LESTER M. ENTIN ASSOCIATES v. TOWN OF HARRISON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4011-07T24011-07T2

LESTER M. ENTIN ASSOCIATES,

Plaintiff-Appellant,

v.

TOWN OF HARRISON, A Municipal

Corporation of the State of

New Jersey; HARRISON PLANNING BOARD, A

Department/Agency of the Town

of Harrison and HARRISON REDEVELOPMENT

AGENCY, An Instrumentality of the Town

of Harrison,

Defendants-Respondents.

_______________________________________

LESTER M. ENTIN ASSOCIATES,

Plaintiff-Appellant,

v.

HARRISON PLANNING BOARD, A Department/

Agency of the Town of Harrison;

RED BULL STADIUM, L.L.C., A Delaware

Limited Liability Company and RED BULL

PARK, L.L.C.,

Defendants/Respondents.

_______________________________________

LESTER M. ENTIN ASSOCIATES,

Plaintiff-Appellant,

v.

ADVANCE AT HARRISON, L.L.C., A New

Jersey Limited Liability Company;

HARRISON REDEVELOPMENT AGENCY, An

Instrumentality of the Town of Harrison;

HARRISON PLANNING BOARD, A Department/

Agency of the Town of Harrison and RED

BULL STADIUM, L.L.C., A Delaware Limited

Liability Company,

Defendants-Respondents.

_______________________________________

 

Argued April 28, 2009 - Decided

Before Judges Skillman, Graves and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Hudson County, Docket

Nos. L-1850-07, L-3188-07 and L-4130-07.

Daniel E. Horgan argued the cause for

appellant Lester M. Entin Associates

(Waters, McPherson, McNeill, attorneys;

Mr. Horgan, of counsel and on the brief;

Angela M. Gurrera and Brittany E. Young,

on the brief).

Gregory J. Castano, Jr., argued the cause

for respondents Town of Harrison and

Harrison Redevelopment Agency (Castano

Quigley, L.L.C., attorneys; Mr. Castano,

on the brief).

Brian D. Burns argued the cause for

respondent Harrison Planning Board (Burns

& Schaffer, attorneys; Mr. Burns, on

the brief).

Stephen E. Barcan argued the cause for

respondent Red Bull Stadium, L.L.C. (Wilentz, Goldman & Spitzer, attorneys; Mr. Barcan and Donna M. Jennings, of counsel and on the brief; Louis Greenfield, on the brief).

Timothy J. O'Neill argued the cause for

respondent Advance at Harrison, L.L.C.

(Windels Marx Lane & Mittendorf, attorneys;

Mr. O'Neill, of counsel; Sandy L. Galacio, Jr., on the brief).

PER CURIAM

Plaintiff Lester M. Entin Associates filed three actions in lieu of prerogative writs to challenge the Town of Harrison Planning Board's approval of three individual applications for development of properties situated in Harrison's Waterfront Redevelopment Area. The applications were filed by the Harrison Redevelopment Agency (Agency), Red Bull Stadium, L.L.C., and Advance at Harrison, L.L.C. (Advance). The trial court consolidated the actions and ultimately upheld the Board's approvals and dismissed Entin's complaints.

A central feature of Harrison's Waterfront Redevelopment Plan is a stadium that will serve as the home of a professional soccer team. The Plan designates the Stadium District and it also includes a Mixed Use and Residential District. Entin owns property adjacent to but not included in the redevelopment zone, on which a commercial warehouse is in operation.

The Agency applied for approval of a minor subdivision of Lot 1.01, Block 174, known as 600 Cape May Street. The 14.84-acre lot is within the redevelopment zone's stadium and mixed use and residential districts. The agency sought to establish two lots Lot 1.02, a 12.34-acre parcel, which the Agency anticipated using as the site of the stadium, and Lot 1.03, a L-shaped lot with an area of 2.50 acres. No variances or waivers were sought or required.

