LARRY PRICE v. CITY OF UNION CITY
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0285-16T4
LARRY PRICE,
Plaintiff-Appellant,
v.
CITY OF UNION CITY,
Defendant-Respondent,
and
SKY POINTE, LLC, and DHJ
HOLDINGS, LLC,
Defendants/Intervenors-
Respondents.
___________________________
Argued December 20, 2017 – Decided February 13, 2018
Before Judges Fuentes, Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No. L-
4815-15.
Larry Price, appellant, argued the cause pro
se.
R. Scott Fahrney argued the cause for
respondent City of Union City (Kaufman,
Semeraro and Leibman, LLP, attorneys; Mark J.
Semeraro and R. Scott Fahrney, on the brief).
Mark E. Duckstein argued the cause for
respondents Sky Pointe, LLC and DHJ Holdings,
LLC (Sills Cummis & Gross, PC, attorneys;
Kevin J. Moore, of counsel; Mark E. Duckstein
and Michael J. Pisko, of counsel and on the
brief).
PER CURIAM
Plaintiff Larry Price appeals from an August 17, 2016 order
dismissing his complaint in lieu of prerogative writs seeking to
invalidate defendant City of Union City's (Union City) designation
of an area in need of redevelopment, pursuant to the Local
Redevelopment and Housing Law (LRHL),
N.J.S.A. 40A:12A-1 to -73.
Union City adopted the report of a public planner, which
extensively details the deterioration of the redevelopment area.
Most of the properties in the area contain vacant and severely
dilapidated buildings. All but one of the properties located
within the redevelopment area are owned by defendant Sky Pointe,
LLC (Sky Pointe), and its wholly owned subsidiary, defendant DHJ
Holdings, LLC (DHJ).
Price alleges that Union City's designation is not supported
by substantial evidence, and that private efforts by developers
would have been sufficient to redevelop the area. He claims that
defendants Sky Pointe and DHJ are responsible for the dilapidation
and deterioration of the properties within the redevelopment area.
2 A-0285-16T4
Plaintiff also alleges that Union City should have used its police
powers to repair or demolish the buildings in the area.
Plaintiff's main contentions are that Union City designated
the area as a redevelopment area so that it could become a
"gatekeeper" and control the development of the area, and that Sky
Pointe is responsible for the area's deterioration. We reject
these arguments and affirm substantially for the reasons expressed
by Judge Francis B. Schultz in his August 5, 2016 oral opinion.
In February 2009 The Board of Commissioners for Union City
(Board) adopted a resolution which authorized the Planning Board
of Union City (Planning Board) to conduct a preliminary
investigation and hearing to determine whether Block 184, Lots
1.01 and 1.02, and Block 185, Lots 12, 14-17 and 30-42 (the
redevelopment area) met the criteria to be designated a
"redevelopment area" pursuant to the LRHL.
David Spatz, P.P., AICP, prepared a Redevelopment Area Report
for the Union City's Planning Board. The Planning Board held a
public hearing and on November 21, 2011, the Planning Board adopted
a resolution recommending the Board of Commissioners designate the
area as an area in need of redevelopment. No further action was
taken at this time.
On June 17, 2014, the Board of Commissioners adopted a
resolution requesting that the Planning Board review the 2009
3 A-0285-16T4
Redevelopment Report to determine if its recommendation that the
area be designated as a redevelopment area was still applicable.
Three months later, Spatz prepared an updated Redevelopment Area
Report (Report) for the Planning Board. The Report recommended
that the area qualify as a non-condemnation redevelopment area.
The Planning Board held public hearings on the matter, ultimately
adopting a November 2015 resolution recommending that the Board
designate the area as a non-condemnation redevelopment area
pursuant to the LRHL,
N.J.S.A. 40A:12A-1.
The same month, plaintiff filed a complaint in lieu of
prerogative writs. The complaint alleges that the conditions of
deterioration were likely to be corrected or ameliorated by private
effort; no proof of dilapidation detrimental to the safety, health,
morals or welfare of the community was demonstrated; any
dilapidation or deterioration was the result of the property
owner's lack of maintenance of the properties, and this "self-
imposed hardship cannot be the basis of zoning relief"; Union City
should have exercised its police powers to require the demolition
or repair of the properties; and Union City's claim that, because
it is located in PA-1, a Metropolitan Planning Area, "smart growth
planning principles would be served" by redevelopment is overly
broad, because all of Hudson County is located in a PA-1
Metropolitan Planning Area, and "a similar claim could be made
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about any site in Hudson County." Finally, the complaint alleges
that because, with the exception of one property owned by Union
City, all of the properties in the redevelopment area are owned
by a single property owner, "only one private party will benefit."
