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Enclave Condominium Association v. City of Atlantic City

February 21, 2008

ENCLAVE CONDOMINIUM ASSOCIATION, PLAINTIFF-APPELLANT,
v.
CITY OF ATLANTIC CITY, DEFENDANT-RESPONDENT, AND ATLANTIC 17, L.L.C., DEFENDANT/INTERVENOR-RESPONDENT.
ENCLAVE CONDOMINIUM ASSOCIATION, PLAINTIFF-APPELLANT,
v.
PLANNING BOARD OF THE CITY OF ATLANTIC CITY, DEFENDANT-RESPONDENT, AND ATLANTIC 17, L.L.C., DEFENDANT/INTERVENOR-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket Nos. L-97-05PW and L-3280-05PW.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 28, 2008

Before Judges S.L. Reisner and Baxter.

Plaintiff Enclave Condominium Association (Enclave) appeals from a January 12, 2007 order that dismissed its complaint challenging the: (1) adoption of a redevelopment ordinance by the City of Atlantic City (the City); and (2) the issuance of preliminary and final site plan approval for the project in question by the Planning Board. Enclave also appeals from an April 24, 2007 order that denied its motion for reconsideration. We affirm.

I.

This appeal requires us to decide whether the City validly adopted a redevelopment plan pursuant to the requirements of the Local Redevelopment and Housing Law (the LRHL), N.J.S.A. 40A:12A-1 to -49. Enclave seeks to invalidate Ordinance 135, approved on November 23, 2004, which adopted a redevelopment plan for the Roosevelt-Seedorf redevelopment area. Enclave also challenges the validity of the preliminary and final site plan approval issued by the Planning Board on March 2, 2005 to intervenor Atlantic 17, L.L.C., which the City designated as the developer. Enclave filed separate complaints in lieu of prerogative writs against the City and the Planning Board, which were consolidated in the Law Division and remain consolidated on appeal.

The City's actions in adopting the redevelopment plan for the Roosevelt-Seedorf area originated with an ordinance adopted by the City in 1994. Consequently, we begin our review of the undisputed facts with the Planning Board's and City Council's (Council) actions in 1994.

On November 2, 1994, Council adopted Resolution 791, in which it requested the Planning Board to analyze whether the City of Atlantic City was "an area in need of rehabilitation" under N.J.S.A. 40A:12A-14(a).

In response to Council's request, the Planning Board adopted Resolution 24-94, which found the entire City was an "area in need of rehabilitation," and recommended that the governing body of the City conclude likewise. Planning Board Resolution 24-94 was based on a report of May 5, 1994 authored by Stuart B. Wiser, the City's Planning Director. Wiser had been asked to determine whether any or all of the City qualified as an area in need of rehabilitation. After conducting research and completing a study, Wisner concluded that the entire City qualified. Wiser's conclusion was based on his analysis of three criteria: underutilization of properties, vacant structures, and deteriorated or substandard structures.

After receiving and reviewing Planning Board Resolution 24-94, Council passed Resolution 889 designating Atlantic City, in its entirety, as an "area in need of rehabilitation." The validity of that resolution was upheld in Bryant v. City of Atlantic City, 309 N.J. Super. 596, 614-16 (App. Div. 1998). We held that Resolution 889 was supported by substantial evidence and there was an appropriate factual basis for the City to have reached the conclusions it did when it adopted the resolution in question. Ibid.

Nearly ten years later, on September 22, 2004, Council adopted Resolution 753, which stated:

A certain portion of the City of Atlantic City extending generally from the Boardwalk to Atlantic Avenue and from Roosevelt Place to John A. Seedorf Lane, exclusive of "The Enclave" condominium, is particularly in need of rehabilitation and/or redevelopment by reason of vacant land, obsolete and/or vacant building and similar conditions . . .

Resolution 753 directed the Planning Board to review the City's Master Plan and submit a report and recommendation to Council.

In response to that mandate, the Planning Board directed the City's Division of Planning (Division) to study that issue. On October 1, 2004, the Division issued a report recommending that the "Planning Board make a finding of consistency between the [Roosevelt-Seedorf] Redevelopment Plan and the Master Plan." Specifically, the Division's report listed the shared goals of both plans, such as improving the quality and character of Atlantic City housing and increasing the availability of housing. After reviewing the Division's October 1, 2004 report, the Planning Board passed Resolution 30-2004, concurring with the findings of the Division of Planning.

The Redevelopment Plan was ultimately adopted by Council pursuant to Ordinance 135, which was approved on November 23, 2004. Ordinance 135 (Redevelopment Plan) begins by noting that "the finding of an 'area in need of rehabilitation' is a prerequisite for the adoption of a Redevelopment Plan." The Redevelopment Plan describes the affected area and its condition as follows:

The project Area consists of approximately 3.2 acres. In large part with the exception of several occupied low-rise residential buildings, the Project Area contains vacant, underutilized property with structures that are obsolete and in disrepair. The vacant buildings are aged, dilapidated and are substandard with respect to current building codes. There is little if any landscape or other streetscape improvements and it includes a large unimproved parcel which has remained stripped and vacant for several years.

These detrimental conditions have existed for many years without improvement and are likely to remain, ...


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