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Tumpson v. Farina

Decided: April 23, 1990.

DANIEL TUMPSON, STEPHEN BUSCH, J. RONALD HINE, MONICA HETTERICH, AND PATRICK R. SMITH, ON BEHALF OF THEMSELVES AND 1691 ADDITIONAL SIGNERS OF A REFERENDUM PETITION, PLAINTIFFS-APPELLANTS,
v.
JAMES FARINA, PERSONALLY AND IN HIS CAPACITY AS CITY CLERK OF THE CITY OF HOBOKEN; PATRICK PASCULLI, INDIVIDUALLY AND IN HIS CAPACITY AS MAYOR OF THE CITY OF HOBOKEN, AND CITY OF HOBOKEN, A NEW JERSEY MUNICIPAL CORPORATION, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court, Law Division, Hudson County.

Gaulkin, Dreier and D'Annunzio. The opinion of the court was delivered by Gaulkin, P.J.A.D.

Gaulkin

Plaintiffs brought this prerogative writs action in lieu of mandamus to compel the Hoboken City Clerk to accept for filing a referendum petition calling for the repeal of an ordinance authorizing execution of a municipal development agreement and lease between the City of Hoboken and the Port Authority of New York and New Jersey (the Ordinance). On the parties' cross-motions, a Law Division judge entered judgment declaring that "the redevelopment process undertaken by the Mayor and City Council of the City of Hoboken is not subject to the referendum process" and denying plaintiffs' application for an order compelling the City Clerk to accept and file the petition. Plaintiffs appeal. We reverse.

I.

The Ordinance was adopted to implement a redevelopment project on the City's southern waterfront. Virtually all of the property compromising the project area had been owned by the United States government, leased to the City and subleased to the Port Authority in 1952. The City took title in 1984 and immediately entered into an agreement with the Port Authority contemplating the negotiation and execution of an agreement amending or replacing the 1952 lease to reflect redevelopment of the waterfront piers. Shortly thereafter, the Port Authority was legislatively authorized to enter into agreements to effectuate

a waterfront development project on the property. N.J.S.A. 32:1-35.36e,f,k.*fn1

In June 1988, the then mayor appointed an ad hoc committee to examine various possibilities for the redevelopment of the waterfront and, by ordinance adopted July 13, 1988, the Mayor and City Council were designated as the local redevelopment agency. N.J.S.A. 40:55C-37. The City retained a variety of architects, planners, financial analysts, traffic analysts and others to assist in the planning. A draft plan was developed and on May 11, 1989, the City and the Port Authority executed an agreement "to establish guidelines for a form of final agreement" to implement the project.

The City Council directed the local Planning Board to prepare a proposed redevelopment plan, conduct a preliminary blight investigation and review and report on the redevelopment plan prepared by the City's planning consultants. N.J.S.A. 40:55-21.10. In November 1989, the Planning Board found the project area blighted and reported its findings as to the proposed redevelopment plan. By ordinance passed on November 17, 1989 the Mayor and City Council adopted the redevelopment plan; on the same day, they also approved the Planning Board's blight report.

Some three weeks later, on December 7, 1989, the City Council adopted the Ordinance at issue here. Its essential provision is to authorize execution of a lease of the City property to the Port Authority. The authorized lease, attached to the Ordinance as an exhibit, is 126 pages long and its attached exhibits and schedules total almost 200 pages. The lease fixes a term of not less than 50 nor more than 99 years. The demised premises include the entire redevelopment area, including dedicated and improved streets, which the City is obligated to vacate. As lessee, the Port Authority undertakes

to use the property to effectuate the development plan, to spend at least $41 million in infrastructure construction and to conform to extensive and detailed design guidelines set forth in a lease attachment. Fixed rental payments total $10 million to September 30, 1990, an additional $20 million over at least 5 years contingent on the progress of development and annual percentage rentals based on "gross revenue" as defined in the lease.

On December 27, 1989, plaintiffs submitted their petition protesting the Ordinance, calling for its repeal by the City Council and, if the Council should fail to act, for submission of the Ordinance to the voters for approval or rejection at the polls. N.J.S.A. 40:69A-185 et seq. At the instruction of the City Law Director, the Clerk refused to accept the petitions. This action was filed on December 29, 1989. The Law Division judge denied plaintiffs' request for temporary restraints and on December 30, 1989 the Mayor executed the lease and ...


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