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CD Development, LLC v. City of Newark

August 26, 2010

CD DEVELOPMENT, LLC, PLAINTIFF-RESPONDENT,
v.
CITY OF NEWARK, MUNICIPAL COUNCIL OF THE CITY OF NEWARK, DEFENDANTS, AND CENTRAL PLANNING BOARD OF THE CITY OF NEWARK, DEFENDANT-RESPONDENT.
MORRIS FAIRMONT ASSOCIATES, LLC, INTERVENOR-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5716-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 16, 2009

Before Judges Graves, Sabatino and Harris.

Intervenor Morris Fairmont Associates, LLC, a designated redeveloper for the City of Newark, appeals from a final judgment of the Law Division entered in favor of plaintiff, CD Development, LLC, on May 30, 2008. The judgment determined that plaintiff's property was incorrectly designated as an "area in need of redevelopment" under the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73, and vacated the portions of a resolution adopted by the Municipal Council of the City of Newark (the City Council) that classified plaintiff's property as in need of redevelopment. The judgment was entered, however, without prejudice to any future determination by the City Council "that satisfies the statutory criteria of the LRHL and the controlling case law." For the reasons that follow, we affirm.

Plaintiff is the owner of five acres of land in the City of Newark. The land is designated as Lot 82 and Lot 84 in Block 2438 on the City's tax map. The land is used as an active trucking facility. In 2004, the City Council authorized the Central Planning Board of Newark (the Planning Board) to investigate whether eight parcels of land totaling 22.34 acres, qualified as an area "in need of redevelopment" under the LRHL. The eight properties are designated as Lots 74, 76, 78, 80, 82, 84, 85, and 92 in Tax Block 2438 (the study area).

On March 11, 2005, Mark G. Barksdale (Barksdale), a licensed professional planner and Acting Director of the Newark Department of Economics and Housing Development, presented a report to the Planning Board. Barksdale noted that the properties in the study area were "located within the City's East Ward" and described the area as follows:

This Ward contains parts of the Central Business District, Newark Liberty International Airport, Port Newark, North Ironbound and South Ironbound neighborhoods, as well as a small portion of the South Broad Street neighborhood. While the Land Use Element notes that the area adjacent to the Newark Liberty International Airport is one of the City's most rapidly redeveloping areas, there are many isolated, vacant parcels and underutilized industrial tracts scattered throughout this area. Aside from the Airport, stable industrial areas in Newark are located close to highway and seaport access, which are the other two dominant modes of cargo transportation in Newark, including the New Jersey Turnpike, US Routes 1 & 9, Interstate 78 and the Passaic River and Port Newark.

The Barksdale report applied the criteria of N.J.S.A. 40A:12A-5 to plaintiff's property and found that it was an "area in need of redevelopment" based on subsection (e), which describes land with the following characteristics:

A growing lack or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real property therein or other conditions, resulting in a stagnant or not fully productive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare.

[N.J.S.A. 40A:12A-5(e).]

Barksdale's specific findings with regard to plaintiff's property were as follows:

This site consists of Lots 82 and 84. The improvements are located, for the most part, on Lot 82, and the company is still in operation. The remaining portions of the site hold old, broken down trucks and trailers. Extensive portions of the site are paved. The improvement-to-land ratio exhibits the economic productivity of the property, and ratios of less than 2:1 offer evidence of underutilization. For example, the site improvements of the property are valued at $990,300, versus a total assessed value of $2,316,200, which accounts for an improvement ratio of 43%. Ideally, the value of improvements should [be] at least equal to the value of the land itself . . . . The property is also actively listed on the NJDEP's Known Contaminated Sites list since April 1999.

These conditions indicate a lack of proper utilization of land causing a stagnant and not fully productive condition of otherwise valuable property that could potentially be useful and valuable for contributing to and serving the ...


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