The Board considered and approved the Agency's application for minor subdivision approval at a hearing held on February 8, 2007. Prior to the Board's vote, Entin's attorney challenged the Board's jurisdiction. Because the Agency intended to use Lot 1.03 as part of a network of roadways in the redevelopment zone, Entin contended that the Agency's application should be treated as one for approval of a major subdivision, requiring public notice pursuant to N.J.S.A. 40:55D-11. See N.J.S.A. 40:55D-5 (defining major and minor subdivisions). The roadway network for the redevelopment zone is included in the Redevelopment Plan. Based on the limited approval the Agency sought, the Board rejected Entin's claim. At the same meeting, the Board commenced its consideration of Red Bull's application for preliminary and final major site plan approval of the stadium property. The application erroneously stated the applicant's name as "Red Bull Park, L.L.C."

Testimony and evidence were admitted on that date and on February 28, March 13, and March 28, 2007. The Board heard from Red Bull's President and its architect, professional engineer and traffic engineer, and the Agency's Chairman. Entin's fire and safety consultant also testified. The Board received and considered reports from the Town Planner and Engineer, Chiefs of Police and Fire and Health Officer, the Board's Engineer and Traffic Consultant, and Red Bull's civil and traffic engineers. In addition, consultants retained by Entin submitted reports discussing, among other things, safety concerns inherent in the Redevelopment Plan's location of a stadium in close proximity to a gas storage facility operated by PSE&G and the potential for crowd violence and terrorism, which the Board submitted to town officials with responsibility for the subjects addressed. Those officials provided comments and recommended some amendments to Red Bull's site plan.

Red Bull sought waiver of standards included in the Plan restricting the location of "loading areas" and requiring "cornices," surface parking "screened from view," a specified percentage of lot frontage "occupied by building face," and a specified percentage of "glazed" fenestration.

The Redevelopment Plan, as noted above, provides a proposed road network for the zone. Although the Plan specifies that the stadium should be a "visual landmark," it expressly allows "a great deal of flexibility . . . in terms of design." With respect to parking, the Plan requires one space for each six seats. That parking may be on the site or off and may include parking facilities that are "shared" with other entities.

The Board approved Red Bull's site plan on March 28, 2007 and adopted its Resolution on May 9, 2007. The Board's comprehensive findings address the roadway network to be improved by Advance and set forth in an application pending before the Board and on file for public review, and parking on site and at ten off-tract locations, including spaces reserved for the handicapped. In addition, the Board made findings relevant to fences and walls, lighting, landscaping, stormwater management, utilities, signs, public art and traffic, including pedestrian traffic.

With respect to deviations from the Redevelopment Plan design standards the Board made these findings:

143. The Redevelopment Plan allows deviations from design standards relating to a "specific piece of property" in situations in which the deviation will advance the purposes of the Redevelopment Plan and the benefits of the deviation substantially outweigh the detriments. See Redevelopment Plan at Page 29.

144. The Property that is the subject of this application is the only parcel in the Redevelopment Area designated for use as a stadium. The Property's unique zoning, as well as its particular size, shape and location within the Redevelopment Area are at the core of the reasons justifying deviations from Redevelopment Plan design standards.

(1). No Property Frontage Occupied by

Building Face

145. The requirement that a least 50% of lot frontage be occupied by building face applies throughout the Redevelopment Area and is not specific to the Stadium District.

146. The deviation from the requirement is essential in order to provide plaza areas around the Stadium for pedestrian gatherings in advance of games and events, pedestrian queuing as fans enter the Stadium, and safe pedestrian exiting following a game or during an emergency.

147. The Redevelopment Plan allows "a great deal of flexibility . . . in the [Stadium District] in terms of design." Redevelopment Plan at Page 34. It also

specifically contemplates large outdoor plaza areas. See Redevelopment Plan at Page 34. Granting this requested deviation will thus promote both the design purposes of the Stadium District as well as public safety and convenience. The benefits of the deviation will substantially outweigh any detriments. The Board finds that detriments will be de minimis.

(2). Retail Fenestration

148. The requirement that, for retail use, fenestration occupy 60% of the first floor building space also applies throughout the Redevelopment Area, and is not specific to the Stadium District.

149. Although the Stadium contains some retail facilities at the first floor level (such as the "Bull Shop" and club areas) large portions of the first floor are occupied by other spaces (such as storage, unused space, and offices). Permitting a deviation from retail fenestration requirements for the Stadium use will promote Redevelopment Plan purposes of allowing great design flexibility in the Stadium District and appropriate Stadium design. Accordingly, the deviation will avoid the need for placing windows in inappropriate areas such as storage facilities and unused areas.

