SUBURBAN JEWELERS, INC. v. CITY OF PLAINFIELD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3590-08T13590-08T1

SUBURBAN JEWELERS, INC.,

APPLIANCE ARAMA, INC., and

ALBERT D. PITTIS,

Plaintiffs-Appellants/

Cross-Respondents,

and

TURTLE SPORTS, INC. and INVESTORS

SAVINGS BANK,

Plaintiffs,

v.

CITY OF PLAINFIELD,

Defendant-Respondent/

Cross-Appellant.

________________________________________________________________

 

Argued January 11, 2010 - Decided

Before Judges Lisa, Baxter and Coburn.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-0181-08.

Peter Dickson argued the cause for appellants/cross-respondents (Potter and Dickson, attorneys; Mr. Dickson, on the briefs).

Diane U. Dabulas argued the cause for respondent/cross-appellant (Rogut McCarthy LLC, attorneys; Ms. Dabulas and Daniel J. McCarthy, on the briefs).

PER CURIAM

This appeal involves a challenge to a determination by the City of Plainfield that a portion of its central business district is "in need of redevelopment" pursuant to the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49. The redevelopment area is designated as the "North Avenue Expansion Area." Appellants are the owners of commercial properties who claim they are adversely affected by the redevelopment designation. Appliance Arama, Inc. owns a building in the redevelopment area from which it operates a business. Suburban Jewelers, Inc. and Albert D. Pittis own commercial buildings in which they operate businesses near, but not in, the redevelopment area.

The parties filed cross-motions for summary judgment. Judge Anzaldi issued a written opinion dated February 5, 2009, in which he found that, with the exception of one property, the City's redevelopment determination was supported by substantial evidence under one criterion of the LRHL on which the City relied, but not on other criteria upon which it relied. The judge accordingly entered a final order on February 27, 2008, granting the City's summary judgment motion and denying appellants' summary judgment motion. The effect of the order was to sustain the City's redevelopment determination for the North Avenue Expansion Area.

Appellants seek review of the order. They argue that neither the City nor the trial court made the constitutionally required finding of "blight," the determination by the Plainfield Planning Board and the City was based on a net opinion, the Planning Board failed to consider the benefits of the present uses of the properties, and the trial court failed to consider the opinion rendered by another judge in the same vicinage dealing with another redevelopment case. The City filed a cross-appeal, arguing that the trial judge erred in finding that all of the LRHL's criteria upon which the City relied did not apply.

We reject the arguments advanced by appellants, and we therefore affirm the order under review. In light of that disposition, we find it unnecessary to consider the City's cross-appeal arguments, and we decline to do so. We therefore affirm on the appeal and dismiss the cross-appeal as moot.

The redevelopment area consists of portions of two blocks diagonally across from each other at the intersection of Park Avenue and West Second Street/East Second Street. It consists of Block 245, Lots 3 through 10, and Block 316, Lots 20, 22, 23, and 24.

The portion of Block 245 included in the study area consists of 2.48 acres. The eight lots were owned by four owners. PNC Bank owned five of the lots. In addition to its main banking facility and annex, which are over 100 years old, PNC maintains about one-and-one-half acres of parking area and traffic circulation facilities. Located on the bank property is also an antebellum structure, the former Titsworth-Sutphen House, which is currently used as a community meeting center. The PNC lots have frontage on West Second Street and Park Avenue. Appellant Appliance Arama, Inc. owns Lot 6, which is between two of the PNC lots, with frontage on West Second Street. The building was constructed in 1890. An appliance store is being operated on the first floor. The second and third floors are vacant. The remaining lots which are not owned by PNC or Appliance Arama, Inc. have frontage on Park Avenue. They are Lots 8 and 9, which are between two of the PNC lots. These contain commercial buildings, which were built in about 1900. They are partially occupied and partially vacant.

Only four lots in Block 316 are included in the redevelopment area. The two largest lots, 22 and 24, are owned by the City. They consist of 1.16 acres and are currently used as metered public parking. Bisecting those lots is a ten-foot wide strip, which extends the entire 148.25 feet depth of the City lots. This is Lot 23, and it is privately owned. The remaining lot in Block 316, Lot 20, has frontage on Watchung Avenue. It contains the former Elks Lodge building, which was built in 1912 and consists of 15,831 square feet. The first floor is now used as a nightclub. The four-lane bowling alley in the basement is no longer in use. The second floor is used as a meeting room and ballroom. Due to code violations, no use is permitted above the second floor as a condition of the certificate of occupancy.

