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ERETC, L.L.C. v. City of Perth Amboy

November 15, 2005

ERETC, L.L.C., A LIMITED LIABILITY COMPANY OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
CITY OF PERTH AMBOY, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, MUNICIPAL COUNCIL OF THE CITY OF PERTH AMBOY, AND PLANNING BOARD OF THE CITY OF PERTH AMBOY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10151-01.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 14, 2005

Before Judges Fall, Parker and Grall.

In this action in lieu of prerogative writs, plaintiff ERETC, L.L.C. (ERETC) appeals from a final judgment, entered in the Law Division after a non-jury trial, dismissing the complaint challenging the inclusion of plaintiff's property in an area designated as one in need of redevelopment pursuant to the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73, by defendants, City of Perth Amboy (City), the Municipal Council of the City of Perth Amboy (Council) and the Planning Board of the City of Perth Amboy (Planning Board). The following procedural and factual history is relevant to our consideration of the issues presented on appeal.

On April 25, 2001, the Council adopted a resolution directing the Planning Board to conduct a preliminary investigation of underutilized areas in designated sections of the city to determine whether those areas were in need of redevelopment pursuant to N.J.S.A. 40A:12A-6.*fn1 The Council further authorized the Planning Board to prepare a redevelopment plan for those designated areas.

Plaintiff, ERETC, owns a light manufacturing building located on Sayre Avenue in designated Area 1-7 of the proposed redevelopment area. ERETC uses part of the building for its own business and rents the remainder to commercial tenants. The building is in good condition and is 65 to 75% occupied. Approximately 345 people are employed in the building, 75 to 80% of whom live within a five to eight mile radius. Leon Zelcer, a principal of ERETC, was present for and participated in the Planning Board's proceedings on the redevelopment area.

The Planning Board commissioned Helga Crowley, the Executive Director of the Perth Amboy Redevelopment Agency (PARA), to publish notice for a public hearing regarding the proposed redevelopment areas 1, 2 and 3. On June 7, 2001, Crowley faxed a legal notice for the Planning Board's June 25, 2001 hearing to the Home News Tribune newspaper, which circulates in the City and throughout Middlesex County, and the notice was published on June 9, and June 16, 2001. Legal notice was provided to all owners of property within the proposed redevelopment areas via certified mail. Zelcer acknowledged receiving a copy of the notice in the mail before June 15.

The Planning Board designated Michael T. Carr, the City's Planner, to study the proposed areas. On June 15, 2001, Carr submitted a preliminary statement which purportedly provided an initial analysis of whether the statutory criteria of N.J.S.A 40A:12A-5 justified redevelopment in those areas. The statement was intended to assist the public in participating in the hearing process.

In his preliminary report, Carr reevaluated the City's Focus 2000 Redevelopment Plan and noted that "[t]he City is specifically considering the inclusion of properties which are immediately north to the existing Area 1." The proposed expansion of the designated area included plaintiff's property. Carr stated the purpose of the investigation:

The City of Perth Amboy is 94% developed, as based upon the 1990 Master Plan. However, over the past two decades the City's former industrial base has diminished, leaving abandoned, environmentally impaired and/or underutilized properties behind. Therefore, the only significant opportunity for revitalization of the City is through the redevelopment of underutilized land mass. The challenge of the City of Perth Amboy is to provide incentive to property owners to bring these sites to market. The resulting benefits of the City's redevelopment initiatives will include optimal use of available lands, the removal of blight from the City's landscape, and the creation of new jobs and new tax ratables.

Carr's preliminary report included maps and a brief description of the proposed areas. The report recited the statutory criteria for establishing redevelopment areas and a "Preliminary Application of Criteria to Proposed Areas." With respect to Proposed Area 1-7, Carr stated:

[D]ue to the land and nature of development, there has been an excessive amount of land coverage and deleterious land use, with insufficient layout. Also, the area consists of a diverse ownership of real property which will create a growing lack of property utilization and not a fully productive condition of land potentially useful and valuable for contributing to serving the public health, safety and welfare.

Therefore, criteria D & E [of N.J.S.A. 40A:12A-5] apply to this area.

On June 25, 2001, ten days after Carr submitted the preliminary report, the Planning Board conducted a public hearing on the areas proposed for redevelopment. The stated purpose of the meeting was "to listen to any comments and suggestions that may be put forward" regarding potential redevelopment and for the Board to "hold [a] public hearing and make recommendations to the City Council." At the meeting, the Planning Board addressed the expansion of the redevelopment area.

Zelcer participated in the meeting, asking questions and exchanging views with Planning Board members. Leah Healey, attorney for the Redevelopment Agency, responded to Zelcer's question as to how the redevelopment plan would effect the ERETC ...


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