150. The Board concludes that the benefits of the deviation will substantially outweigh the detriments. In that regard, the Board finds that those first level areas which are retail in character, such as the Bull Shop and club areas, do in fact provide appropriate fenestration, as shown on Sheet A-201 of the Plans by Rossetti.

151. Finally, and in the alternative to the analysis above, the Board concluded that no relief is needed from this design standard because it was not intended to apply to non-retail areas on the first floor of a building.

(3). Cornices

152. Granting relief from the requirement for providing cornices on buildings with flat roofs will likewise further Redevelopment Plan standards for design flexibility in the Stadium District and providing a stadium that will serve as a "visible landmark." See Redevelopment Plan at Page 34. In that regard the Board finds that the proposed design is appropriate and superior to one that would add cornices to the Stadium. The Board finds that cornices would be out of character with the proposed design.

153. The benefits of granting the deviation will substantially outweigh the detriments. In regard to detriments, the board finds that there are none.

(4). Loading Facilities on Cape May Street

154. The Redevelopment Plan prohibits loading areas along Cape May Street. Granting a deviation from this requirement, however, will allow loading and service facilities to be located away from heavily traveled pedestrian areas, thereby improving both public safety and the visual environment for members of the public attending Stadium events.

155. The main entrance to the Stadium will be on the west side. Immediately to the north of the Stadium will be the Advance Surface Lot, a prime location for Stadium patron parking. The primary pedestrian flow will be to and from the Advance Surface Lot and other off-tract parking facilities located to the north and west of the Stadium.

156. In addition, after games and events, the prime pedestrian flow from the east side of the Stadium will be around the Stadium's north end and then to the north and west toward off-tract parking facilities and the PATH station.

157. Providing the loading and service area to the south of the Stadium on Cape May Street provides appropriate separation between the trucking activity incidental to that area and the pedestrian-related activity to the north, east and west of the Stadium.

158. The benefits of permitting the deviation in terms of improved pedestrian circulation and safety, and an improved visual environment for Stadium patrons substantially outweighs the detriments.

159. In that regard, the Board finds that detriments will be effectively minimized by the proposed 8 foot high masonry wall that will surround the loading and service area along Cape May Street and by the metal screen to be mounted on top of the wall in the vicinity of the proposed cooling towers.

The Board addressed objections raised by Entin as follows:

164. Robert J. Davidson, a fire and life safety consultant hired by Entin, testified in opposition to the application.

165. Mr. Davidson agreed with a number of the recommendations (including no parking around the perimeter of the Stadium, completing the street network serving the Stadium before it opens, and providing unobstructed exit discharges from main patron exits to the nearest public street) made by the Fire Chief, Construction Official and Town Engineer for site plan modifications to enhance public safety and emergency response.

166. Mr. Davidson testified he did not review the Advance Plans (which were public documents on file in the Board Office prior to his testimony) and could not assess the propriety of a number of proposals, including closing Metrocentre Plaza on game days in order to provide an emergency staging area. The Board, however, finds that the Advance Plans were readily available to Mr. Davidson, and that the proposed street closure is appropriate both because access to the street, which will have a 44 foot wide cartway (not including the 16 foot wide median), will be available to emergency vehicles, and because alternative vehicular and pedestrian access for Stadium patrons will be readily available.

167. Mr. Davidson expressed concern for separating, on game days, emergency response operations and patron exit discharge routes within the loading and service area. The Board concludes that this is an operation detail that can and should be left to emergency responders and Stadium operations personnel.

168. Mr. Davidson also expressed concern that temporary blacktop surfaces on sidewalks and street crosswalks might make travel by wheelchairs difficult. The Board concludes that this is a construction detail that can and should be left to the Town Engineer, who will be responsible to insure that all paving is installed in a manner that will allow convenient wheelchair travel over it.

169. Mr. Davidson testified that he did not know the location of the proposed parking lot on Block 150, Lot 16.01 (the Advance Surface Lot), although the lot is shown in the Advance Plans on file in the Board office. He indicated concern about the distance between the handicap parking spaces to be provided on that lot and the Stadium. The Board is satisfied that a suitable barrier-free accessible route will be provided between the two.

