LARRY PRICE v. CITY OF UNION CITY
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5294-15T4
LARRY PRICE,
Plaintiff-Respondent,
v.
CITY OF UNION CITY,
Defendant-Appellant.
_____________________________
Argued November 9, 2017 – Decided December 21, 2017
Before Judges Koblitz, Manahan and Suter.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
2584-15.
R. Scott Fahrney argued the cause for
appellant (Kaufman, Semeraro & Leibman, LLP,
attorneys; Mark Semeraro and R. Scott Fahrney,
on the briefs).
Larry Price, respondent, argued the cause pro
se.
PER CURIAM
In this action in lieu of prerogative writs, defendant City
of Union City (City) appeals from an order declaring that the
Board of Commissioners' (Commissioners) May 5, 2015 resolution and
June 30, 2015 redevelopment plan are null and void. We reverse.
In August 2014, the Commissioners adopted a resolution
authorizing the Union City Planning Board (Board) to conduct a
preliminary investigation and report to determine whether the
property designated as Block 210, Lots 11-16 constituted an area
in need of redevelopment according to the criteria set forth in
N.J.S.A. 40A:12A-5 of the Local Redevelopment and Housing Law
(LRHL),
N.J.S.A. 40A:12A-1 to -73. The investigation was conducted
by Community Housing & Planning Associates, Inc., the City's
professional planning consultant. David Spatz, the City Planner,
prepared the Redevelopment Area Report (Report) for the Board on
behalf of Community Housing. The Report outlined the criteria for
redevelopment per
N.J.S.A. 40A:12A-5, as well as Spatz's
evaluation and conclusion for redevelopment of the area under
N.J.S.A. 40A:12A-5(d), (e) and (h).
Lots 11 through 14 consist of a parking lot. The parish
rectory for St. John's Lutheran Church occupies Lots 15 and 16.
Both the rectory and parking lot are owned and utilized by the
church. Public use of the parking lot is permitted by the church
on a donation basis.
In preparation of the Report, Spatz indicated that "[s]everal
research methods were utilized, including a physical inspection
2 A-5294-15T4
of the properties and structures . . . a review of the existing
land use for the property, review of zoning and planning documents,
as well as a review of [the] City's tax, police and building
records for the area." The Report described Lots 15 and 16 as:
contain[ing] a [four-]story dwelling in fair
condition; the building is being utilized as
the parish house for the adjacent church. The
building is over 100 year[s] old which
indicates many of the electrical, plumbing and
heating systems may not meet current building
codes and may be in need of repair or
replacement. The age of the building also
indicates the probably [sic] presence of lead
based paint. An interior inspection noted
that there was a significant leak in the
basement caused by cracks in the foundation
wall.
A municipal governing body may conclude by resolution that a
delineated area is in need of redevelopment if:
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.
. . . .
h. The designation of the delineated area is
consistent with smart growth planning
principles adopted pursuant to law or
regulation.
[
N.J.S.A. 40A:12A-5(d), (h).]
3 A-5294-15T4
The Report concluded that three criteria of
N.J.S.A. 40A:12A-
5 were met: criterion (d), due to the age and dilapidation of the
property; criterion (e), due to the growing or total lack of proper
utilization of areas; and criterion (h), as in accordance with
smart growth principles.1
In March 2015, the Board held a hearing to review the Report
and determine if the statutory criteria for redevelopment were
satisfied. The Board heard testimony from Spatz and the plaintiff,
Larry Price.
Spatz testified regarding the criteria and the
determinations relative to those criterion noted in the Report.
Spatz testified that the property met criterion (d), as the
basement flooding would affect the electrical system in the
building; the probable presence of lead paint was a danger to the
occupants; and the potential for collapse due to the cracked
foundation was dangerous. Spatz cited to the public policy benefit
affordable housing provided through redevelopment, and the City's
own master plan objectives. Concerning criterion (h), Spatz
testified that the City is located in Planning Area A-1 (PA-1) of
the State's Development and Redevelopment Plan, which promotes
smart growth.
1
The City does not appeal the court's holding relating to
criterion (e).
4 A-5294-15T4
Price testified that although the condition of the building
was a concern, it was not detrimental to the surrounding community.
Price admitted he based his determination on "life experience" as
he was not qualified as an expert in planning. Price asserted
that Spatz's consideration of the PA-1 planning area that any site
in the City could be designated in need of redevelopment.
Two lay witnesses also testified during the hearing,
including a parishioner, Joseph Deurso, who had worked as an
electrician for many years. Deurso testified regarding the
condition of the rectory basement, which was flooded and in bad
shape. Although not qualified as an expert, Deurso offered his
opinion that the building was unsafe and the chimney was in danger
of collapsing. The second witness, Brandon Rocker, was a resident
of the City. Rocker testified that he had fallen multiple times
in the parking lot next to the church.
