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Hirth v. City of Hoboken

February 15, 2001

MITCHELL HIRTH,
PLAINTIFF-APPELLANT,
V.
CITY OF HOBOKEN,
DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, L-5669-98.

Before Judges Skillman, Conley and Lesemann.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 24, 2000

This appeal involves a challenge to a City of Hoboken ordinance which adopted a redevelopment plan for a section of the City.

In 1997, the Hoboken City Council adopted a resolution which authorized the Planning Board (Board) to conduct a preliminary investigation of an industrial area in the northwest section of the City to determine whether the area was "in need of redevelopment" (sometimes referred to in this opinion as "blighted"),(*fn1) and if so, to prepare a redevelopment plan in accordance with the Local Redevelopment and Housing Law (Local Redevelopment Law), N.J.S.A. 40A:12A-1 to -63. Pursuant to this authorization, the Board contracted with its planning consultant, Elizabeth Vandor, to study that area of Hoboken.

On April 17, 1998, Vandor submitted a report which concluded that part of the northwest section of Hoboken is blighted because it is "suffering from a substantial degree of long-standing vacancy of land, commercial and industrial building abandonment, lack of maintenance and a general sense of stagnancy and under- utilization." The report identified specific blocks or parts of blocks, covering a twenty-four block area approximately seventy- two acres in size, as in need of redevelopment.

On April 29, 1998, the Board held a public hearing concerning Vandor's findings and recommendations, and on May 5, 1998, it essentially adopted her recommendations concerning the proposed boundaries of the redevelopment area.

On May 5, 1998, Vandor also submitted a second report, entitled "Northwest Redevelopment Plan," which set forth proposals for revitalization of the area in need of redevelopment. This report states that the redevelopment plan attempts to improve the city's tax base, create locations for new job opportunities of a type which are currently in demand, allow a limited amount of enlargement of existing non-residential uses where it is related to job expansion, create a reasonable level of residential density tied directly to provision of parking . . . create opportunities for large-scale retail (such as supermarkets), and encourage development of much needed public parking garages.

That same day, Vandor explained the contents of the redevelopment plan to the Board at an executive session. Following her presentation, the Board adopted a resolution which recommended that the City Council adopt the redevelopment plan.

On May 6, 1998, the City Council introduced an ordinance adopting the Northwest Redevelopment Plan and held an executive session at which Vandor outlined the contents of her two reports. On May 20, 1998, the City Council held a public hearing concerning the proposed redevelopment plan. At the conclusion of that hearing, the Council passed the ordinance adopting the redevelopment plan and amended the municipality's zoning map to incorporate the zoning changes set forth in the plan.

The redevelopment plan creates three zoning districts within the area in need of redevelopment. Residential uses are permitted in zones one and two, but not in zone three. The permitted uses in zone three include both large and small scale retail stores, restaurants, and professional and business offices.

The property plaintiff has contracted to purchase is located in zone three. The contract of sale "is expressly contingent upon the Buyer obtaining all necessary approvals and permits from any appropriate governmental agency to construct 80 residential units."

On July 10, 1998, plaintiff brought this action in lieu of prerogative writs challenging the validity of the Northwest Redevelopment Plan. Plaintiff claimed that zoning the property he has contracted to purchase solely for non-residential use was "arbitrary and capricious." Plaintiff also claimed that this zoning resulted in an unconstitutional "taking."

The case was brought before the trial court by the City's motion for summary judgment, which was supported by a statement of uncontroverted facts, the certifications of the City Clerk and Board Secretary, Vandor's report recommending designation of part of the City's northwest section as in need of redevelopment, and the municipal ordinance adopting the redevelopment plan. However, the City submitted to the trial court only limited excerpts of the transcripts of the hearing before the Board and none of the transcripts of the hearing before the City Council.

In opposition to the motion, plaintiff submitted a report by Peter G. Steck, a planning consultant, which concluded, among other things, that the zoning of plaintiff's property is "arbitrary, capricious and unreasonable."

The trial court granted Hoboken's motion for summary judgment. The court ruled that plaintiff does not have standing to challenge either Hoboken's blight determination or the redevelopment plan, because he did not file a "written objection" with the Board, as provided by N.J.S.A. 40A:12A-6b(7). In the alternative, the court rejected plaintiff's challenges to the blight determination and redevelopment plan on their merits. The court found that Vandor's report provided "substantial evidence" that "the area in question is, in fact, 'blighted' within the meaning of N.J.S.A. 40A:12A-5." The court also ruled that the placement of plaintiff's property in zone three was not arbitrary and capricious, and that "[t]he fact that plaintiff was not afforded the use he desired, i.e. residential use, does not constitute a taking."

We conclude that the trial court erred in ruling that plaintiff does not have standing to bring this action because he failed to file a written objection to the blight determination and redevelopment plan. Nevertheless, the court correctly concluded that the blight determination is valid, and plaintiff is not entitled to a plenary hearing to contest that determination. However, the court erred in granting summary judgment dismissing plaintiff's challenge to the ...


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