170. Mr. Davidson expressed concern that the Plans had changed, and the earlier testimony indicated gates to the service and loading area were to be kept closed, but the Constructional Official and Town Engineer recommended they be kept open on game days. The Board concludes that keeping these gates open on game days and closed at other times is a manageable operation issue.

171. Mr. Davidson expressed other concerns including the capacity of Cape May Street to accommodate pedestrian traffic leaving the Stadium, the capacity of the site to accommodate emergency responders, the lack of a handicap drop-off on Sixth Street, and the lack of alternative access to the Advance Surface Lot. The Board concludes however, that the Plans adequately provide for public safety and convenience, and for barrier free access.

172. Mr. Davidson expressed concern regarding the proximity of the Stadium to the PSE&G gas storage facility and the underground gas transmission line in Cape May Street. The Board concluded that these issues were put to rest when the Redevelopment Plan was adopted in 2003. The Stadium is a permitted use. The Board has neither the authority nor the inclination to prohibit a stadium in the Stadium District. As a condition of its approval, the Board will entrust to Police and Fire personnel the responsibility to formulate plans for effective emergency response to any emergency involving the Stadium, including emergencies arising from occurrences involving the gas storage facility or the underground gas transmission line.

173. Finally, Mr. Davidson disagreed with the Construction Official's conclusions regarding compliance with Uniform Construction Code requirements, and expressed concern that any resolution of approval would put "tremendous responsibility" on the Construction Official, and resulting pressure to issue a certificate of occupancy to allow the Stadium to open. The Board, however, determined not to second guess the judgment of the Construction Official, but rather to leave Entin to its legal remedies if in the future it believes the Construction Official has issued a permit in error. The Board also concluded that its resolution includes appropriate conditions that can be properly administered and enforced by the Construction Official.

174. The Board acknowledges, but rejects, Entin's argument that this Applicant should have been denied a public hearing until after the Board has heard and approved the application by Advance.

175. The Board is unaware of any provision of the MLUL that would prohibit an applicant from seeking site plan approval for a permitted use, conditioned upon the later approval of subdivision plans providing street improvements that will serve the permitted use and that will be in substantial conformance with the street improvements planned for the area by a duly adopted Redevelopment Plan.

176. The procedure did not prejudice Entin. The Advance Plans, as noted above, are public documents on file in the board's office. Entin, like any other citizen, has access to those plans.

177. In addition, the procedure give Entin, in effect, two bites at the apple. Entin is afforded the opportunity to question and challenge the street improvement plans both in the hearings on this application and in the hearings now underway on the Advance application.

178. This application was deemed complete and ready for hearing while the Advance application was not. The Board was under a statutory obligation to act on the application within 95 days. See N.J.S.A. 40:55D-46c. It was not improper for the Board to do so.

With respect to the opinions of Entin's experts involving the advisability of situating a soccer stadium in the area provided in the Waterfront Redevelopment Plan due to inherent risk associated with terrorism and the nearby gas storage facility, the Board concluded that it could not substitute its judgment on that issue for the determination previously made and reflected in the duly adopted Waterfront Redevelopment Plan.

179. This application was originally filed on or about August 17, 2004, more than 2 1/2 years ago. The application has been carefully reviewed for technical completeness by the Board's Subdivision and Site Plan Review Committee on at least five (5) occasions prior to being deemed complete and scheduled for a public hearing. During the course of technical review, the Plans have been revised by Applicant on multiple occasions. The application has been carefully reviewed at four (4) public hearings. The Stadium is a permitted use in the location where it is proposed. The application presents no issues in regard to compliance with bulk or dimensional requirements. Parking will be provided in full conformance with Redevelopment Plan requirements. Street improvements will be provided in substantial conformance with those requirements, and will meet essential needs of public safety. The site plan is designed to facilitate both safe exiting from the Stadium and efficient emergency response to any unexpected emergency.

180. Subject to the conditions of this resolution, this application meets requirements for the granting of preliminary and final site approval and relief from Redevelopment Plan design standards.

The conditions imposed by the Board require compliance with the recommendations of town officials who reviewed the reports of Entin's experts.

The third and final application for development at issue here was filed by the Agency and Advance for approval to subdivide property, develop new streets, improve existing streets and construct an interim surface parking lot. The Board granted approval through a resolution adopted on June 27, 2007. Entin's challenge to this approval is limited to an allegation that the Board's action was tainted by the Board engineer's conflict of interest.

