding consistency even after
reviewing WARD memo).
The members of the Governing Body stated the rationale for their approval, showed great respect
for various viewpoints, and noted that public feedback had “already been incorporated in the
Redevelopment Plan….” J-6 at 59:14-66:7; 91:23-92:3; 94:6-95:15; 98:1-99:24.
Subsequent to all of the foregoing, on February 14, 2023, the Town adopted the Ordinance, by a
vote of 7-1, thereby approving the Redevelopment Plan. Stip. 21; J-6 at 109:15-110:6.
The Ordinance attached the Redevelopment Plan as Exhibit A thereto, which contained a revised
zoning map of the Superseding and Overlay Elements. J-8 at Ex. A at p.4-5 & Sections 8.18 &
8.21.
Notice of the Adoption of the Ordinance was published in the Westfield Leader on February 16,
2023. Stip. 22. (See also Pls. Tr. Brf at 8, No. 14).
On March 29, 2023, Plaintiff WARD along with three individuals filed a Complaint in Lieu
of Prerogative Writs against Westfield to invalidate its adoption of the Ordinance. Compl. ¶24.
On May 3, 2023, Plaintiffs filed an Amended Complaint (the “Complaint”) that added two
individual Plaintiffs, but did not otherwise substantively amend their claims. The Complaint does
not name the Planning Board, a government body admittedly independent from the Town, and
Plaintiffs are not challenging the Planning Board’s recommendation to approve the Ordinance or
its finding that the Redevelopment Plan is not inconsistent with the Master Plan. Stip. 9; Compl.
The Complaint does not challenge the designations of the properties within the
Redevelopment Area or the adoption of the Master Plan. Compl.
The Complaint contends that the Governing Body’s approval of the Ordinance was “arbitrary,
capricious, and unreasonable[.]” Id. at ¶26.
Plaintiffs’ Complaint alleges:
24. The Defendant, through its professionals, failed to utilize competent and
credible data regarding the Redevelopment Plan through Ordinance #2023-03
especially with respect to the projections of the costs and revenues which were
not based upon accurate or reliable data gathered after the impact of COVID
economic disruptions.
17
25. The Defendant, in reaching its decision, failed to adequately consider the
economic impact, excess density, traffic, parking, costs and environmental
impacts of the development being permitted through the adoption of the
Redevelopment Plan.
Complaint, ¶¶24-25.
Parties’ Positions
Plaintiffs recognize, in part, the controlling law, that as to the subject Ordinance, a “presumption
of validity” attaches to any municipal ordinance, especially to an ordinance which declares that
an area is in need of redevelopment. See 62-64 Main St. LLC v. Mayor and Council of
Hackensack 221 N.J. 129, 157 (2105); Levin v. Twp. Committee of Bridgewater Twp., 57 N.J.
506, 537 (1971). See generally, Cox and Koenig, New Jersey Zoning and Land Use
Administration, (Gann 2021) at Secs. 11-3.5 and 41-2 (Plaintiffs’ October 18, 2023 Trial Brief at
8). Plaintiffs also note that the burden of proof to invalidate an ordinance rests upon the
plaintiffs. PADNA v. City Council of Jersey City, 413 N.J. Super. 322, 332, 335 (App. Div.
2010), certif. denied, 205 N.J. 79 (2011). (Id.) Fundamentally, Plaintiffs acknowledge their
burden is to demonstrate that the ordinance is “arbitrary, capricious” or unreasonable”. Id., at
331. (Id.)
However, Plaintiffs contend that7, the presumption is only “entitled to deference provided [it is]
supported by substantial evidence on the record.” Gallenthin Realty Development, Inc. v.
Borough of Paulsboro, 191 N.J. 344, 372-73 (2007); see also N.J.S.A. 40A:12A-6(b)(5)(c).
Plaintiffs fundamentally contend that the Governing Body failed to satisfy the “substantial
evidence” legal requirement, and that the Governing Body improperly failed to solicit or review
any other proposals for redevelopment for the Lord & Taylor site or any redevelopment of other
areas of the Town included in the Subject Ordinance. (Id. at 8-9).
In contrast, Defendants contend that a governing body’s approval of a redevelopment plan is