On March 24, 2015, the Board memorialized its findings by
resolution which declared the area in need of redevelopment, in
accordance with
N.J.S.A. 40A:12A-5(d), (e), and (h). In the
resolution, the Board stated in pertinent part:
It further finds pursuant [to] criteria (d)
By reason of dilapidation, faulty arrangement
or design, deleterious land uses, or any
combination of these or other factors the
building in the study is detrimental to the
safety, health, morals or welfare of [the]
City and the surrounding neighborhood. [T]he
5 A-5294-15T4
residential building is over 100 years in age
and contains many elements that would [render]
it in substandard condition. It cannot
provide handicapped accessibility due to its
age and the topographic conditions on the
site. The totality of negative conditions
would indicate that it would not be cost
effective to repair and/or replace the various
systems. And pursuant [to] criteria (h) The
City . . . is located in the PA-1, Metropolitan
Planning Area of the New Jersey State
Development and Redevelopment Plan;
additionally, the City is located within the
designated Hudson County Urban Complex. Smart
growth planning principles met by the
designation of the study area as an area in
need of redevelopment include: the
revitalization of the State's [c]ities and
[t]owns by the protection, preservation and
development . . . in accordance with . . . the
provisions of the State Plan; . . . .
. . . .
. . . The study area contains a
deteriorated structure and an underutilized
parking area which could potentially provide
valuable and useful development opportunities
for affordable housing. Additionally, the
designation of the area would be consistent
with smart growth planning principles as
stated in the State Development and
Redevelopment Plan, as well as the City's
Master Plan.
The Commissioners held a hearing on April 7, 2015 to discuss
the Board's recommendation. The principal witness was Spatz, who
reiterated the information provided in the Report. Mayor Brian
Stack also testified as to the need and importance of affordable
6 A-5294-15T4
housing.2 Subsequently in June, the Commissioners determined the
area to be a non-condemnation redevelopment area and adopted a
resolution memorializing their vote. The Commissioners
unanimously declared the area in need of redevelopment and
authorized the Board to prepare a redevelopment plan.
On June 15, 2015, Spatz presented the redevelopment plan to
the Commissioners. After a public hearing, the plan was adopted
and an ordinance memorializing its adoption was passed. The
resolution noted the "Redevelopment Plan is being adopted as a
'Non-Condemnation Redevelopment Plan'; and as such explicitly
precludes the City from using the power of eminent domain to
acquire any property in the redevelopment area[.]" Subsequently,
Price filed two complaints in lieu of prerogative writs, which
were consolidated, challenging the Commissioners' designation of
the properties as an area of redevelopment and the redevelopment
plan.
In a written opinion, the Law Division judge declared the
City's redevelopment resolution and plan null and void. The judge
held as to criterion (h) that the "[S]tate's master plan and smart
growth principles are not independent grounds for finding an area
2
The plan called for redevelopment of the lots for construction
of affordable housing for developmentally disabled adults.
7 A-5294-15T4
'in need of development'." The judge held "a municipality may
only zone or regulate land on smart growth principles after it has
adopted the state's smart growth principles in its plan."3
Further, the judge did not find a detrimental economic,
social, or aesthetic impact of the rectory on the community that
would satisfy criterion (d). The judge found insufficient evidence
to conclude the interior of the parish building was dangerous and
noted that Spatz's report included only "casual observations[,]"
and was conclusory. The judge acknowledged that while Price, in
contravention to the plan, "did not produce expert testimony," the
City did not provide sufficient evidence of "detriment" to the
community within the Report or the resolution. Given the judge's
determination relative to the failure by the City to satisfy any
of the statutory criteria, he did not determine if the
redevelopment plan conflicted with state law or the City's master
plan.4
I.
The City raises the following points on appeal:
3
As our decision is premised upon the City's satisfaction of
criterion (d), we do not address the judge's holding on criterion
(h).
4
As to criterion (e), which is not before us, the judge held the
statute's requirement that ownership issues must cause the
properties condition was not met as the church owned the property
free and clear. Thus, the judge held the City's reliance on
criterion (e) failed as well.
8 A-5294-15T4
POINT I
THE COURT ERRED IN HOLDING THAT CRITERION (H)
WAS NOT A SUFFICIENT BASIS TO DECLARE THE AREA
IN NEED OF REDEVELOPMENT.
POINT II
THE COURT ERRED IN FINDING THAT THERE WAS NOT
"SUBSTANTIAL EVIDENCE" ON THE RECORD TO UPHOLD
THE CITY'S DETERMINATION THAT CRITERION (D)
APPLIED TO THE SUBJECT PROPERTY.
POINT III
IF THE APPELLATE DIVISON FINDS THAT THE COURT
ERRED IN ITS HOLDING BELOW, AND FINDS THE
DECLARATION OF THE AREA IN NEED OF
REDEVELOPMENT, THE COURT MUST EXAMINE THE
FOLLOWING:
[A]. THE REDEVELOPMENT PLAN IS NOT SPOT
ZONING.
[B]. THE REDEVELOPMENT PLAN DOES NOT
CONFLICT WITH STATE LAW.
[C]. THE REDEVELOPMENT PLAN DOES NOT
CONFLICT WITH THE MASTER PLAN.