These are the pertinent facts. Advance filed its application for development on March 23, 2006. At that time, T&M Associates served as the Board's consulting engineer. By memorandum of April 5, 2006, T&M notified the Board that the firm had been retained by Advance in connection with a development project in a different municipality and had not yet done any work on Advance's application. In accordance with N.J.A.C. 13:40-3.5(a)(4)(i), a rule governing the conduct of professional engineers in this circumstance, T&M advised the Board of its option to retain another firm in connection with Advance's proposal. Between April 5, 2006 and March 13, 2007, T&M reviewed Advance's site plan, wrote a report and updated that report on three occasions. On March 13, 2007, however, the Board retained Neglia Engineering to replace T&M for purposes of reviewing Advance's application.

On March 6, 2008, Judge Curran delivered an oral opinion rejecting Entin's objections. Judge Curran determined that the misnomer included in Red Bull's application Red Bull Park, L.L.C. was a technical defect, subsequently corrected, that did not deprive the public of notice required by N.J.S.A. 40:55D-11 and was not fatal to the application for failure to comply with statutes governing disclosure of ownership, N.J.S.A. 40:55D-48.1 to -48.3. In addition, Judge Curran determined that Entin, who participated in the hearing on Red Bull's application without raising an objection to the Board's exercise of jurisdiction, had waived any defect in the notice. See Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234, 237-38 (App. Div. 1996); Izenberg v. Bd. of Adjustment of Paterson, 35 N.J. Super. 583, 588 (App. Div. 1955).

Concluding that the Board could not substitute its judgment for the propriety of a use permitted in the zone or deny approval based on design features of the interior of the stadium not addressed in the local ordinance or Redevelopment Plan, Judge Curran rejected Entin's assertion that the Board arbitrarily approved Red Bull's site plan without considering the reports of Entin's experts. See Pizzo Mantin Group v. Twp. of Randolph, 137 N.J. 216, 223-26 (1994); Saratoga v. Borough of W. Paterson, 346 N.J. Super. 569, 582-83 (App. Div.), certif. denied, 172 N.J. 357 (2002). Judge Curran further observed that the Board's findings and the conditions imposed by the Board reflected consideration of and addressed the matters of "safe and efficient functioning of the facility" raised by Entin's experts.

Finally, Judge Curran rejected Entin's claim that T&M's involvement raised a question of conflict of interest that required invalidation of any approval granted. The judge concluded that T&M had fully complied with the regulation governing its conduct, N.J.A.C. 13:40-3.5.

Entin presents the following arguments for our consideration on appeal:

I. The Trial Court Erred by Entering Final

Judgment Without Completely Reviewing Appellant's Challenges to the Planning Board's Actions and By Failing to Make Findings of Fact or Conclusions of Law.

A. It is Incumbent Upon the Trial Judge to Make Findings of Fact and Draw Legal Conclusions.

B. The Trial Court Failed to Address Appellant's Challenges to Notice.

C. The Trial Court Failed to Address Appellant's Public Safety Claims.

D. The Trial Court Did Not Address Appellant's Challenges to the Conflict of Interest Concerns Raised by the Planning Board's Engineer.

E. The Trial Court Did Not Properly Address Appellant's Challenges to the Stadium Parking Plan As an Arbitrary, Capricious and Improper Planning Board Action.

F. The Trial Court Erred by Failing to Review Appellant's Jurisdictional Challenges to Respondent Red Bull's Application.

II. The Trial Court Erred by Failing to

Adequately Consider the Matters In Light Of Harrison Redevelopment Agency v. DeRose, [ 398 N.J. Super. 361 (App. Div. 2008).]

III. The Trial Court Did Not Review the Entire

Record.

After review of the record and the arguments presented by Entin, we are convinced that the arguments raised in Points I and III are not supported by the record and lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Curran in her oral opinion of March 6, 2008. With respect to the argument raised in Point II, we note that this court's decision in DeRose has no legal relevance to these applications for development. Moreover, while the availability of property that the Agency intends to use to provide parking for the stadium was called into question by this court's decision in DeRose and the companion cases referenced therein, there is no dispute that the litigation has been settled and that the property is now available.

Affirmed.

(continued)

(continued)

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A-4011-07T2

August 28, 2009