governed by Section 7 of the LRHL, which permits a municipality to adopt a redevelopment plan
that is either: (1) “substantially consistent with the municipal master plan” or (2) “designed to
effectuate the master plan.” N.J.S.A. 40A:12A-7(d). Since either will support approval, Plaintiffs
must show that the Redevelopment Plan was not “substantially consistent” with and not
“designed to effectuate” the Master Plan. See also Myers v. Ocean City Zoning Bd. of Adj., 439
N.J. Super. 96, 104 (App. Div. 2015) (“[T]he concept of ‘substantially consistent’ permits some
inconsistency, provided it does not substantially or materially undermine or distort the basic
provisions and objectives of the Master Plan.’”)(quoting Manalapan Realty, L.P. v. Twp.
Comm., 140 N.J. 366, 384 (1995)).(Def-Intervenor’s November 17, 2023 Opposition Trial Brief
at 16-17).
Defendants contend that Plaintiffs incorrectly seek to impose the “substantial evidence” standard
here, which, as Defendants contend is only applicable to designation decisions, not, as here, to
7
Pls. Tr. Brf at 8-9.
18
challenges to approval of a redevelopment plan. See Powerhouse Arts Dist. Neighborhood

Ass’n v. City Council of City of Jersey City, 413 N.J. Super. 322, 333 (App. Div. 2010). ( Where
Appellate Division distinguished between the “substantial evidence” standard as applying only
to designation determinations and not to redevelopment plan approvals). (Def XS Opp Brief at
30-38). Instead, Defendants contend that governing body’s determination that its ordinance is
substantially consistent with its municipal master plan “is entitled to great weight and
deference.” Id. (quoting Manalapan, 140 N.J. at 383; see also Fallone Prop. v. Bethlehem Plan.
Bd., 369 N.J. Super. 552, 560-61 (App. Div. 2004) (presumption that “municipal governing
bodies will act fairly and with proper motives and for valid reasons”) (quoting Kramer v. Bd. of
Adj., Sea Girt, 45 N.J. 268, 296 (1965)). Given this great deference, a court’s “review of the
adoption of a redevelopment plan is limited.” See Bryant v. City of Atl. City, 309 N.J. Super.
596, 610 (App. Div. 1998)). In reviewing a redevelopment plan approval, “‘[i]t is wholly
inappropriate for any court to substitute its judgment for that of the legislative body of the city in
an area appropriate for legislative determination, or to interpose, without clear and convincing
reason to do so[.]’” Downtown Residents for Sane Dev. v. City of Hoboken, 242 N.J. Super. 329,
340 (App. Div. 1990) (citation omitted). Thus, a presumption of validity attaches to the adoption
of a redevelopment plan with deference given to a governing body in making such a
determination. See id. at 332. As such, “a party challenging the validity of municipal action bears
a heavy burden.” Id. See also Infinity Broadcasting Corp. v. N.J. Meadowlands Comm’n, 377
N.J. Super. 209, 225 (App. Div. 2005), aff’d in part, rev'd in part on other grounds, 187 N.J. 212
(2006); Bryant, 309 N.J. Super.at 610. To set aside an approved redevelopment plan, the
challenger must prove that the “legislative decisions made must be more than debatable, they
must be shown to be arbitrary or capricious, contrary to law, or unconstitutional.” Downtown,
242 N.J. Super. at 332 (emphasis added) (citing Hutton Park Gardens v. Town Council of W.
Orange, 68 N.J. 543, 564 (1975)).
Legal Analysis
Here, as Defendants argued as set forth above, the controlling law, is not “substantial evidence.”
8
Powerhouse Arts Dist. Neighborhood Ass’n, 413 N.J. Super. at 333. Rather, Plaintiffs bear the
heavy burden of overcoming the presumption of validity accorded the decision of the Governing
Body by showing that it was “arbitrary, capricious, and unreasonable.” Manalapan, 140 N.J. at
383; see also Fallone Prop. v. Bethlehem Plan. Bd., 369 N.J. Super. 552, 560-61. Here, the
Ordinance adopts a Redevelopment Plan, the standard for which is that it “either” be
“substantially consistent” or “designed to effectuate” the Master Plan. N.J.S.A. 40A:12A-7(d).
Despite amending its pleading, Plaintiffs’ First Amended Complaint (the “Complaint”) fails to
specify how the Redevelopment Plan is not “either” “substantially consistent” or “designed to
effectuate” the Master Plan, as is Plaintiffs’ burden.. Moreover, Plaintiffs admit that
8
Much of Plaintiffs argument addresses the “designation” process, as in their discussion of Hirth
v. City of Hoboken, 337 N.J. Super. 149 (App. Div. 2001) and Malanga v. Twp. of West Orange,
253 N.J. 291 (2023), which Defendant XS’s opposition resoundingly rebuffs, and as Plaintiffs
conceded at oral argument, is not at issue here. (See, e.g., Pls’ Initial Brief at 10-14).
19
“substantially consistent” with the Master Plan, “does allow for ‘some inconsistency[.]’” Pls.’
Br. at 15.
Thus, a challenge to the validity of a municipal ordinance or action must

