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Kanter v. City of Passaic

Decided: November 17, 1969.

MICHAEL KANTER, BENJAMIN KANTER, JANE KANTER AND MARIANNE KANTER, PARTNERS TRADING AS KANTER ASSOCIATES, PLAINTIFFS,
v.
CITY OF PASSAIC, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; BOARD OF ADJUSTMENT OF THE CITY OF PASSAIC; CITY OF PASSAIC REDEVELOPMENT AGENCY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; ELIAS DRAZIN; AND TABERON CORPORATION, A NEW JERSEY CORPORATION, DEFENDANTS



Joelson, J.s.c.

Joelson

[107 NJSuper Page 558] Plaintiffs filed a complaint on April 16, 1969 seeking to set aside a variance granted by the Passaic Board of Adjustment to Taberon Corporation. Thereafter, on May 18, 1969 it filed a second complaint seeking to set aside certain other acts of the defendants which will be hereinafter described. Both actions are complaints in lieu of prerogrative writs and have been consolidated. This matter now comes before the court on cross-motions for

summary judgment made by identical plaintiffs and defendants in both actions.

The controversy centers around the authorization for defendant Taberon Corporation to construct an office building of no more than 18,000 square feet on the northwest corner of Prospect Street and Howe Avenue in the City of Passaic without any on-site parking facilities being provided. It is undisputed that under the Passaic zoning ordinance there is a requirement that one on-site parking space be provided for every 400 square feet of gross floor area for an office use in excess of 10,000 square feet.

It is also undisputed that the premises in question are included within the area of the redevelopment plan of the City of Passaic known as "Urban Renewal Plan for the Downtown Passaic Project, No. N.J.R.-71," and that the area was duly designated by ordinance of the Passaic Board of Commissioners on May 24, 1966. It further appears that the ordinance specifically approved said urban renewal plan, which plan had been prepared pursuant to the Redevelopment Agencies Law, N.J.S.A. 40:55C-1 et seq. , by the Passaic Redevelopment Agency for the area which had been determined to be a "blighted area."

It is likewise uncontested that the Redevelopment Agency contracted to sell the premises to Taberon Corporation subject to that corporation being granted a variance from the zoning regulations so as to be able to construct a four-story office building without any on-site parking facilities. The parties also agree that such a variance was granted Taberon Corporation by the Passaic Board of Adjustment, but plaintiffs contest the validity of such a variance.

While contending that the variance was properly granted, the defendants also argue that it was not necessary to apply for the variance because of the ordinance of May 24, 1966 and subsequent amendments thereto. They point out that the ordinance specifically approved the urban renewal plan, and that section F of the plan provides that "The Urban Renewal Plan may be amended from time to time by Resolution of the

Board of Commissioners of the City of Passaic and of the City of Passaic Redevelopment Agency."

It is established that the plan was amended by resolution of both the Redevelopment Agency and the board of commissioners. On October 17, 1969 the board of commissioners by resolution provided that an office building not in excess of 18,000 square feet may be erected on the site in question, and that "no on-site parking shall be required."

Finally, on May 1, 1969 the board of commissioners passed an ordinance which provided:

In all areas officially declared and delineated as urban renewal projects areas or neighborhood development program areas by duly adopted ordinances of the governing body of the City of Passaic, the standards and controls and designations contained in such legally adopted urban renewal or neighborhood development plans shall apply and shall take precedence over any standards and controls contained in this zoning ordinance.

Defendants contend that it was not necessary to apply for a zoning variance because of the ordinance of May 24, 1966, the resolution of October 17, 1968 and the ordinance of May 1, 1969. Against this contention plaintiffs argue that the resolution of October 17, 1968 was null and void because it purported to amend an ordinance, and they urge the proposition that an ordinance can only be amended through proceedings having formality equal to that required in the original enactment of the ...


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