Pursuant to an authorizing resolution adopted by the City Council, the Planning Board undertook a study to determine whether the area was in need of redevelopment. The Planning Board engaged the services of Remington & Vernick Engineers, Inc., which conducted a study and issued a report on September 7, 2007 (Needs Report). The Needs Report described in detail the overall area and each individual property. It also described the investigations performed to obtain knowledge of relevant facts. These included consultations with property owners, occupants and managers, review of police records, construction office and other City records, and physical inspection of the properties. The report includes photographs of each property. The Needs Report provided this description of the lots encompassed in Block 245:

Block 245 encompasses 2.48 acres of which approximately 1.54 acres (62%) are devoted to surface parking or traffic circulation. The study area within the block is comprised of 8 lots diversely held given four (4) distinct land owners (Appendix C). Chiefly defining the study area is the PNC Bank Building and Annex, the antebellum structure used as a meeting center, the expanse of surface parking, and commercial uses to include: Ted's Appliancearama, the former Thomas Furniture Building now housing the Atkol Video Store; Andrade Travel; the storefront which previously housed Diamond Staffing, Inc, is vacant.

PNC Bank and uses ancillary thereto occupy Lots 3, 4, 5, 7, and 10. The principal structure, situated at the intersection of West Second Street and Park Avenue, was constructed in 1890. A two (2) lane drive thru service is provided at the westerly bank elevation. The PNC Bank Annex, attached to the bank, extends southward along Park Avenue. Within Lot 3, is found a pre-civil war structure, the former Titsworth-Sutphen House (circa 1855) now utilized as community meeting space. The PNC parking facility and vehicular circulation areas are spread over Lots 3, 4, 5, and 10.

Per tax assessment records, the bank itself has a floor area of 23,450 square feet. This floor area given changes in the banking industry far exceeds the operational needs of a bank. The mezzanine area is no longer fully in use. Extensive rehabilitation work is necessary; most immediately, a new roof is required to replace that which has been patched as well as replacement of the entire air conditioning system.

Adjoining the bank is the Bank Annex being a 3-story structure constructed in 1900 and having per tax assessment records a floor area of 13,125 square feet. This structure is no longer in use and has been vacant for several years. A two (2) lot minor subdivision application relating to Lot 7, Block 245 to allow for the subdivision of the Annex from the bank was approved by the Planning Board at the March 2, 2006 meeting, as a first step to enable introduction of retail and office uses in the vacant building. This approval was conditioned in part on the provision of a non-exclusive cross-access easement and parking easement (for use of twenty-eight (28) stalls) to the benefit of the newly created parcel. To date, the subdivision has yet to be perfected. It remains uncertain as to whether the subdivision will be recorded and title conveyed.

The expansive PNC Bank parking facility encompasses approximately 1.5 acres and is of a size sufficient to enable parking for more than twice the number of vehicles required for the bank and annex. This area is antiquated as evidenced by surface course deterioration (longitudinal cracking), ponding conditions made prominent by instances of standing water, fading or missing stall striping resulting in ill defined traffic circulation exacerbated by a lack of end of row islands, unscreened parking virtually to the property line along West Second Street, lack of perimeter and interior landscaping, and dark conditions as a result of only partial illumination via pole-mounted spot lights, which are outdated by current design practice. Within the parking area, situated at the westerly property line of Lot 3, is found the former Titsworth-Sutphen House, an antebellum structure, now used as a community meeting center. Said structure is situated so close to the property line and fencing enclosing the adjoining public utility facility that full use of the site along the west building elevation is denied - this area including a porch area.

Apart from the bank use, the remainder commercial use along West Second Street is Ted's Appliancearama (Lot 6). This building was constructed in 1890, portions of which being of 1-story, 2-story, and 3-story construction and having in aggregate, per tax assessment records, a floor area of 10,418 square feet. The upper stories are vacant and no longer used in the operation of the business. Dilapidation is found on each of the building's elevations. This dilapidation is in the form of observable cracking, instances of severe breakdown of exterior paint, an instance of severe damage to the west fa ade, deterioration about the front display window to include a taped, cracked window. In addition, a dilapidated solid fence extends along the easterly property line to enclose an area of outdoor trash storage; the condition and construction of this fencing is such that it does not entirely screen the area of trash storage. A review of building permit activity provided by the City's Building Department reveals the last issued permit dates to July 30, 1974 for the construction of a decorative roof over the front window.