overcome the presumption of validity--a heavy burden. 515 Assocs. v. City of
Newark, 132 N.J. 180, 185, 623 A.2d 1366 (1993); First Peoples Bank v. Medford
Township, 126 N.J. 413, 418, 599 A.2d 1248 (1991). When two actions are open
to a municipal body, municipal action is not arbitrary and capricious if exercised
honestly and upon due consideration, even if an erroneous conclusion is
reached. Worthington v. Fauver, 88 N.J. 183, 204-05, 440 A.2d 1128
(1982); Bayshore Sewerage Co. v. Department of Envtl. Protection, 122 N.J.
Super. 184, 199, 299 A.2d 751 (Ch.Div.1973), aff'd, 131 N.J. Super. 37, 328 A.2d
246 (App.Div.1974). A determination predicated on unsupported findings is the
essence of arbitrary and capricious action. In re Boardwalk Regency Casino
Licensing Application, 180 N.J. Super. 324, 334, 434 A.2d 1111
(App.Div.1981), modified on other grounds, 90 N.J. 361, 447 A.2d 1335 (1982).
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 …
[that] would rationally support a conclusion that the enactment is
in the public interest. [Hutton Park Gardens v. West Orange Tp.
Council, 68 N.J. 543, 564-65, 350 A.2d 1 (1975)
(citations omitted)].
Bryant v. City of Atl. City, 309 N.J. Super. 596, 610 (App. Div. 1998)
Plaintiffs contention that “increased building heights, building coverage and increased traffic
flow” of the Redevelopment Plan are inconsistent with the Master Plan (id. at 13, 15), but
provides no record support. Instead, the record demonstrates that the Redevelopment Plan
addresses permitted uses, building heights, setbacks, and coverage, and other criteria for each of
the zones in the Redevelopment Area, along with a multitude of circulation considerations in the
transit-oriented development, including analyses of traffic and pedestrian matters, J-6 at 18-84,
101-107. The Redevelopment Plan also addresses building design, parking, sidewalks and
streetscapes, traffic, and other aspects of the Redevelopment Plan, responding to inquiries from
the Governing Body members and demonstrating how they were consistent with the Master Plan.
J-4 at 35-44. As to building heights, the Master Plan specifically permitted increased heights
within the Redevelopment Area. See, e.g., J-1 at 122.
As indicated above as to Plaintiffs’ contentions regarding increased building heights and building
coverage, the record similarly rebuts Plaintiffs’ contention that “increased traffic flow was not
appropriately considered. Here traffic matters were appropriately considered based on the
analysis of a professional planner and traffic engineer: “I do think that there is a consistency in
20
what this plan is proposing with what was in the Master Plan.” See, e.g., J-6 82-84. To sure, as
to traffic flow considerations, deference is due to the appropriate policy determinations of a
Governing Body: “amendments are not invalidated simply because traffic problems that a Home
Depot may generate could have been resolved during the site-plan stage and by strict
enforcement of existing regulations rather than through zoning amendments. The judiciary
cannot evaluate such a policy determination based on the private views of judges.” Manalapan,
140 N.J. at 384-85.
Here, where Plaintiffs’ burden is to establish that the Redevelopment Plan is not substantially
consistent with the Master Plan; however, the record demonstrates no inconsistency. As such,
Plaintiffs have failed to meet their burden.
So too, had Plaintiffs had established that the Redevelopment Plan was not substantially
consistent with the Master Plan, and they did not -- Plaintiffs’ burden is to demonstrate arbitrary
and capricious action by the Governing Body. Here, where Plaintiffs contend there was a “rush
to judgment” and “rubber-stamping,” (Pl’s Brf at 14-17), the Stipulated Facts alone demonstrate
an appropriately supported and developed, well-reasoned, careful, and sound decision.
10. Pursuant to Local Redevelopment and Housing Law, N.J.S.A 40:A-12A-1, et

