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Parisi v. North Bergen Municipal Port Authority

Decided: January 13, 1987.

JOSEPH C. PARISI AND J. FLETCHER CREAMER, SR., PLAINTIFFS-RESPONDENTS,
v.
NORTH BERGEN MUNICIPAL PORT AUTHORITY AND ROC HARBOUR CORP., DEFENDANTS-APPELLANTS, AND TOWNSHIP OF NORTH BERGEN, HUDSON PLAZA, INC., AND ASSET MANAGEMENT CORP., DEFENDANTS. ELIZABETH MEYERS, PLAINTIFF-RESPONDENT, V. NORTH BERGEN MUNICIPAL PORT AUTHORITY AND ROC HARBOUR CORP., DEFENDANTS-APPELLANTS, AND TOWNSHIP OF NORTH BERGEN, HUDSON PLAZA, INC., AND ASSET MANAGEMENT CORP., DEFENDANTS



On certification to the Superior Court Appellate Division, whose opinions are reported at 206 N.J. Super. 499 (1985).

For affirmance in part, reversal in part -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, Justice.

Handler

[105 NJ Page 27] ROC Harbor Corporation (ROC) is the contract purchaser of property that lies within the Township of North Bergen. The property is located within the North Bergen "port district." ROC made an application to the North Bergen Planning Board (Board) for authorization to construct a residential condominium development on its property. The application was opposed by adjacent property owners and a taxpayer in the community.

These differences eventuated in litigation in which the central issue is whether the Board or the North Bergen Municipal Port Authority (Authority) has jurisdiction over the proposed use of ROC's property.

I.

On February 27, 1981, ROC applied to the Board, seeking site plan approval for the construction of a residential condominium on its 21.5 acres property. It proposed constructing two 240-foot high-rise towers; its application accordingly included a request for a height variance from the zoning ordinance's building height limitation of 40 feet.

Subsequent to the filing of ROC's application, the Township of North Bergen, on December 17, 1981, passed an ordinance pursuant to N.J.S.A. 40:68A-32, creating a municipal port authority and delineating a "port district" over which the Authority had statutory responsibilities. ROC's property was located within the port district. The newly created Authority through its counsel appeared at the Planning Board hearings on ROC's application. The Authority raised the question as to which entity, the Board or the Authority, had jurisdiction to act upon the ROC application for condominium development. Apparently it was decided that "concurrent jurisdiction" would be appropriate, for the time being.

The Board conducted seven hearings on the application and, by resolution dated June 15, 1982, granted the relief sought by the application. The Board determined that "the within application meets the criteria set forth for a special use." The Board also included certain conditions, one of which was that ROC must obtain approval from the Port Authority.

On June 23, 1982, adjoining property owners, plaintiffs Joseph C. Parisi and Fletcher Creamer, Sr., filed a complaint in lieu of prerogative writ seeking to set aside the Board's determination on the basis that it did not have jurisdiction to entertain the application. The Authority was also named as a

defendant in that action. The Authority filed a motion for summary judgment, arguing "that the * * * Authority has sole and exclusive jurisdiction of all applications for development within the North Bergen Port District * * *." Plaintiffs filed parallel motions also contending that exclusive jurisdiction reposed in the Authority.

Prior to a determination of the motions, on September 7, 1982, ROC filed its application with the Authority seeking approval of its proposed development.*fn1 Six public hearings were held before the Authority pursuant to its rules and regulations. While the matter was before the Authority and after the fifth hearing on ROC's application, the trial court, on January 28, 1983, determined the motions for summary judgment in the pending action. It ruled that the Authority had exclusive jurisdiction of the Port District of North Bergen, and set aside the earlier Board approval of ROC's application.

Following the court's ruling, the Authority, in the sixth and final hearing on February 15, 1983, adopted a resolution granting site plan approval and a height variance to ROC.*fn2

Thereafter, a separate action in lieu of prerogative writ challenging the Authority's action was filed by the plaintiff Elizabeth Meyers, a taxpayer of North Bergen, later joined by plaintiffs Creamer and Parisi. Plaintiffs contended, inter alia, that the Authority's action was "arbitrary" and "lack[ed] the authority and jurisdiction to effectuate a change in the town's zoning scheme," and that public property, a municipal street, had been improperly taken.

The Authority in the second action filed a motion for summary judgment claiming that it had jurisdiction over the application and that the plaintiff's action was barred by res judicata. In the first action, the plaintiffs had successfully contended that the Authority had exclusive jurisdiction to hear and determine the application for approval of the condominium development. In the second action, plaintiffs argued that the Authority did not have jurisdiction to approve the application, contending that since a height variance was required, only the appropriate authorized municipal board could grant the variance. Claiming under the municipal land use law that the planning board has jurisdiction over height variances, plaintiffs in effect sought in the second suit the result they had opposed in the first. After a hearing on the merits held on October 31, 1983, the trial court, on December 6, 1983, issued two decisions. In the first it held that plaintiffs, by virtue of the judgment obtained in January 1983, were barred by res judicata from relitigating the jurisdictional issue; it also reiterated its earlier determination that the Authority is not subject to the local zoning laws and has complete and exclusive jurisdiction over lands within its boundaries. In the second decision the trial court concluded that the Authority's determination was adequately supported by evidence that the Authority "is exempt from North Bergen zoning law," and that the plan approved was feasible and reasonable and no unlawful taking of a municipal street occurred. Judgments were entered on December 19, 1983. Notices of Appeal were filed by plaintiffs Creamer and Parisi on January 12, 1984, and Meyers on February 14, 1984. On February 23, 1984, the Authority adopted its first zoning ordinance for the Port District.

The Appellate Division then reversed in a reported opinion, Parisi v. North Bergen Mun. Port Auth., 206 N.J. Super. 499, 508 (App.Div.1985). It determined that res judicata did not bar plaintiff Meyers from relitigating the jurisdiction issue. As to the merits of the case the court determined that the Authority had no power to control the structural nature of non-port

related buildings and "that approval of high-rise condominiums and development by private parties * * * is not within the definition of 'port system.'" Id. at 511. The Appellate Division also found that the resolution of the Authority was "patently deficient to establish sufficient grounds for approval of the application." Id. at 504.

Judge Petrella concurred and concluded that N.J.S.A. 40:68A-29 to -69 in no way grants anything "akin to zoning authority to a Municipal Port Authority." Id. at 513 (Petrella, J., concurring). He argued further that there was no basis to imply that the Authority has power to permit non-governmental entities to disregard local regulations, id. at 514, and that the trial judge applied "a non sequitur when he concluded that because a * * * ...


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