Along Park Avenue, three-story buildings dating to 1900 are situated on Lots 8 and 9. The former Thomas Furniture Building now housing the Atkol Video Store, per tax assessment records, has a floor area of 11,800 square feet. The upper two (2) stories are vacant, other than for furniture and collectibles of a former tenant, and are not utilized in the operation of the business. Prominent dilapidation is evident on the front and rear building elevations. On the front elevation, the attached sign is severely deteriorated and missing panels; additionally, there are extensive areas of severe exterior paint breakdown on the fa ade and underside of the entrance canopy. The rear elevation is extensively stained presenting [a] shabby condition mainly observed from the PNC Bank drive thru and parking area. A review of building permit history provided by the City's Building Department for the period extending from November 11, 1996 to August 8, 2006 reveals the issuance of three (3) permits for roofing, restroom installation, and installation of a new water heater; however, no permits for improvement of the aforementioned exterior conditions. Accumulations of trash and debris are found at the rear of the building which is an area that has been observed, during the conduct of field work, as a sleeping area for vagrants. Pursuant to inspection by the Plainfield Fire Division, Bureau of Fire Prevention inspection of July 26, 2007, a Notice of Violations and Order to Correct has been issued for the presence of conditions which in some instances impede the ability to fight fire, and presence of dangerous conditions relating to the attached sign on the front elevation and chimney stack. In addition, the city's tax collectors office reports substantial tax arrearage evidenced by the placement of a third party lien in 2004 and unsatisfied tax billing from the fourth quarter of 2004 to the present time.

The building on Lot 9 has a floor area, per tax assessment records of 4,836 square feet of which 1,612 square feet is devoted to two (2) storefront uses. Apartments are located in the upper stories. The southerly storefront is vacant with the windows covered with a black material preventing interior view. Dilapidation is in evidence on all elevations of the structure being most prominent on the south and rear elevations owing to the presence of boarded windows, conditions of brickwork, breakdown of exterior wall covering, and instance of severe deterioration of exterior covering about a window area on the south side elevations. In addition, an unenclosed trash dumpster observed to be over filled with accumulations of trash arrayed about the dumpster on the ground is located in the rear parking area and easily viewed from Park Avenue and the PNC Bank drive thru and parking area. Said accumulations have been problematic over time as pointed out by the issuance of Violation Notices on January 24, 2003, February 12, 2004, and January 5, 2007 and on January 15, 2004 for accumulations of garbage. The rear parking area is dilapidated as evidenced by severe surface course deterioration; the driveway to the parking facility presents an unsafe condition at the intersection with the sidewalk owing to the lack of a clear line of sight prior to entering into the public right-of-way. Parenthetically, this same unsafe condition relates to the egress drive from the PNC Bank drive thru situated on adjoining Lot 10. Since 1999, building permit activity appearing to be of a minor nature coincides with the issuance of certificates of continued occupancy necessary for the new commercial uses or tenants; the exception being boiler replacement work in 2003.

[Footnotes omitted.]

The report described the lots in Block 316 as follows:

The [Elks] Building is situated on Lot 20. The cornerstone for the building was placed in 1912 and has a floor area per tax assessment records of 15,831 square feet. Said records indicate the structure is now used as a night club, has a no longer used four (4) lane bowling alley in the basement, a television and large dining area on the first floor, a small meeting room and ballroom on the second floor, three (3) rooms and a bath on the third floor, and a vacant penthouse on the roof. Use of the building above the second floor is not permitted per condition of certificate of occupancy as the building is not to construction code requirements in part relative to secondary means of egress from the third floor. The City's Division of Inspections reports the building owner has since January of this year been cited for the presence of trash and debris and broken window panes. From exterior inspection, the building appears to be structurally sound; however, dilapidation is prominent owning [sic] to the condition of the brickwork, the presence of broken and/or boarded windows, and deteriorated woodwork. An alley is situated on the north side of the building within which vehicles are parked creating an unsafe condition for pedestrians resulting from a lack of clear line of sight where the alley intersects the sidewalk.

. . . .

