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Jersey Urban Renewal, LLC v. City of Asbury Park

May 5, 2005

JERSEY URBAN RENEWAL, LLC, PLAINTIFF-APPELLANT,
v.
CITY OF ASBURY PARK, CITY COUNCIL OF THE CITY OF ASBURY PARK, AND CITY OF ASBURY PARK PLANNING BOARD, DEFENDANTS-RESPONDENTS, AND ASBURY PARTNERS, LLC, DEFENDANT/INTERVENOR-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-3035-03.

Before Judges Conley, Braithwaite and Winkelstein.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION May 5, 2005

Submitted April 20, 2005

Plaintiff, owner of a dilapidated apartment building in defendant City of Asbury Park's Waterfront Redevelopment Zone,*fn1 applied to defendant Planning Board for site plan approval of proposed renovation of the building. Defendant Asbury Park and intervenor Asbury Partners, LLC, the designated Redevelopment Master Developer, objected, contending that under the City's Redevelopment Plan and the City's Agreement with intervenor, plaintiff was required to, but did not, obtain (1) status as a subsequent developer, (2) approval of the Technical Review Committee (TRC), and (3) approval of the Mayor and City Council, before it could proceed with its site plan application. Defendant Planning Board agreed. In effect, it deemed the application incomplete without the necessary approvals. Plaintiff filed a complaint in lieu of prerogative writs to compel the Planning Board to exercise jurisdiction. The judge agreed with defendants and intervenor and dismissed the complaint on summary judgment. On appeal, plaintiff contends that the judge erred because (1) plaintiff was entitled to proceed with its site plan application under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, and the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49, and (2) the redevelopment plan does not apply because it was "merely renovating an existing building," as opposed to a redevelopment project under the Plan. We disagree and affirm.

At the time plaintiff purchased the property, the Waterfront Redevelopment Zone was governed by the provisions of the City's March 2002 Waterfront Redevelopment Plan, adopted by Ordinance 2607, and by the Amended and Restated Redeveloper and Land Disposition Agreement between the City and intervenor. Among the Plan's objectives are the preservation and reuse of historic buildings, and the development of "new residential buildings that are compatible with and extend Asbury Park's special Oceanside character in a contemporary way." The Plan includes Block 159 within the "prime renewal area." It is among the four blocks between First and Fifth Avenues on the east and west, and Kingsley and Bergh Streets on the south and north, in which [a] series of new, small-scale public streets will be developed . . . . These mews, or courts, will be located, approximately, at the midpoint of each block and will be aligned parallel to Kingsley and Bergh Streets. . . . Townhouse dwellings will be organized along the edges of the mews, with the mews serving as entrance courts. Access to interior parking structures will be possible through the mews.

Under the Plan, nine new buildings of varying heights will be constructed on Block 159. There is no setback, so that the "building façades define the street edge." Block 159 will contain 204 dwelling units, with a two-level parking garage in the center.

The Plan delineates the standards applicable to all properties in the zone. It is, as such, the zoning ordinance for that part of Asbury Park. As we observed in Hirth v. City of Hoboken, 337 N.J. Super. 149, 164-65 (App. Div. 2001):

When an area is found to be blighted, the adoption of a redevelopment plan is an independent municipal action which is governed by separate provisions of the Local Redevelopment Law. See Housing Auth. of City of Newark v. Ricciardi, 176 N.J. Super. 13, 21 (App. Div. 1980). N.J.S.A. 40A:12A-7a provides that a redevelopment plan must be "adopted by ordinance" and "shall include an outline for the planning, development, redevelopment, or rehabilitation of the project area[.]" The redevelopment plan must indicate "[p]roposed land uses" for "the project area[,]" N.J.S.A. 40A:12A-7a(2), which "supersede applicable provisions of the development regulations of the municipality or constitute an overlay zoning district within the redevelopment area." N.J.S.A. 40A:12A-7c. Thus, one component of a redevelopment plan is the zoning or rezoning of the redevelopment area.

The Plan itself states: "This document contains all the City zoning and development controls for the Waterfront Redevelopment Area." The LRHL expressly so provides: "[t]he redevelopment plan shall supercede applicable provisions of the development regulations of the municipality or constitute an overlay zoning district within the redevelopment area." N.J.S.A. 40A:12A-7c.

Those zoning and development controls include the following procedural requirements:

All construction projects within the redevelopment area shall receive comments from the TRC prior to submission to the Mayor and Council acting as Redevelopment Agency for the City. Upon conceptual approval by the City of Asbury Park, the Mayor and Council, acting as the Redevelopment Authority, the matter shall then be submitted to the Planning Board for preliminary and final site plan approval, pursuant to statute.

Further, construction projects in the Waterfront Redevelopment Zone are designed to be accomplished through a master developer, presently intervenor. Indeed, when the City adopted the Plan by Ordinance 2607, it rejected a recommendation by the Planning Board that "private property owners have the ...


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