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New Horizon Investment Corp. v. Mayor and Municipal Council of the Township of Belleville

October 16, 2009


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3898-04.

Per curiam.


Submitted September 21, 2009

Before Judges Lisa, Baxter and Alvarez.

This is a land use dispute. Plaintiffs, New Horizon Investment Corp. (New Horizon) and Azan International, Inc. (Azan), each own a vacant lot in the Township of Belleville. The lots are contiguous to each other and, along with other parcels to which they are contiguous, comprise a tract that Belleville has designated as in need of redevelopment under the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49. Plaintiffs contend that any land use restrictions created by the redevelopment plan did not supersede the underlying residential zoning applicable to their lots, but merely constituted overlay zoning. Belleville takes the contrary view.

In any event, plaintiffs never submitted any development plan, sought any approvals, requested any interpretations of the zoning map or ordinance, or applied for any variances. Instead, they brought this action in lieu of prerogative writs. In their summary judgment motion, they sought a judicial declaration that the redevelopment plan constituted only an overlay zoning district, that the underlying residential zoning was not superseded, and that any development application plaintiffs might submit must be reviewed under the regulations pertaining to the underlying residential zone.

Judge Leath concluded that plaintiffs were not entitled to the relief they sought because they failed to exhaust available administrative remedies. On that basis, she dismissed the complaint.

Plaintiffs argue that (1) the judge erred in declining to exercise jurisdiction because the exhaustion of administrative remedies doctrine is inapplicable to this question of law, (2) because Belleville failed to explicitly amend its zoning map at the time of adoption of its redevelopment plan, any zoning regulations contained in the redevelopment plan merely overlay, but do not supersede, the underlying residential zoning regulations, and (3) Belleville cannot circumvent improper implementation of the redevelopment plan by virtue of an "unlawful settlement agreement" in a separate lawsuit in which plaintiffs were parties, but in which plaintiffs did not join in the settlement agreement. We reject plaintiffs' first argument. We agree with Judge Leath's conclusion that plaintiffs are barred from the relief they sought because they failed to exhaust available administrative remedies. We therefore affirm the order under review. Because of this disposition, we find it unnecessary to decide the second and third issues raised by plaintiffs.


Lal Pathen is the principal of New Horizon. His son, Kaiser Pathen, is the principal of Azan. Plaintiffs' properties are located at the intersection of two major streets in Belleville, Belleville Avenue and Franklin Avenue. Their lots consist of about seven-and-one-half acres of open space commonly known as the "Great Lawn" for the former Essex County Geriatric Center. The Geriatric Center building is a nine-story hospital building, situated on a hill and surrounded by some accessory buildings and open space. It was built in the 1930s, and the building and its surrounding property is a prominent feature in Belleville. In the late 1980s, operations at the Geriatric Center ceased, and the building became vacant.

Although earlier zoning permitted uses such as the Geriatric Center, in 1979 the zoning for this property was changed to R-A-2, which permitted single family homes and home professions, but did not permit hospital facilities. Therefore, after the 1979 zoning change, the Geriatric Center operated as a nonconforming use.

In 1993, the Center for Molecular Medicine and Immunology (CMMI) expressed an interest in establishing a research center in the old Geriatric Center. The Belleville Municipal Council (Council) directed the Belleville Planning Board to consider whether an 18.59 acre portion of the thirty-four acre Geriatric Center property constituted an area in need of redevelopment under the LRHL. The Planning Board conducted proceedings and concluded that the parcel qualified. The Planning Board recommended that the Council declare that portion of the property to be in need of redevelopment and adopt a redevelopment plan.

On May 11, 1993, the Council passed a resolution which deemed the 18.59 acre portion of the tract "an area in need of redevelopment" under the LRHL. On June 22, 1993, the Council adopted Ordinance No. 2607-A, which approved the redevelopment plan, which, along with a map depicting the zoning change for the area, was attached to the ordinance. The map, entitled "PROPOSED ZONING MAP," reflected the R-DV zoning designation recommended by the Planning Board in the redevelopment plan, which stated:

The designation proposed is R-DV and is shown on the Map RP-1, entitled "Amendment to Zoning Map" included in the Appendix of this Plan. The zoning text would then be amended to reflect the establishment of a new district subject to the regulations and conditions specified in the adopted plan.

The redevelopment plan divided the area into three parcels. The first consisted of the hospital building and the land upon which it stands. The second was the superintendent's residence and its surrounding land. The third was the remaining land within the redevelopment area, which included plaintiffs' lots. The plan provided that parcel one would be redeveloped and sold to CMMI; parcel two would either be converted to medical offices or other uses to support the use of parcel one, or be demolished; parcel three was designated for "[o]pen space, passive recreation (such as sitting, strolling, bike-riding), playgrounds, access to and accessory parking for the uses on Sites 1 and 2." Construction on parcel three would be limited to roadway improvements, such as drainage, paving, lighting and expansion of accessory parking areas, and installation of landscaping and such items as may be appropriate to recreational uses.

The redevelopment plan stated that it was consistent with the goals and objectives of Belleville's 1988 Master Plan, including "preservation of open space [and] rehabilitation of non-residential uses," and that its "only inconsistency" was with the existing zoning designation of the site as R-A-2. The plan contained the following statement: "The legislation therefore provides for the Redevelopment Plan to supersede applicable municipal development regulations."

The plan designated the Essex County Improvement Authority (ECIA) as the redevelopment entity, which would be empowered to lease or convey property in the redevelopment area. By 1995, ECIA leased parcel one, containing the former hospital building, to CMMI, which then occupied the building and has used it as a cancer ...

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