seq. (“Redevelopment Law”), the Town is authorized to designate areas within the
boundaries of the Town as being in need of redevelopment, rehabilitation, or both.
11. On March 10, 2020, the Town’s governing body adopted Resolution 77-2020,
directing the Planning Board to make recommendations as to whether certain
properties, commonly known as the seven parking lot parcels and train station
parcels, should be designated as a non-condemnation area in need of
redevelopment.
12. On June 30, 2020, the Town’s governing body adopted Resolution No. 145-
2020, which designated the following parcels as non-condemnation areas in need
of redevelopment: Block 3101, Lot 5, and Block 3103, Lot 7.
13. On August 11, 2020, the Town’s governing body adopted Resolution No. 180-
2020, which designated the following parcels as non-condemnation areas in need
of redevelopment: Block 2502, Lot 14; Block 2506, Lot 1; and Block 2508, Lot
11.
14. On October 13, 2020, the Town’s governing body adopted Resolution No.
225-2020, which designated the entirety of the Town as an area in need of
rehabilitation, and included certain properties owned by the Town designated as :
Block 2507, Lot 1; Block 2508, Lot 12; Block 2509, Lot 1; Block 3101, Lot 1;
Block 3102, Lot 1; Block 3103, Lots 1 and 6; Block 3103, Lot 12; and Block
3106, Lot 5.
21
15. Block 3106, Lot 5 is not part of the Redevelopment Plan, but serves as a
“Preview Center” for the public to view and obtain information related to the
proposed redevelopment.
16. The parcels identified in Paragraphs 12, 13, and 14 shall be referred to
collectively as the “Redevelopment Area” at issue in this matter.
17. On January 26, 2023, Topology NJ, LLC, prepared and submitted a
redevelopment plan for the Redevelopment Area entitled “Lord & Taylor/ Train
Station Redevelopment Plan” dated January 26, 2023 (“Redevelopment Plan”) to
the Town’s governing body.
18. On January 31, 2023, the Town’s governing body introduced Ordinance 2023-
03 to adopt the Redevelopment Plan. After the introduction of Ordinance 2023-
03, the Ordinance and the Redevelopment Plan was referred to the Planning
Board for its review and recommendations pursuant to the Local Redevelopment
and Housing Law, N.J.S.A. 40A:12A-1 et seq. Topology made a presentation at
that meeting.
19. On February 6, 2023, the Planning Board considered the Redevelopment Plan
at its public meeting of that same date.
20. On or about February 9, 2023, the Planning Board sent a Memorandum dated
February 9, 2023 to the Town’s governing body stating that the Redevelopment
Plan was consistent with the Town’s Master Plan.
21. On February 14, 2023, the Town adopted Ordinance 2023-03, thereby
approving the Redevelopment Plan.
22. Notice of Adoption of this Ordinance was published in the Westfield Leader
on February 16, 2023.
Stipulated Facts at Pars. 10-22.

Here, the record beyond the Stipulated Facts further demonstrates an appropriate decision, far
from arbitrary and capricious:
• The Redevelopment Plan provides an exhaustive recitation of its consistency with the
Master Plan. See J-1 at 119-138; see also id. at 2-3, 9 (setting forth goals and objectives)
• The Governing Body referred the Redevelopment Plan to the Planning Board (the body
responsible for preparing the Master Plan per N.J.S.A. 40:55D-28)
• Public Presentation and Governing Body Consideration of the Redevelopment Plan

