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Robert Krebs v. the City of Long Branch

December 16, 2011

ROBERT KREBS, PLAINTIFF-APPELLANT,
v.
THE CITY OF LONG BRANCH, A NEW JERSEY MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1316-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 14, 2011

Before Judges Axelrad, Sapp-Peterson and Ostrer.

Plaintiff, Robert Krebs, appeals the trial court order granting summary judgment to defendant, City of Long Branch ("City"), and dismissing his complaint arising out of his challenge to the City's adoption of the January 2010 Ordinance and Resolution approving a redevelopment project in an area known as Beachfront South. Plaintiff also appeals the denial of his summary judgment motion. In granting summary judgment to defendant, Judge Lawrence Lawson found plaintiff failed to exhaust his administrative remedies, his action was time barred, and his substantive challenges to the ordinance were unsupported by the law. In denying summary judgment to plaintiff, Judge Lawson found that plaintiff's substantive arguments were not only irrelevant, since plaintiff had failed to exhaust his administrative remedies, but the contentions were either lacking in merit or not ripe for summary judgment. We affirm.

Plaintiff is the owner of a single-family home in Beachfront South. He purchased the property in 2000, four years after the City adopted its Oceanfront-Broadway Redevelopment Plan ("Plan"), which included the Beachfront South area. Plaintiff purchased the property "with the intention of residing in it, improving it or redeveloping it consistent with normal municipal land use laws and ordinances." At the time, he was aware the property was located in an area designated as in-need-of-redevelopment. His property, although in need of repairs, was nonetheless habitable.

The in-need-of-redevelopment designation resulted from adoption of the Plan in 1996. Notwithstanding its adoption and the City's subsequent entry into an agreement with a developer to implement the Plan, redevelopment has not occurred. There have, however, been a number of amendments to the Plan, including a January 26, 2010 resolution amending and supplementing Chapter 345-10 of the City's land use ordinances to clarify the design guidelines for redevelopment zoning in the Beachfront South sub-area, which area included plaintiff's property. This resolution followed a number of discussions between Beachfront South property owners and the City's planning team. The resolution specified that existing structures not in conformity with redevelopment guidelines may remain non-conforming, but any additions to those structures required compliance with certain conditions.

On January 27, 2010, the City adopted Resolution No. 10-10, eliminating the use of eminent domain for the Beachfront South redevelopment sub-area. The resolution indicated the City had "determined that an overwhelming majority of property owners now wish to develop and/or sell their properties within the development rights and restrictions spelled out in the City's Redevelopment Design Guidelines[.]" The resolution stated further that "eminent domain shall not be used for property acquisition in the Beachfront South" sub-area.

On March 12, 2010, plaintiff filed a complaint and jury trial demand*fn1 alleging one count of "invalid and unconstitutional blight and in[-]need[-]of[-]redevelopment designation"; a second count claiming "unconstitutional use of power authorized by [the] blighted areas clause"; a third count charging "illegal use of local redevelopment and housing law"; a fourth count challenging, as unconstitutional, the "in[-]need[-]of[-]redevelopment designation"; and a fifth count alleging "unconstitutional unequal treatment of private redevelopers and residents." Plaintiff sought a declaration that his property, as well as the Beachfront South Area, are "not 'blighted' or 'in need of redevelopment,'" and an order vacating that designation. Plaintiff also sought to "[e]njoin the City from exercising any powers of the [LRHL*fn2 ] with respect to the [property] or the Beachfront South Area[,]" as well as damages and other relief as the "interests of justice may require."

The City filed an answer denying the allegations in the complaint and asserting affirmative defenses, including statute of limitations, laches, estoppel, and plaintiff's failure to exhaust his administrative remedies. Both sides subsequently moved for summary judgment.

In support of the City's motion, Howard H. Woolley, Jr. ("Woolley"), Business Administrator, certified that over a one-year period, beginning in August 2008, the City held public hearings with Beachfront South property owners to discuss concerns about the Plan. As a result of those meetings, the City "determined that the major concern of Beachfront South property owners was the potential use of eminent domain" and that "their interests in the use and value of their properties [were] better served by maintaining the . . . Plan zoning[.]" Woolley stated that at the final November 2009 meeting, "plaintiff (and plaintiff alone) expressed his disagreement." Woolley also indicated that after the City adopted the January 2010 resolution and ordinance, "the City and Planning Board . . . approved a redevelopment project in Beachfront South for the development of [eleven] townhome units" and the City entered into negotiations with developers interested in pursuing projects. Woolley stated further that plaintiff "never made any proposals to the City to develop the [p]roperty and has never submitted any applications for development approvals to the City." Krebs did not dispute that he failed to submit any applications for development approval.

Judge Lawson issued a written opinion and order granting the City's motion and denying plaintiff's motion. In granting relief to the City, the judge first found that plaintiff lacked standing to initiate an action pursuant to Rule 4:69 because he failed to exhaust his administrative remedies and also failed to raise an "actual" and "justiciable claim." Specifically, the judge noted that plaintiff failed to present any "tangible evidence" of any development plans he pursued in connection with his property, the City's knowledge of these plans, and any action by the City precluding plaintiff from going forward with his plans on the basis that they were inconsistent with the redevelopment scheme.

Judge Lawson additionally concluded that "because

[p]laintiff has not taken any action with respect to his property which could have led to an adverse administrative determination by the City, he has failed to establish the existence of a justiciable claim for adjudication and therefore lacks standing[.]" Further, the judge reasoned that because plaintiff failed to demonstrate "how the City's alleged unconstitutional actions caused any actual injury[,]" the record was devoid of any ...


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