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First Montclair Partner, L.P. v. Herod Redevelopment I

November 15, 2005


On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. ESXL-1539-04.

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



Argued October 24, 2005

Before Judges Alley, C.S. Fisher and Yannotti.

In this appeal, we consider and reject, among other things, a contention that the planning board was governed by a local zoning ordinance in considering a proposed redevelopment project.

The Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73, authorizes municipal governing bodies to implement redevelopment plans in order to improve blighted areas. This purpose has long been recognized as "a modern part of municipal government." Levin v. Tp. Committee of Bridgewater, 57 N.J. 506, 540 (1971); see also Wilson v. Long Branch, 27 N.J. 360, cert. denied, 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed. 2d 104 (1958); Concerned Citizens of Princeton, Inc. v. Bor. of Princeton, 370 N.J. Super. 429, 452 (App. Div. 2004). The LRHL intended that this goal of fostering community redevelopment could be accomplished by the simplification of procedures and the elimination of the obstacles created by the complex of pre-existing local regulations. N.J.S.A. 40A:12A-2.

On September 21, and November 11, 1999, the Council of the Township of Montclair authorized the Montclair Planning Board to conduct a preliminary investigation, pursuant to N.J.S.A. 40A:12A-6, in order to determine whether certain land within the Township needed to be redeveloped. As required by the LRHL, the council adopted a resolution directing the planning board to prepare a redevelopment plan, while retaining the power to adopt or make any necessary changes to the plan. After completion of preliminary investigations and a public hearing, the council passed an ordinance on August 19, 2003 that included the Hahnes property, here at issue, within the redevelopment plan.

On November 12, 2003, defendant Herod Development I (Herod) filed a site plan application and a request for variances for a redevelopment project on the Hahnes property. The planning board conducted a thorough hearing over the course of three days and, at its conclusion, approved the application by adopting a resolution on January 12, 2004.

Forty-five days later, plaintiff First Montclair Partner, L.P. (plaintiff) filed a complaint in lieu of prerogative writs that challenged the planning board's resolution. The complaint named the planning board, the Montclair Parking Authority, and Herod as defendants. After hearing argument on four different occasions, the judge dismissed the complaint.

Plaintiff appealed, chiefly arguing either that the height of the building was not fully appreciated during the planning board hearing or, more importantly, that the proposed structure exceeded the redevelopment plan's height requirements. We reject these contentions.

As to this first point, the trial judge correctly determined that the planning board well understood that the proposed structure consisted of one story below grade (to address parking concerns) and seven above. We need not discuss the minutiae of the lengthy record created by the board to demonstrate there was ample evidence that accurately reflected this fact, and we conclude that the trial judge correctly resolved this issue. Of greater importance is the second point, which raises the legal question of whether the redevelopment plan is governed by or should be interpreted through resort to the local zoning ordinances.

Defendants argue that the application conforms to the redevelopment plan's height restriction of seven stories because what plaintiff claims is the eighth story is below grade. Plaintiff argues that the below grade level should count as a "story" because local zoning ordinance 347-2 so indicates. That ordinance, we are told,*fn1 states:

Where the maximum height is specified by number of stories and by feet, buildings shall comply with both of these height limits. Where parking is contained either within or underneath a building, parking levels even if below grade shall be counted as stories for ...

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