o Planner and Planner for Topology agreeing that the Redevelopment Plan was
consistent with the Master Plan. J-5.
22
o The Planning Board thereafter submitted its Report to the Governing Body
recommending that the Redevelopment Plan “is consistent with the Master Plan
and should be adopted by the Town Council.” J-5.
o On the Second Reading At its January 31, 2023 Meeting the Mayor laid out a
summary of the protocol for the meeting, and acknowledged that there may be
differences of opinion, but feedback was important and encouraged.
o Donald Sammet, PP/AICP, the Town Planner, made a presentation to the
Governing Body. J-3 at 6:15-14:13; J-4 at 3-6. Mr. Sammet explained that the
Master Plan functioned as the “development roadmap” for Westfield and that the
Redevelopment Plan under consideration was consistent with the Master Plan.5 J-
3 at 13:4-10; J-4 at 5-6. Mr. Sammet elaborated that the ULUC “talks about the
use of design guidelines to ensure consistency with [the] existing character of our
community,” which includes items such as setbacks, creation of public spaces and
public plazas, locating offices and residential uses and other development-related
parameters. J-3 at 12:20-13:3;J-4 at 5.
o Mr. Sammet noted that “[i]n the Redevelopment Plan document there is an entire
chapter showing how the plan is consistent with the town Master Plan.” J-4 at 6;
see also J-1 at Section 9.1.
o The Planning Board conducted a consistency analysis with evaluation from the
Town, the Governing Body considered the Planning Board Report, noting that the
Planning Board members are “the ones [who] were actually instrumental in
creating and adopting” the Master Plan and that “there’s no group more intimately
familiar with the Master Plan than the Planning Board.” J-6 at 90-91; see also id.
at 102:3-7 (commenting on Planning Board finding that Redevelopment Plan
“aligned with our master plan”).
“A planning board’s determination of whether proposed amendments are ‘substantially
consistent’ with the town’s master plan are ‘entitled to deference and great weight.’”) (citing
Manalapan, 140 N.J. at 383); Fallone, 369 N.J. Super. at 561 (“[P]lanning boards are granted
‘wide latitude in the exercise of the delegated discretion’ due to their ‘peculiar knowledge of
local conditions.’ Indeed, local officials are ‘thoroughly familiar with their communities’
characteristics and interests’ and are best suited to make judgments concerning local zoning
regulations.”).
Plaintiffs also contend that the Redevelopment Plan conflicts with previous zoning requirements
and restrictions: “Probably the most glaring error in both the planning board and council
proceeding is the failure to explain why the master plan and zoning ordinance prohibit residential
units in the GB-2 zone where the Lord & Taylor building is located, and the redevelopment plan
sweeps away that ordinance.” (Pls. Tr. Brf. at 13). However, the Redevelopment Plan at issue
supersedes and amends any existing zoning laws as a matter of law—it does not conflict with a
prior zoning law that is not controlling or effective as against the Redevelopment Plan. The
Hirth Court recognized that a redevelopment plan supersedes all applicable existing zoning rules.
Id., 337 N.J.Super. at 165. (“Thus, one component of a redevelopment plan is the zoning or
rezoning of the redevelopment area.” ).
23
Plaintiffs also incorrectly contend that the Municipal Law Use Law, N.J.S.A. 40:55D-1 et seq.
(“MLUL”) applies, specifically as to limiting the Redevelopment Plan to only the five acres of
the Lord & Taylor site, but not the remaining 9 acres. (Pls. Tr. Brf. at 13). However, the MLUL
does not apply to a plaintiff’s challenge to a redevelopment plan. Hirth, 337 N.J.Super. at 164.
(“[T]he procedures of the Municipal Land Use Law do not apply to adoption of a redevelopment
plan, including the zoning component.”)
Plaintiffs also contend due process violations:

So the transcript of the public hearing in this and other redevelopment cases does
not contain the elements of due process for objectors. The redevelopment plan
was released to the public a few hours before the final reading of the
redevelopment ordinance by the Council on January 31, 2023. A request to delay
the hearing was denied. The Planning Board reviewed the plan on February 6,
2023. This procedural rush to judgment while following the correct legal steps
hardly provides due process for appropriate study, review and examination by the
plaintiffs as members of the citizenry public of Westfield. There was no cross-
examination of fact or expert witnesses. The public made comments and
submitted information for the governing body and the planning board to consider.
But as the Chief Justice requires in the [Malanga v.]West Orange decision, the
entire record must be considered to determine if there is “sufficient credible
evidence” in the record to support a redevelopment designation. [Malanga v.]
West Orange, supra, [253 N.J.] at 314. That evidence to sustain a redevelopment
designation must be “substantial.” Id.
(Pls. Tr. Brf. at 14)(emphasis added).9 However, here, the Governing Body satisfied the requisite
due process by publication of notice and the holding of public hearings. Like Plaintiffs here, the
plaintiffs in Infinity Broadcasting Corp. v. N.J. Meadowlands Comm'n, argued that they were “unduly
limited in their presentations at the hearing,” that their expert reports were “not fully
consider[ed,]” and that an evidentiary hearing and “proof-development opportunities” were
required for amendment to a redevelopment agreement. Infinity, 377 N.J. Super. 209, 215-16
(App. Div. 2005), aff'd in part, rev'd in part on other grounds, 187 N.J. 212 (2006), However, the
Appellate Division held in Infinity that although due process required “some form of hearing,” in
a quasi-legislative determination, like the adoption of a redevelopment plan, that requirement
was satisfied “by holding public hearings on the amendments, by providing enough information
about the amendments for [plaintiffs] to oppose them, and by receiving their comments and
objections.” Infinity, 377 N.J. Super. at 226, 228, 229.10
9
As discussed above, Plaintiffs here incorrectly argue for “substantial evidence” as a burden on
the Governing Body’s record for adopting the Redevelopment Plan.
10
Defendants contend that Plaintiffs’ failed to raise due process issues in their Complaint and
have waived their right to assert same at trial. (See Def XS’s November 17, 2023 Opp Trial Brf
at 39, n. 14). The Court agrees with Defendants’ position as to the failure to assert this issue
previously, but in an abundance of caution, the Court considered the argument and addressed it
as above.
24
CONCLUSION
For all the foregoing reasons, the Court finds that Plaintiffs have failed to meet their burden, and
the Court finds that the record demonstrates that the subject action of the Defendant Town of
Westfield, here, the Governing Body, was not arbitrary, capricious or unreasonable, and was
appropriately and adequately supported by the record. Accordingly, the Court hereby enters
Judgment denying Plaintiffs’ requested relief set forth in their Amended Complaint of
invalidating the Subject Ordinance No. 2023-03, and Judgment is entered in favor of Defendants
and against Plaintiffs dismissing the action with prejudice.
So Ordered and Adjudged this 26th day of February, 2024.
Daniel R. Lindemann, J.S.C.
25

