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62-64 Main Street, LLC and 59-61 Moore Street, LLC v. Mayor and Council of the City of Hackensack

January 14, 2011

62-64 MAIN STREET, LLC AND 59-61 MOORE STREET, LLC, PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS,
v.
MAYOR AND COUNCIL OF THE CITY OF HACKENSACK, DEFENDANTS/CROSS-RESPONDENTS, AND PLANNING BOARD OF THE CITY OF HACKENSACK, DEFENDANT-APPELLANT, AND THOMAS P. KAVANAGH, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6854-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 5, 2010 - Decided Before Judges Wefing, Payne and Koblitz.

On July 11, 2006, the Mayor and Council of the City of Hackensack adopted a resolution requesting that the City's Planning Board conduct a preliminary investigation as to whether the properties located within two adjacent blocks between Main Street and Church/Moore Streets and between East Atlantic Street and Washington Place should be delineated as in need of redevelopment. Public hearings on the matter took place on December 13, 2006, August 22, 2007, September 27, 2007, October 11, 2007, November 8, 2007, December 4, 2007, January 10, 2008, and January 24, 2008. Notices of the hearings were provided pursuant to N.J.S.A. 40A:12A-6b(3) to the last owner of each parcel of property within the area. However, notices to Calo Agostino Real Estate LLC, a property owner in the affected area, were misdirected to 17 Warren Street, Fourth Floor, Hackensack, New Jersey and were not received. Nonetheless, Beverly M. Wurth, an attorney with the law firm of Calo Agostino, P.C., the occupant of the property owned by Calo Agostino Real Estate, attended and participated on behalf of the property owner in all hearings except that conducted on December 4, 2007, as to which she received no actual notice.

At the conclusion of the hearings, by resolution adopted on February 13, 2008, the Planning Board recommended that five lots be designated as in need of redevelopment, including three lots owned by plaintiffs but excluding the lot owned by Calo Agostino Real Estate. The resolution further recommended that the Mayor and Council of the City of Hackensack adopt a resolution delineating the designated portions of the study area as in need of redevelopment, and that a redevelopment plan be prepared.

By resolution dated August 5, 2008, the City Council adopted the Planning Board's recommendations. Plaintiffs charge that the Mayor and Counsel failed to comply with the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21, when passing the resolution.

On September 8, 2008, plaintiffs filed an action in lieu of prerogative writs challenging the Planning Board's recommendation and the Mayor and Council's declaration that plaintiffs' properties were located in an area in need of redevelopment. In the third count of that complaint, plaintiffs alleged that the notice provided by the Planning Board had been defective, and in the fourth count plaintiffs alleged that the Mayor and Council's action was procedurally irregular because no verbatim transcript was made of proceedings in which the action occurred.

At a case management conference held in the matter, the trial judge determined to bifurcate trial of the prerogative writs matter and to proceed first on the issue of notice. Following briefing, the matter was orally argued before the judge. In a written opinion, the judge enumerated the plaintiffs' arguments as follows:

1) that the Mayor and Council failed to provide Plaintiffs with proper notice as required by State and Federal Due Process;

2) that the acts of the Mayor and Council violated the Open Public Meetings Act; and

3) that the notice by the Planning Board was defective and its actions are thus a nullity.

Because the Mayor and Council had voluntarily withdrawn the August 5, 2008 resolution, the judge determined that the issues before him were limited to the notice provided by the Planning Board. Addressing that issue, the judge found that plaintiffs had standing to claim improper notice because of the significant impact of the Planning Board's resolution on them.

Additionally, relying on our decision in Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (App. Div. 2008), the judge found without substantial analysis that notice by the Planning Board was defective and that "therefore the Planning Board's actions are a nullity." An order to that effect was entered. A portion of the order, submitted by plaintiffs, that would have declared the action of the Mayor and Council in adopting and memorializing the August 5, 2008 resolution similarly null and void was crossed off by the judge, who wrote that his changes were "based upon Mayor and Council's voluntary withdrawal of the Resolution dated August 5, 2008."

The Planning Board has appealed from that portion of the order declaring its resolution null and void. Plaintiffs have cross-appealed from the judge's failure to find that the ...


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