Lots 22 and 24 encompassing approximately 1.16 acres is municipally owned metered and permit surface parking (Lot #6), operated by the Parking Authority of the City of Plainfield. These parcels are bifurcated by the privately held 1,482.5 square foot Lot 23 dimensional at 10 feet by 148.25 feet. Taken together, these parcels exhibit instances of surface course deterioration in the form of severe longitudinal cracking and afford opportunity for parking virtually to the East Second Street right-of-way absent buffering for the mitigation of off-site headlight glare. This parking area is directly opposite severely deteriorated structures being part of the North Avenue Redevelopment Zone and is situated one (1) block north of the Downtown Plainfield Station. Per crime statistics provided in the Plainfield Police Division Uniform Crime Report of July 18, 2007, the parking lot area is problematic as evidenced by sixteen (16) reported crimes for the period beginning 2002 through the first half of 2007. Instances of theft have occurred in each year other than for 2005 and the area was the site of a 2007 homicide.

[Footnote omitted.]

Remington & Vernick considered the various statutory criteria in the LRHL that can support a determination of need for redevelopment. These are contained in N.J.S.A. 40A:12A-5, and provide, in relevant part, as follows:

A delineated area may be determined to be in need of redevelopment if, after investigation, notice and hearing as provided in section 6 of P.L. 1992, c. 79 (C. 40A:12A-6), the governing body of the municipality by resolution concludes that within the delineated area any of the following conditions is found:

. . . .

b. The discontinuance of the use of buildings previously used for commercial, manufacturing, or industrial purposes; the abandonment of such buildings; or the same being allowed to fall into so great a state of disrepair as to be untenantable.

. . . .

d. Areas with buildings or improvements which, by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals, or welfare of the community.

e. A growing lack or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real property therein or other conditions, resulting in a stagnant or not fully productive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare.

[N.J.S.A. 40A:12A-5.]

The Needs Report found that criterion (d) applied to all of the properties. The structures were all marked by substantial physical deterioration. Some buildings or portions of buildings had been unoccupied for substantial periods of time. Some portions of buildings could not be used because of code violations or obsolescence. The layout of the buildings was, in some cases, detrimental to public safety because of poor sight lines in areas of vehicular traffic. The parking lots lacked proper stormwater management infrastructure and exhibited raised pavement patching, pervasive ponding conditions, and potential freezing during winter months. These conditions, of course, also presented safety hazards.

A study of police records revealed significant criminal activity in the area. The presence of vagrants sleeping in the area was observed by preparers of the study and documented in the photographs attached to the report. The traffic flow was poorly regulated due to obsolescence and design deficiencies and the layout of buildings "enhanc[ed] occasion for vehicular/pedestrian conflict." Lighting conditions were also substandard, presenting a further safety hazard. The extent of deterioration of the buildings exceeded mere cosmetic deficiencies. The report also noted the presence of unaddressed fire code violations.

The report identified some particular problems caused by the faulty arrangement or obsolete layout of buildings. One of these, in Block 245, dealt with the PNC Bank and its drive thru facility. Proximity of the drive thru to West Second Street contributes to traffic congestion near the Park Avenue intersection because the queue extends into the street. The problem becomes further aggravated when vehicles traveling west on West Second Street wait to make the left turn. Motorists exiting the bank drive thru are deprived of a clear line of sight at the point where the egress drive intersects with the sidewalk along Park Avenue, enhancing the likelihood of injury to pedestrians. The other similar problem is in Block 316, where "[a]n alley is situated on the north side of the [former Elks Lodge] building within which vehicles are parked creating an unsafe condition for pedestrians resulting from a lack of clear line of sight where the alley intersects with the sidewalk."

The Needs Report concluded that criterion (d) was satisfied as to all of the lots we have listed in both Blocks 245 and 316. The report also found other criteria of N.J.S.A. 40A:12A-5 applicable. In particular, it found criteria (b) and (e) applicable to Block 245, and criterion (e) applicable to Block 316. The report also suggested that two other criteria could be applicable, namely (g) and (h), dealing respectively with the fact that the parcels were included in areas designated as Urban Enterprise Zones and Smart Growth Planning Areas. However, in their subsequent approving resolutions, neither the Planning Board nor the City Council referenced those criteria. Accordingly, we need not address them. Further, because Judge Anzaldi rejected the City's determination that criteria (b) and (e) were satisfied, and because, as we have stated, we are dismissing as moot the City's cross-appeal with respect to those criteria, we will not address them further.

On September 20, 2007, the Planning Board held a public hearing to discuss the findings of the Needs Report. George Stevenson, a member of the Remington & Vernick firm, provided testimony elaborating on the contents of the report. He described the connection between the dilapidation, faulty arrangement and layout, and obsolescence of the properties and the resulting detriment to the safety, health and welfare of the community as required by criterion (d).

