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Paramus Multiplex Corp. v. Hartz Mountain Industries Inc.

Decided: August 26, 1987.

PARAMUS MULTIPLEX CORP., RKO CENTURY WARNER THEATRES, INC., AND RIALTO THEATRE CORP., PLAINTIFFS,
v.
HARTZ MOUNTAIN INDUSTRIES, INC., THE VILLAGE OF RIDGEFIELD PARK, PLANNING BOARD OF THE VILLAGE OF RIDGEFIELD PARK AND THE RIDGEFIELD PARK REDEVELOPMENT AGENCY, DEFENDANTS



Marguerite T. Simon, J.s.c.

Simon

[236 NJSuper Page 106] This matter is before the court on appeal from the Planning Board of the Village of Ridgefield Park which granted site-plan and variance approval to defendant, Hartz Mountain Industries,

Inc., for construction of an office building of approximately 160,000 square feet and a theatre of approximately 69,000 square feet. The application involves a 13.08-acre site and is phase two of a redevelopment plan involving a total of about 46 acres in a former solid-waste landfill area.

Although testimony indicated some confusion as to their interrelationship, plaintiffs, RKO Century Warner Theatres Corp. (RKO) and Paramus Multiplex Corp. (Multiplex) operate a tenplex movie theatre on Route 4 in Paramus, six to eight miles from the site in question. RKO also operates a movie theatre complex on Route 17 in Paramus and several theatres in adjoining counties. Plaintiff, Rialto, operates a movie theatre in the Village of Ridgefield Park.

RKO appeared by counsel at the planning board proceedings and sought to cross-examine witnesses and present testimony as an interested party under the Municipal Land Use Law, N.J.S.A. 40:55D-4. The board denied this request. Plaintiffs, Multiplex and Rialto, have joined in this lawsuit but did not seek to appear before the municipal agency.

The second count of the complaint challenged the blight proceedings and redevelopment plan entered into before 1981 between the municipality and Hartz Mountain Industries (Hartz). This count was dismissed upon prior motion as being untimely. The remaining allegations raise several significant issues, the most important being a delineation of the limits of the concept of "interested party" under the Municipal Land Use Law.

Standing.

Does a competitor have the right to appear before a municipal agency to challenge a land use application by an entity engaged in the same business where, other than to increase competition, the municipal action would have no impact upon the present or prospective property rights of the party seeking to appeal? This court answers in the negative.

At the planning board hearing, counsel for RKO cited Home Builders League of So. Jersey, Inc. v. Tp. of Berlin, 81 N.J. 127 (1979), as authority to confer standing. In order to more fully ascertain the impact upon plaintiff RKO (the only party who sought to appear before the municipal agency), this court looked for guidance from Allen v. Planning Bd. Tp. of Evesham, 137 N.J. Super. 359, 362-363 (App.Div.1975), and accordingly, took testimony of several witnesses. Certain findings of fact can be made from that testimony. Plaintiff RKO is a direct competitor of Loews, the intended operator of the proposed multi-unit cinema complex. This theatre complex would likely draw patrons from the same general area as those currently patronizing RKO's cinema complexes. RKO never directly negotiated for this site or for a theatre site in the immediate area of the application, but presented general testimony that it is always interested in new locations and it would be barred from this location by a grant of the application.

A comment by the court triggered testimony that should Loews show a certain film in Ridgefield Park, RKO may be precluded by the distributor from showing the same film in Paramus. It is not necessary to rule as to whether preclusion of the showing of the same movie would impact upon a property right and confer standing as this testimony is specifically discounted for its lack of credibility. Deposition testimony of George Jacobs, Assistant Vice-President of Hartz, read into the record by counsel for plaintiffs dealt specifically with the impact upon patronage of the same movie playing in both Paramus and Ridgefield Park. This court finds that the parties contemplate the same films being available at the same time to both competitors.

Plaintiffs cite language to the effect that where substantial public interest is involved, slight private interest is sufficient to confer standing. Home Builders, supra at 132 (citing Elizabeth Federal S. & L. Ass'n v. Howell, 24 N.J. 488, 499 (1957)). They then refer to the substantial public interest ...


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