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Lester M. Entin Associates v. Town of Harrison

August 28, 2009

LESTER M. ENTIN ASSOCIATES, PLAINTIFF-APPELLANT,
v.
TOWN OF HARRISON, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; HARRISON PLANNING BOARD, A DEPARTMENT/AGENCY OF THE TOWN OF HARRISON AND HARRISON REDEVELOPMENT AGENCY, AN INSTRUMENTALITY OF THE TOWN OF HARRISON, DEFENDANTS-RESPONDENTS.
LESTER M. ENTIN ASSOCIATES, PLAINTIFF-APPELLANT,
v.
HARRISON PLANNING BOARD, A DEPARTMENT/ AGENCY OF THE TOWN OF HARRISON; RED BULL STADIUM, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY AND RED BULL PARK, L.L.C., DEFENDANTS/RESPONDENTS.
LESTER M. ENTIN ASSOCIATES, PLAINTIFF-APPELLANT,
v.
ADVANCE AT HARRISON, L.L.C., A NEW JERSEY LIMITED LIABILITY COMPANY; HARRISON REDEVELOPMENT AGENCY, AN INSTRUMENTALITY OF THE TOWN OF HARRISON; HARRISON PLANNING BOARD, A DEPARTMENT/ AGENCY OF THE TOWN OF HARRISON AND RED BULL STADIUM, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket Nos. L-1850-07, L-3188-07 and L-4130-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 28, 2009

Before Judges Skillman, Graves and Grall.

Plaintiff Lester M. Entin Associates filed three actions in lieu of prerogative writs to challenge the Town of Harrison Planning Board's approval of three individual applications for development of properties situated in Harrison's Waterfront Redevelopment Area. The applications were filed by the Harrison Redevelopment Agency (Agency), Red Bull Stadium, L.L.C., and Advance at Harrison, L.L.C. (Advance). The trial court consolidated the actions and ultimately upheld the Board's approvals and dismissed Entin's complaints.

A central feature of Harrison's Waterfront Redevelopment Plan is a stadium that will serve as the home of a professional soccer team. The Plan designates the Stadium District and it also includes a Mixed Use and Residential District. Entin owns property adjacent to but not included in the redevelopment zone, on which a commercial warehouse is in operation.

The Agency applied for approval of a minor subdivision of Lot 1.01, Block 174, known as 600 Cape May Street. The 14.84- acre lot is within the redevelopment zone's stadium and mixed use and residential districts. The agency sought to establish two lots - Lot 1.02, a 12.34-acre parcel, which the Agency anticipated using as the site of the stadium, and Lot 1.03, a L-shaped lot with an area of 2.50 acres. No variances or waivers were sought or required.

The Board considered and approved the Agency's application for minor subdivision approval at a hearing held on February 8, 2007. Prior to the Board's vote, Entin's attorney challenged the Board's jurisdiction. Because the Agency intended to use Lot 1.03 as part of a network of roadways in the redevelopment zone, Entin contended that the Agency's application should be treated as one for approval of a major subdivision, requiring public notice pursuant to N.J.S.A. 40:55D-11. See N.J.S.A. 40:55D-5 (defining major and minor subdivisions). The roadway network for the redevelopment zone is included in the Redevelopment Plan. Based on the limited approval the Agency sought, the Board rejected Entin's claim. At the same meeting, the Board commenced its consideration of Red Bull's application for preliminary and final major site plan approval of the A-4011-07T2 stadium property. The application erroneously stated the applicant's name as "Red Bull Park, L.L.C."

Testimony and evidence were admitted on that date and on February 28, March 13, and March 28, 2007. The Board heard from Red Bull's President and its architect, professional engineer and traffic engineer, and the Agency's Chairman. Entin's fire and safety consultant also testified. The Board received and considered reports from the Town Planner and Engineer, Chiefs of Police and Fire and Health Officer, the Board's Engineer and Traffic Consultant, and Red Bull's civil and traffic engineers.

In addition, consultants retained by Entin submitted reports discussing, among other things, safety concerns inherent in the Redevelopment Plan's location of a stadium in close proximity to a gas storage facility operated by PSE&G and the potential for crowd violence and terrorism, which the Board submitted to town officials with responsibility for the subjects addressed. Those officials provided comments and recommended some amendments to Red Bull's site plan.

Red Bull sought waiver of standards included in the Plan restricting the location of "loading areas" and requiring "cornices," surface parking "screened from view," a specified percentage of lot frontage "occupied by building face," and a specified percentage of "glazed" fenestration.

The Redevelopment Plan, as noted above, provides a proposed road network for the zone. Although the Plan specifies that the stadium should be a "visual landmark," it expressly allows "a great deal of flexibility . . . in terms of design." With respect to parking, the Plan requires one space for each six seats. That parking may be on the site or off and may include parking facilities that are "shared" with other entities.

The Board approved Red Bull's site plan on March 28, 2007 and adopted its Resolution on May 9, 2007. The Board's comprehensive findings address the roadway network to be improved by Advance and set forth in an application pending before the Board and on file for public review, and parking on site and at ten off-tract locations, including spaces reserved for the handicapped. In addition, the Board made findings relevant to fences and walls, lighting, landscaping, stormwater management, utilities, signs, public art and traffic, including pedestrian traffic.

With respect to deviations from the Redevelopment Plan design standards the Board made these findings:

143. The Redevelopment Plan allows deviations from design standards relating to a "specific piece of property" in situations in which the deviation will advance the purposes of the Redevelopment Plan and the benefits of the deviation substantially outweigh the detriments. See Redevelopment Plan at Page 29.

144. The Property that is the subject of this application is the only parcel in the Redevelopment Area designated for use as a stadium. The Property's unique zoning, as well as its particular size, shape and location within the Redevelopment Area are at the core of the reasons justifying deviations from Redevelopment Plan design standards.

(1). No Property Frontage Occupied by

Building Face

145. The requirement that a least 50% of lot frontage be occupied by building face applies throughout the Redevelopment Area and is not specific to the Stadium District.

146. The deviation from the requirement is essential in order to provide plaza areas around the Stadium for pedestrian gatherings in advance of games and events, pedestrian queuing as fans enter the Stadium, and safe pedestrian exiting following a game or during an emergency.

147. The Redevelopment Plan allows "a great deal of flexibility . . . in the [Stadium District] in terms of design." Redevelopment Plan at Page 34. It also specifically contemplates large outdoor plaza areas. See Redevelopment Plan at Page

34. Granting this requested deviation will thus promote both the design purposes of the Stadium District as well as public safety and convenience. The benefits of the deviation will substantially outweigh any ...


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