On October 4, 2007, the Planning Board approved the resolution recommending that the area we have described to be designated as an area in need of redevelopment. The Board found that based on the Needs Report, the testimony at the September 20, 2007 hearing, and the knowledge of the area possessed by the Board members, Block 245 satisfied criteria (b), (d) and (e), and Block 316 satisfied criteria (d) and (e). In its resolution, the Board expressly incorporated by reference the findings of the Needs Report, and further commented and elaborated to some extent. By expressly adopting and incorporating the contents of the Needs Report, the Planning Board made the same findings as recited in the report.

The Board expressly found

that the conditions of disrepair and dilapidation that justify the blight determination under criteria d for many of the properties are more than mere cosmetic conditions that can be easily repaired or that can be rectified by a property maintenance program. Rather, these conditions are symptomatic of a general lack of disinvestment [sic] in the area.

The resolution also noted that this study area is adjacent to the North Avenue Redevelopment Area and the Park Madison Redevelopment Area, and that this area "is an essential connection between these areas" to provide for the overall redevelopment of a larger area found to satisfy criteria for being in need of redevelopment.

On December 5, 2007, the City Council adopted a resolution accepting the Planning Board's recommendation and designating the area as in need of redevelopment. Appellants brought this action seeking to set aside the designation. In a thorough written opinion, Judge Anzaldi found that criterion (d) was met. He found, however, that the other criteria relied upon by the Board and the City were not supported by substantial evidence. In applying criterion (d), the judge found that the "proper statutory criteria were followed and the necessary connection to health, safety, welfare, and morals was made." The judge also found that all of the properties that we have listed in this opinion as being finally approved were "necessary and integral to the redevelopment of the area as a whole."

In the midst of the Remington & Vernick study, our Supreme Court issued its landmark decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007), in which it set forth the conditions that must be established under the Blighted Areas Clause of the State Constitution in order to constitute "blight" or its equivalent current term, "area in need of redevelopment." In light of that decision, Remington & Vernick revisited its work and revised its analysis and findings in conformity with the Gallenthin principles. Likewise, the Planning Board and City Council were fully cognizant of the Gallenthin principles when they acted in this matter. Finally, of course, the trial court also had the benefit of the Gallenthin decision and applied its principles in deciding the case.

In approving the City's determination under criteria (d), the judge recognized that there must be a connection between the stated conditions, such as dilapidation or obsolescence, and the detriment to the safety, health and welfare of the community. After recounting the findings of the Needs Report with respect to criterion (d), the judge concluded that "[t]he record before the Board was replete with facts that satisfy the requirements of subsection (d)." He concluded that "[t]hese conditions negatively affect the health, safety, welfare, and morals within the overall community. In sum, the Needs Report, on which the Board relied, makes factual findings supported by substantial evidence to show that the Study Area satisfies subsection (d) of the LRHL."

The City's determination that the study area is in need of redevelopment came to the Law Division invested with a presumption of validity. Levin v. Twp. Comm. of Bridgewater, 57 N.J. 506, 537, appeal dismissed, 404 U.S. 803, 92 S. Ct. 58, 30 L. Ed. 2d 35 (1971). Appellants bore the burden of overcoming that presumption by demonstrating that the determination was not supported by substantial evidence. Ibid. "Substantial evidence" is equivalent to a reasonable basis. Ibid. The "substantial evidence" standard requires "a record that contains more than a bland recitation of applicable statutory criteria and a declaration that those criteria are met." Gallenthin, supra, 191 N.J. at 373. Thus, a net opinion cannot provide a basis for the determination. Id. at 373. Our review is de novo, and if we are satisfied from the record that a reasonable basis existed for the City's designation of the area as in need of redevelopment, we must give judicial deference to that determination. Levin, supra, 57 N.J. at 537; ERETC, L.L.C. v. City of Perth Amboy, 381 N.J. Super. 268, 277 (App. Div. 2005).

In Gallenthin, the Court held that "the New Jersey Constitution authorizes government redevelopment of only 'blighted areas.'" Gallenthin, supra, 191 N.J. at 348. The Court undertook to define blight by examining many common and historical definitions, as well as the history leading to the adoption of the clause. Id. at 360-62. The Court said that while the meaning of blight has evolved and broadened, it still has a "negative connotation" and "retains its essential characteristic: deterioration or stagnation that negatively affects surrounding properties." Id. at 363.

