On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. L-4004-05 and L-4705-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Gilroy and Simonelli.
This appeal concerns property owned by plaintiff Teicher American Communities at the Majestic, LLC (Teicher), and located in the Waterfront Redevelopment Area in Asbury Park. Plaintiff Asbury Partners, LLC (Asbury Partners) appeals from the February 27, 2006 Law Division order directing defendant City of Asbury Park (City) to adopt a zoning ordinance governing the property; and from the May 27, 2006 order determining that the property is not subject to the substantive and procedural requirements of the City's 2002 Waterfront Redevelopment Plan (the Plan) and the Amended and Restated Redeveloper and Land Disposition Agreement between the City and Asbury Partners (the Redeveloper Agreement). We reverse.
In lieu of reciting the lengthy history of the City's efforts to redevelop its waterfront, we incorporate by reference the facts set forth in Jersey Urban Renewal, LLC v. City of Asbury Park, 377 N.J. Super. 232 (App. Div.), certif. denied, 185 N.J. 392 (2005) and D&M Asbury Realty, LLC v. City of Asbury Park, Nos. A-3022-03, A-3239-03, A-3240-03 (App. Div. January 24, 2006), certif. denied, 186 N.J. 607 (2006). We highlight the facts relevant to this appeal.
In August 1984, the City adopted a resolution designating approximately two hundred and thirty acres of property between Grand Avenue and the waterfront as a blighted area in need of redevelopment (the Redevelopment Area). In November 1984, the City adopted a redevelopment plan known as the Waterfront Redevelopment Plan, which provided a comprehensive outline for the overall redevelopment of properties located within the Redevelopment Area. The City amended the Waterfront Development Plan in 1987 and 1991.
The City adopted the Plan in 2002. Unlike its predecessor plans, the Plan does not afford individual property owners the unqualified right to redevelop their own properties. Rather, it requires block-by-block redevelopment through a single master developer with the use of "subsequent developers."
The Plan states that it "supersedes and replaces all previous versions of the . . . Waterfront [Redevelopment] Plan. . . . [and] contains all the City zoning and development controls for the Waterfront Redevelopment Area." The Plan also states that "the development controls in this . . . Plan supersede all applicable provisions of all other Asbury Park development regulations including zoning requirements for the prime renewal and boardwalk area."
After the Plan's adoption, the City entered into the Redeveloper Agreement, which reaffirmed Asbury Partners' designation as the exclusive master developer. Section 2.2a provides that "[t]he City will not negotiate or entertain another Redeveloper or Developer in the Redevelopment Area, unless it is a Subsequent Developer, but only as to a party who has entered into a contract with [Asbury Partners] or with its consent." The agreement defines a "Subsequent Developer" as "a purchaser, assignee, or transferee of [Asbury Partners'] rights, interest and/or title in or to part of the Project, subject to the provisions of this Agreement and the Redevelopment Plan[.]"
The Plan divides the Redevelopment Area into three sub-areas: (1) the Renovation/Infill Area; (2) the Prime Renewal Area; and (3) the Boardwalk Area. The principal use within the Redevelopment Area is residential, both single and multi-family dwellings. Permitted conditional uses are live-work dwelling units, retail shops and commercial enterprises, which must be integrated within mixed-use buildings, and certain food-service businesses. Commercial and retail uses are restricted to the ground-floor level. Prohibited uses include any use with a drive-through facility, adult uses, and any freestanding signs.
The redevelopment area involved here is the Prime Renewal Area. The Plan limits construction in this area to 3,164 housing units, to be allocated among new housing units, replacement of existing units, hotel units, and "Ocean Mile Architectural Bonus," and 450,000 square feet of retail space. The new housing is a combination of two and three story townhouses and apartments located between buildings that are four and eight stories tall. As for lot standards, the Plan prescribes, with certain exceptions, a minimum lot area of 15,000 square feet, with a minimum frontage of 100 feet. The Plan also details on- and off-street parking and thoroughfare designations, design principles related to landscape architecture, controls for vehicular and pedestrian traffic, and design for open space, recreation, and community facilities along the boardwalk.
The City may acquire all property within the Prime Renewal Area for redevelopment purposes through eminent domain; however, four properties of historical or artistic significance are conditionally exempt from eminent domain: the Empress Hotel; the Stone Pony; the Berkeley Carteret Hotel; and the Bergh Street Properties. The City can acquire these properties only upon the happening of an eventuality which would undermine their historic or artistic values. For example, the Stone Pony, a musical venue made ...