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R. Neumann & Co. v. City of Hoboken

Superior Court of New Jersey, Appellate Division

September 23, 2014

R. NEUMANN & CO., Plaintiff-Appellant,
v.
CITY OF HOBOKEN, CITY COUNCIL OF THE CITY OF HOBOKEN, DAWN ZIMMER, MAYOR OF THE CITY OF HOBOKEN, and PLANNING BOARD OF THE CITY OF HOBOKEN, Defendants-Respondents

Argued December 4, 2013

Approved for Publication September 23, 2014.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6146-11.

Peter D. Dickson argued the cause for appellant ( Potter and Dickson, attorneys; R. William Potter and Mr. Dickson, on the brief).

Ronald D. Cucchiaro argued the cause for respondents ( Weiner Lesniak, LLP, attorneys; Mr. Cucchiaro, of counsel and on the brief; Richard Brigliadoro, on the brief).

Before Judges GRALL, NUGENT and ACCURSO. The opinion of the court was delivered by GRALL, P.J.A.D.

OPINION

Page 1214

[437 N.J.Super. 386] GRALL, P.J.A.D.

This appeal concerns Resolution No. 1 of the City Council of the City of Hoboken (Council) adopted pursuant to the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49. With that resolution, the Council delineated an " area in need of rehabilitation" (AINreh), which " means any area determined to be in need of rehabilitation pursuant to [ N.J.S.A. 40A:12A-14]." This [437 N.J.Super. 387] AINreh includes public streets and private properties, some of which are owned by plaintiff R. Neumann & Co. (Neumann) and known as the " Neumann's Leathers" properties. The Council adopted the resolution on October 19, 2011.

In delineating this AINreh, the Council relied on N.J.S.A. 40A:12A-14(a)(2)-(3) (recodified as N.J.S.A. 40A:12A-14(a)(6) by L. 2013, c. 159 approved on Sept. 6, 2013). Those portions of N.J.S.A. 40A:12A-14 permit a governing body to delineate an AINreh if it determines that " a majority of the water and sewer infrastructure in the delineated area is at least [fifty] years old and is in need of repair or substantial maintenance" and further determines that a " program of rehabilitation, as defined in [ N.J.S.A. 40A:12A-3], may be expected to prevent further deterioration and promote the overall development of the community." Ibid. (emphasis added). As defined in N.J.S.A. 40A:12A-3, " '[r]ehabilitation' means an undertaking, by means of extensive repair, reconstruction or renovation of existing structures, with or without the introduction of new construction or the enlargement of existing structures, in any area that has been determined to be in need of rehabilitation or redevelopment. . . ." (emphasis added). The rehabilitation must be undertaken " to eliminate substandard structural or housing conditions and arrest the deterioration of that area." Ibid. [1]

Page 1215

[437 N.J.Super. 388] N.J.S.A. 40A:12A-14 also prescribes procedures a governing body must follow prior to adopting a resolution delineating an AINreh, and the Council followed them. The Council submitted two draft resolutions to the City's Planning Board (Board) for its consideration and recommendations as required by N.J.S.A. 40A:12A-14 -- one in April and one in June 2011 that expanded the initial proposed area to include additional private properties and the public streets that delineate the boundaries of the area. The Council also directed the Board to conduct a public hearing on the proposed resolution after giving notice by publication and by mailing to the owners of record of properties with 200 feet of the proposed delineated area, steps not expressly required by N.J.S.A. 40A:12A-14.

On July 2, 2011, the Council passed a resolution extending the forty-five-day statutory deadline for the Planning Board to provide its recommendations, N.J.S.A. 40A:12A-14, and the Board conducted a hearing and approved the draft resolution without recommending any change on September 27, 2011.[2] The Council adopted Resolution No. 1 after accepting public comment at its regular meeting.

This AINreh is a flag-shaped area in part of the southwestern section of Hoboken that includes and is demarked by public streets. The flag's pole is Observer Highway from its intersection [437 N.J.Super. 389] with Jefferson Street easterly to its intersection with Hudson Street. The triangular-shaped flag runs northerly from and includes the intersection of Observer Highway's intersection with Willow Avenue, and from that intersection north to and including its intersection with Newark Street and from that intersection along Newark Street in a southwesterly direction to and including its intersection with Observer Highway.

The private properties included in this AINreh are known as Block 2, Lots 12 through and including Lot 26, and Block 2.1, Lots 1 through and including Lot 10. The total area, including the streets, is about 11.5 acres in area, only 3.3 of which are private property.

The Neumann Leathers properties, which Neumann describes as older industrial buildings, include all of the designated Lots in Block 2 and Lots 1 through 4 plus Lots 9 and 10 in Block 2.1. It does not include some private properties at the southwestern tip of the triangle formed where Newark Street meets Observer Highway. Neumann refers to the excluded properties as a " hole" in the flag portion of the AINreh. According to defendants, the shape is attributable to the exclusion of newer buildings and prior designations of AINrehs and AINreds in the areas on the far side of the bordering streets. According to Neumann, the shape is the consequence of the Council's true purpose -- protection of the artists, artisans and musicians that rent space in Neumann's buildings and serve the City's interest in cultural activities and retention of old industrial buildings

Page 1216

that have historical significance as reminders of the industry that built the City. Those interests and concerns about the sewer system are expressed in the City's 2004 Master Plan, its 2010 Reexamination Report and numerous press releases and public statements from the mayor.

Following the adoption of Resolution No. 1 on October 19, 2011, Neumann filed a complaint naming as defendants the City of Hoboken, the Council, the City's Mayor, Dawn Zimmer, and the Board. The complaint asserts three claims in lieu of prerogative writs, in which Neumann contends that Resolution No. 1 is not [437 N.J.Super. 390] supported by adequate evidence, is motivated by a pretextual purpose and is inconsistent with the LRHL. Neumann's complaint also includes four counts seeking damages alleging interference with its rights to property, free speech and equal protection and asserting a " de facto taking" amounting to an inverse condemnation. No testimony was taken in the trial court, and the case was decided and the record developed before the Planning Board and Council, as supplemented by the motions and motions for reconsideration in the trial court.

This appeal is from the trial court's order of January 11, 2013. With that order, the court denied Neumann's second motion to reconsider a July 2, 2012 judgment dismissing the prerogative writs claims with prejudice, and the court granted defendant's summary judgment on the claims for damages.[3] Because Neumann presents no argument on appeal claiming error in the dismissal of its claims for damages, any related error ...


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