A municipal governing body has the authority to determine by
resolution whether areas that are within its jurisdiction are
areas in need of redevelopment, but must first, by resolution,
"authorize the planning board to undertake a preliminary
investigation to determine whether the proposed area is a
redevelopment area . . . ."
N.J.S.A. 40A:12A-6(a). The planning
board will make the determination after public notice and a public
hearing, and then recommend to the municipal governing body whether
9 A-5294-15T4
it should designate the area in need of redevelopment.
N.J.S.A. 40A:12A-6(b). After receiving the recommendation, the
municipal governing body may adopt a resolution determining that
the area is in need of redevelopment.
N.J.S.A. 40A:12A-
6(b)(5)(b).
The role of the trial court in reviewing municipal actions
is limited to determining whether such actions are supported by
substantial credible evidence. See Levin v. Twp. Comm. of
Bridgewater,
57 N.J. 506, 537-39 (1971). It is not the province
of the trial court to "second guess" municipal action, "which
bears with it a presumption of regularity." Forbes v. Bd. of
Trustees,
312 N.J. Super. 519, 532 (App. Div. 1998).
The burden is on the party challenging the municipal action
to demonstrate that the action was "not supported by substantial
evidence, but rather is the result of arbitrary or capricious
conduct on the part of the municipal authorities. Absent such a
demonstration [by] the objector, sufficient to raise a material
factual dispute, summary judgment must be granted in favor of [the
municipal authority]." Concerned Citizens of Princeton, Inc. v.
Mayor and Council of Princeton,
370 N.J. Super. 429, 453 (App.
Div. 2004) (citations omitted). Likewise, when reviewing the
decision of a trial court that has reviewed municipal action, we
are bound by the same standards as that of the trial court. Fred
10 A-5294-15T4
McDowell, Inc. v. Bd. of Adjustment of Wall,
334 N.J. Super. 201,
212 (App. Div. 2000). Questions of law are reviewed de novo.
Gallenthin Realty Dev., Inc. v. Borough of Paulsboro,
191 N.J.
344, 372 (2007).
II.
We commence our discussion by addressing whether the City
provided sufficient substantial evidence that satisfied criterion
(d).
Our Supreme Court has stated that "planning boards and
governing bodies . . . have an obligation to rigorously comply
with the statutory criteria for determining whether an area is in
need of redevelopment." 62-64 Main St., L.L.C. v. Mayor and
Council of Hackensack,
221 N.J. 129, 156 (2015). "In general, a
municipality must establish a record that contains more than a
bland recitation of applicable statutory criteria and a
declaration that those criteria are met." Gallenthin,
191 N.J.
at 373. "A resolution adopted by a planning board or governing
body should clearly articulate the factual findings that support
the statutory criteria for designating an area as in need of
redevelopment." 62-64 Main Street, L.L.C.,
221 N.J. at 157.
Still, "the discretion exercised by municipal authorities 'is not
unfettered.'" Ibid.
11 A-5294-15T4
Here, we are satisfied that the Report, coupled with Spatz's
unrebutted testimony, provided the required substantial evidence
to support the Board's classification as a non-condemnation area
in need of redevelopment under criterion (d). The Report found
criterion (d) applied based upon Spatz's testimony that the
basement flooding in the rectory would affect the electrical system
in the building; based upon the probable presence of lead paint,
which posed a danger to the occupants (and, we add, to those
members of the community who visited the rectory); and based upon
the potential for collapse due to the cracked foundation.
On the other hand, Price provided no evidence to rebut the
City's determination of the building's condition. No argument was
offered before the Board by Price that Spatz was not an experienced
city planner. Price only challenged whether the condition of the
building was "detrimental to the safety, health, welfare, and
morals of the community." The Board, in the exercise of its
discretionary authority, found that the property was in such a
condition and therefore it qualified as in need of redevelopment.
"Redevelopment designations, like all municipal actions, are
vested with a presumption of validity." Concerned Citizens,
370 N.J. Super. at 452 (citation omitted); 62-64 Main Street, L.L.C.,
221 N.J. at 157. Moreover, it is presumed that redevelopment
determinations are accompanied by adequate factual
12 A-5294-15T4
support. Hutton Park Gardens v. Town Council of W. Orange,
68 N.J. 543, 564-65 (1975) (citation omitted). "[A]bsent a
sufficient showing to the contrary, it will be assumed that
[municipalities'] enactments rest upon some rational basis within
their knowledge and experience." Ibid.; see also Gallenthin,
191 N.J. at 373.
III.
In sum, we conclude that the Report and the hearing record
provided substantial evidence for the decision by the Board
classifying the property as an area in need of redevelopment.
Consequently, that decision is afforded our deference as it was
not arbitrary, capricious or unreasonable. Jacoby v. Zoning Bd.
of Adjustment of borough of Englewood Cliffs,
442 N.J. Super. 450,
462 (App. Div. 2015).
Reversed.
13 A-5294-15T4
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