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247 Manila Avenue, LLC and 212 Marin Boulevard, LLC v. Jersey City Zoning Board of Adjustment

December 2, 2010

247 MANILA AVENUE, LLC AND 212 MARIN BOULEVARD, LLC, PLAINTIFFS-RESPONDENTS,
v.
JERSEY CITY ZONING BOARD OF ADJUSTMENT, AND
BARBARA A. NETCHERT, IN HER CAPACITY AS ZONING OFFICER OF THE CITY OF JERSEY CITY, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4883-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued telephonically October 22, 2010

Before Judges Carchman and Waugh.

Defendant Jersey City Zoning Board of Adjustment (Board) appeals the judgment of the Law Division overturning its affirmance of the Jersey City zoning officer's interpretation of the applicable zoning of two properties owned by plaintiffs 247 Manila Avenue, LLC (Manila LLC), and 212 Marin Boulevard, LLC (Marin LLC). We affirm.

I.

We discern the following facts and procedural history from the record.

A.

Plaintiffs are related limited liability companies, which acquired the two easternmost sections of property formerly owned by the Consolidated Rail Corporation (Conrail) in Jersey City.*fn1

Manila LLC acquired the block known as 441-447 Manila Avenue, and Marin LLC acquired the block known as 437 Luis Munoz Marin Boulevard. Both properties contain sections of the Sixth Street Embankment (embankment), which was constructed between 1895 and 1905 to provide rail access to the Jersey City waterfront. The embankment consists primarily of stone walls used to elevate the rail line, and is approximately 100 feet wide and spans six city blocks. The tracks and the bridges connecting portions of the embankment intersected by cross streets were removed after the rail line was decommissioned in 1995.

B.

Because the history of redevelopment plans in the area is relevant to this appeal, we outline the planning and development background of the areas involved in this appeal. In 1975, Jersey City's governing body, the Municipal Council, adopted the "Grove Street NDP Area Redevelopment Plan" (Grove Street Plan) and the "Luis Munoz Marin Boulevard Redevelopment Plan" (Marin Plan) for the purpose of rehabilitating designated areas of land. After the Grove Street was adopted, the street was renamed Manila Avenue, but the Plan itself was not renamed.

Both of the redevelopment areas run north to south and each encompasses a portion of the embankment, which runs east to west. The Grove Street Plan area is between Erie Street and Manila Avenue. The Marin Plan area is between Manila Avenue and Marin Boulevard. The Grove Street Plan includes 441-447 Manila Avenue, and the Marin Plan includes 437 Marin Boulevard.

The Grove Street Plan refers to five permitted land uses in the redevelopment area: (1) thoroughfares and streets; (2) public use; (3) semi-public use; (4) residential use; and (5) commercial use. The Marin Plan mentions three permitted uses: (1) residential use; (2) public and quasi-public use; and (3) railroad use "as per the current activity." It included "[a]additional regulations, controls or restrictions" for the residential, public and quasi-public uses, but not for the railroad use. Although other property was to be acquired as part of the plans, neither plan proposed the acquisition of the railroad property.

In 1998, Jersey City's Planning Board issued the "Report Concerning the Determination of the Proposed Sixth Street Study Area as 'An Area in Need of Redevelopment.'" The Sixth Street area, which runs east to west, consists of the former railroad right-of-way, including the properties at issue in this appeal. The report suggested that those two properties "be taken out of [the Grove Street and Marin Plans] and made part of the Sixth Street Study area and Sixth Street Redevelopment Plan area." In a subsequent resolution concerning the findings of the report, the Jersey City Planning Board noted that "the area is presently ...


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