OWP Ruling 2.26.24

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UNN-L-001011-23 02/26/2024 Pg 1 of 25 Trans ID: LCV2024497491

SUPERIOR COURT OF NEW JERSEY

Plaintiffs submitted their Sur-Reply on January 26, 2024 prior to Noon.

The trial was conducted on January 26, 2024 at 1:30 p.m.

2. Plaintiff, Frank Fusaro (“Fusaro”) is an officer of Westfield Advocates and resides at

3. Plaintiff, Carla Bonacci (“Bonacci”) is an officer of Westfield Advocates and resides at

4. Plaintiff, Alison Carey (“Carey”) is an officer of Westfield Advocates and resides at

5. Plaintiff, William Fitzpatrick (“Fitzpatrick”) is a member of Westfield Advocates and

6. Plaintiff, Anthony LaPorta (“LaPorta”) is a member of Westfield Advocates and resides

7. Defendant, Town of Westfield (“Westfield” or “Town”) is a municipal corporation and

8. Intervenor-Defendant SW Westfield LLC (“SW”) is the designated Redeveloper of the

The Redevelopment Plan

JOINT EXHIBIT LIST4

8. Township of Westfield General Ordinance 2023-03, dated February 14, 2023.

9. Notice of publication of the adoption of General Ordinance 2023-03 in the

Factual and Procedural History 6

Pursuant to Local Redevelopment and Housing Law, N.J.S.A 40A:12A-1 to -49

The Redevelopment Plan outlines its goals and objectives as follows:

On a very different note, I do want to talk a little bit about tonight’s

(J-3, Tr. at 4:1-5:2; see also J-4, Minutes, at 2).

Mr. Colley explained what a Redevelopment Plan is and is not:

So, in its simplest terms, a redevelopment plan is a zoning ordinance

It’s also important for us to understand what a redevelopment plan

It’s also not a financial agreement. What the counsel is considering

while the redevelopment plan is going to set land uses, bulk

J-3 at 16:9-17:14; see also J-4 at 10.

J-3 at 68:1-18; J-4 at 51 (emphasis added).

[T]his Master Plan is the Planning Board’s document. And so it’s

And I also want to acknowledge the level of professionals that our

Plaintiffs’ Complaint alleges:

In contrast, Defendants contend that a governing body’s approval of a redevelopment plan is

challenges to approval of a redevelopment plan. See Powerhouse Arts Dist. Neighborhood

Thus, a challenge to the validity of a municipal ordinance or action must

Legislative bodies are presumed to act on the basis of adequate

10. Pursuant to Local Redevelopment and Housing Law, N.J.S.A 40:A-12A-1, et

Stipulated Facts at Pars. 10-22.

• Public Presentation and Governing Body Consideration of the Redevelopment Plan

Plaintiffs also contend due process violations:

So Ordered and Adjudged this 26th day of February, 2024.

Daniel R. Lindemann, J.S.C.

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