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Powerhouse Arts District Neighborhood Association v. City Council of the City of Jersey City

May 17, 2010

POWERHOUSE ARTS DISTRICT NEIGHBORHOOD ASSOCIATION, PLAINTIFF-APPELLANT, AND MARC N. SIMON, JILL EDELMAN, EVAN GOURVITZ, BRIAN GUSTAFSON, CHARLES KESSLER, THOMAS GRILL, RICHARD JAMES, HARSIMUS COVE ASSOCIATION, RICHARD TOMKO, KATHRYN LEONARD, JOHN GOMEZ, AND JOSHUA PARKHURST, PLAINTIFFS-RESPONDENTS,
v.
CITY COUNCIL OF THE CITY OF JERSEY CITY, 134 BAY STREET, L.L.C.,*FN1 AND 126-142 MORGAN STREET URBAN RENEWAL, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2756-08.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 13, 2010

Before Judges Parrillo, Lihotz and Ashrafi.

In an action in lieu of prerogative writs, plaintiff Powerhouse Arts District Neighborhood Association (PADNA or plaintiff) and others challenged a redevelopment plan amendment proposed by defendants 134 Bay Street, L.L.C. and 126-142 Morgan Street Urban Renewal (developers), and adopted by defendant City Council of the City of Jersey City (Council). Following a hearing on the record developed before the Council and Planning Board (Board), the Law Division upheld the amendment's adoption. Plaintiff appeals, arguing that the court applied the incorrect standard of review, that the amendment was so fundamentally contradictory to the original plan adopted only four years earlier that it should fail under any standard of review, and that lots blighted years earlier were improperly included under the plan without any evaluation of whether they remained in need of redevelopment. We reject these arguments and affirm.

By way of background, in 2004, Council designated a sizeable area in downtown Jersey City, populated largely with vacant, though historically significant, industrial buildings, as in need of redevelopment pursuant to the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73. That area constitutes the bulk of what is now the Powerhouse Arts District (PAD), envisioned as a district preserving the historical character of the area and providing ample and affordable living and working space for artists. Council had already begun zoning the area and encouraging its development to that effect pursuant to the Work and Live District Overlay Zone (WALDO) ordinance adopted in 1996 and its successor, WALDO II, in 2001.

After the redevelopment designation, Council promptly adopted a redevelopment plan covering not only the PAD study area that had recently become blighted, but also several adjacent lots that were included in the Bay Street Area Redevelopment Plan adopted twenty-nine years earlier. The properties that were shifted to the PAD redevelopment plan --Block 172, Lots A through D and Block 171 (the Manischewitz lots) -- were properly blighted pursuant to the LRHL's predecessor statute.*fn2 These industrial lots were purposely excluded from WALDO and WALDO II to encourage Manischewitz to continue its operations there, though the lots now lie vacant and unused.

The PAD redevelopment plan largely followed the recommendations of an Urban Land Institute (ULI) report commissioned by the city and emphasized the development of "a vibrant neighborhood with primary emphases on the arts, entertainment and culture," as well as preservation of existing industrial structures. Although the district included a high-rise zone, it was otherwise divided between a rehabilitation zone "designed to accommodate the adaptive re-use of the existing historic resources in the district[,]" and a transition zone designed as a buffer. The plan was amended three times in as many years, most notably when the Powerhouse Arts Residence Zone was introduced within the PAD to accommodate high-rise structures as part of a settlement of federal court litigation.

In the fall of 2007, developers 134 Bay Street and 126-142 Morgan Street Urban Renewal, who owned, within the PAD, the Manischewitz lots and Block 140, respectively, proposed a plan amendment creating an Arts Theater Residence Overlay Zone (ATROZ) covering those lots and the cobblestone public right of way sandwiched between Blocks 140 and 171.*fn3 The amendment primarily relaxed existing height and density requirements to accommodate the developers' planned high-rise structures, but was conditioned on the construction of a 550-seat non-profit performing arts theater with exhibition space, an artist-in-residence unit, a parking lot for the theater and surrounding neighborhood, an art-themed public plaza reusing cobblestones from the existing public right of way and workforce housing or a per-unit financial contribution. Furthermore, the developers would be responsible for an "arts contribution" of up to $1.1 million dedicated to funding operation of the theater and other "arts-related uses" within the ATROZ. Pursuant to the proposal, existing structures would be demolished, except only the façade of the historic A & P Annex building on the Manischewitz lots, which would be preserved and restored.

The Board scheduled a public hearing on the amendment, and appropriate public notice was published in a local newspaper, The Jersey Journal. At the November 27, 2007 hearing, the developers presented expert testimony from an architect, who explained the proposal itself and, briefly, how the planned development would fit in with the surrounding area. Particularly, the witness discussed in some detail the proposed structures' heights and their consistency with those of the existing or proposed adjacent developments and, to that end, presented the results of a study analyzing the shadow that would be cast by the proposed development throughout the year.

The developers also produced a professional planner, who testified about the extent to which their proposal was consistent with Jersey City's master plan, advanced the goals of the existing PAD plan and conformed with recommendations in the ULI report on which that plan was based. Specifically, the expert discussed how the privately developed public plaza and "pocket park" with surrounding retail and arts-related facilities would further the goal of developing a mixed-use area suitable for pedestrian use and enjoyment, as well as how the theater would serve as a "major arts anchor" for the area. While acknowledging that the proposal departed from the PAD's intention that redevelopment be dedicated to work/live residential units, a portion of those affordable and available exclusively to artists, the expert explained that the proposed development would nonetheless include some middle-income residential units available, albeit not exclusively, to artists.

Plaintiff presented its members, members of other advocacy groups and other residents of the neighborhood, as well as experts in architecture and professional planning. Those witnesses testified to the historical background of the PAD and its redevelopment, to the goals set forth in the initial PAD plan pursuant to the ULI's recommendations and to the extent to which the existing plan has succeeded. They further testified, many based on their personal experiences of having lived in the area, to what they believe is a drastic incongruence between, on the one hand, the developers' proposal and, on the other hand, both the development that was envisioned in the initial PAD plan and what residents expected when they moved to the area.

The hearing was continued to January 16, 2008, to hear testimony from Robert Cotter, Director of the Jersey City Division of City Planning. Based largely on his experience and personal knowledge of those matters, Cotter recounted the factual background of the PAD's redevelopment and its progress, and then addressed inconsistencies between the developers' proposal and the master plan, as well as the benefits and drawbacks of the proposal, in light of that background. In his view, although the demolition of all but the fa├žade of the A & P Annex building, as well as the construction of high-rise buildings in the area, would run afoul of the historic preservation element of the master plan, the proposal's ...


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