Appellants contend that neither the City nor the trial court found the constitutionally required condition of blight. We do not agree.

Appellants correctly state that Gallenthin requires that only "blighted" areas may be declared in need of redevelopment. Gallenthin did not invalidate the LRHL. It held that its criteria must be read and applied in accordance with the constitutional principles it expounded. Therefore, as long as a statutory criterion rises to the level of "blight," i.e. deterioration or stagnation that negatively affects surrounding properties, then satisfaction of the statutory criterion would also satisfy the constitutional requirement of blight. See Gallenthin, supra, 191 N.J. at 363. "At its core, 'blight' includes deterioration or stagnation that has a decadent effect on surrounding property." Id. at 365.

Thus, the criteria listed in N.J.S.A. 40A:12A-5 do not in and of themselves establish blight in the constitutional sense, but are among the paths recognized by the Legislature by which an area can be determined to have reached the level of degradation required by the Blighted Areas Clause. Unlike the conditions described in criterion (e), which could be read to mean that land is merely not being used to its fullest potential, a reading found constitutionally deficient by the Court in Gallenthin, criterion (d) is clearly descriptive of the blighted conditions required by Gallenthin, with the added caveat that the conditions are such that the deterioration or stagnation negatively affects surrounding properties.

The Court explained in Gallenthin that "in adopting the Blighted Areas Clause, the framers were concerned with addressing a particular phenomenon, namely, the deterioration of 'certain sections' of 'older cities' that were causing an economic domino effect devastating surrounding properties. The Blighted Areas Clause enabled municipalities to intervene, stop further economic degradation, and provide incentives for private investment." Gallenthin, supra, 191 N.J. at 361-62. The conditions described in the North Avenue Expansion Area fit well within this description. And, in a densely developed central business district of an older city, it is reasonable to infer that the deleterious conditions would have a decadent effect on surrounding property. We therefore reject appellants' argument that neither the City nor the trial court made the requisite finding of blight in the sense constitutionally required by Gallenthin.

We also reject appellants' argument that the Needs Report was nothing more than a net opinion. The report did not contain merely a "bland recitation of applicable statutory criteria and a declaration that those criteria are met." See Gallenthin, supra, 191 N.J. at 373. It discussed specific conditions of each property and explained in detail why those conditions rose to the level of obsolescence, dilapidation, faulty design, and the like. The report also explained in detail the many ways in which the conditions were detrimental to the safety, health and welfare of the community. The report also set forth the source of the factual information upon which it relied, which was derived from an adequate investigation, which included inspecting the properties, interviewing property owners, occupants and managers, reviewing police records, examining construction code records, building permits, tax assessment records, and other similar available information.

Appellants' argument that the Planning Board erred in failing to consider the benefits of the current uses of the study area is misguided. Appellants base that argument on the Court's discussion in Gallenthin regarding the undeveloped land under single ownership and whether it met criterion (e). In doing so, the Court noted that Paulsboro apparently had not considered the benefits of protected wetlands in evaluating whether this undeveloped land met criterion (e). Id. at 371. The Court said that "[a]t the very least, the Borough should have considered those benefits." Ibid. That rationale does not carry over to criterion (d), which describes conditions which, even if there is some productive use of some of the buildings, constitute an overall condition of the area that renders it, even with those beneficial uses, in such a state of decay as to be detrimental to the health, safety and welfare of the community.

Finally, we find unpersuasive appellants' argument that the trial court erred by failing to consider the opinion rendered by another judge in the same vicinage in a different redevelopment case. Each of these cases is highly fact sensitive. Further, the decision of another trial court in an unpublished opinion does not constitute binding precedent. A trial judge may consider such an opinion by another judge, but failure to do so in no way undermines or affects the sustainability of the judge's ultimate decision. The decision in this case must rise or fall on the facts as developed in the documentary record, analyzed in light of the controlling legal principles.

 
Affirmed on the appeal. The cross-appeal is dismissed as moot.

The City has not cross-appealed from the trial court's exclusion of one property from the area in need of redevelopment.

The resolution included an additional property in Block 316, namely Lot 21 containing the Investors Savings Bank building, which the Needs Report had not recommended for inclusion. The resolution subsequently adopted by the City Council on December 5, 2007 also included this additional lot. As we have noted, see supra, n.1, the City has not cross-appealed from that aspect of the orders under review.

(continued)

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A-3590-08T1

May 6, 2010