Judge Schultz found that the Report and the testimony of
Spatz provided substantial evidence that almost all of the property
fell within one of the categories in
N.J.S.A. 40A:12A-5. With
regard to plaintiff's arguments that the legislative intent of the
Act (pursuant to
N.J.S.A. 40A:12A-2, Findings, determinations,
declarations) required private efforts to redevelop an area be
inadequate, the judge explained he was "satisfied that private
efforts failed and that [the deterioration is] not likely to be
corrected or ameliorated by private effort." Judge Schultz also
discussed plaintiff's claims that the area was not "detrimental
to the health, safety, and morals of the community," and found
that "the report of Mr. Spatz, as well as the testimony of those
people . . . [who commented at Planning Board's hearings] certainly
suggest otherwise." As for plaintiff's claims that Sky Pointe
created the deterioration, and it was a self-imposed hardship,
Judge Schultz explained that:
[t]he moving party here is Union City – not
the developer . . . there was no evidence of
neglect on the part of Sky Pointe that they
burned things or broke windows or went out
there and did something untoward to give the
5 A-0285-16T4
façade of . . . deteriorated dwellings and
property . . . [a]nd I just don't find that .
. . argument about a self-imposed hardship
would prevent the city from finding this to
be an area in need of redevelopment.
Finally, Judge Schultz explained that Union City was not
required to use its police powers to "knock these buildings down"
instead of declaring the area as an area in need of redevelopment.
With regard to Sky Pointe potentially making money through the
Union City's redevelopment area designation, Judge Schultz
explained "that is not a reason to override the City's
determination . . . . People are allowed to make money, it's not
a crime. And it's not a known obstacle to the city deeming this
an area in need of redevelopment."
The area that Union City has designated a non-condemnation
redevelopment area is approximately 3.34 acres, located in the
southeastern portion of Union City. It includes thirteen
properties. The rear portions of the properties abut the Palisades
Cliffs, with a view of the New York City skyline. Sky Pointe and
its subsidiary DHJ own all but one of the properties, which have
been vacant for seven to eleven years.
In preparing the Report, Spatz conducted:
interior and exterior inspections of the
properties and structures, which were made on
July 29, 2009 and June 23, 2014, a review of
the existing land use for the property, [a]
review of zoning and planning documents, as
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well as a review of the City's tax, police and
building records for the area.
The Report extensively details each building's deterioration
and dilapidation. The Report describes the properties as "vacant
and unproductive," which is "detrimental to the health, safety,
morals and welfare of the community." All of the buildings are
in poor condition, and most have significant damage and are
uninhabitable without significant renovation. The damage to each
building includes defective roof shingles, retaining walls above
the cliffs in the rear of the properties, electrical panels, hot
water heaters, chimneys, windows, and support beams. Interior
water damage has caused mold and extensive interior and exterior
damage exists.
One building has significant damage from a fire that
effectively gutted the building. Three of the properties do not
contain buildings; two contain parking lots and one property is
landlocked, containing mostly cliffs.
The Report discusses police reports for the area that indicate
many of the properties attract "vagrants and vandals who continue
to illegally trespass, damage the building and parcel, engage in
illicit drug use, [and] engage in verbal altercations with one
another."
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Several of the properties had previously been approved for
development. In 2005, one property was approved for construction
of a twenty-one story, thirty-two unit apartment building, though
no action was taken. That same year, another property was approved
for construction of a twenty story, twenty-eight unit apartment
building; however, again no action was taken. Finally, a third
property was previously approved in 2007 for construction of an
eighteen story, ninety unit apartment building, and again, no
action was ever taken. The area is located in a low density
residential zone, which permits one family dwellings, two family
dwellings, three family dwellings, municipal uses and public parks
and playgrounds.
The Report analyzes the criteria to designate an area in need
of redevelopment under
N.J.S.A. 40A:12A-5, and addresses criterion
N.J.S.A. 40A:12A-5(a), finding that the buildings in the area "are
in a substandard, unsafe, unsanitary and dilapidated condition,
and are therefore conducive to unwholesome living or working
conditions." Additionally, because the buildings were constructed
before 1978, the buildings are potentially affected by the
existence of lead paint.
With regard to criterion
N.J.S.A. 40A:12A-5(b), the Report
finds that one property had been abandoned and is no longer used
for commercial purposes, and had also been designated by the New
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Jersey Department of Environmental Protection (NJ DEP) as an active
site with confirmed contamination.
Regarding criterion
N.J.S.A. 40A:12A-5(c), the Report
explains that all of the properties "contain steep slope areas.
By reason of their location, remoteness, lack of means of access
to developed sections or portions of the municipality . . . [they]
are not likely to be developed through the instrumentality of
private capital." The Report also addresses the previously-
approved site plans, noting that none of the projects had actually
begun.
Concerning criterion
N.J.S.A. 40A:12A-5(d), the Report
explains that:
By reason of dilapidation, faulty arrangement
or design, deleterious land uses, or any
combination of these or other factors the
buildings in the [area] are detrimental to the
safety, health, morals or welfare of Union
City and the surrounding neighborhood . . .
[there are] 12 properties . . . [with] 12
separate driveways, most of which required
vehicles to back out onto those roadways. . .
. The proliferation of this many individual
driveways produces concerns for traffic safety
on such a busy street . . . The deteriorated
condition of the [area] exerts a negative
impact on the surrounding neighborhood . . .
[t]his negative impact is reflected in police
reports for crimes within the [area]. Between
2005 and 2008, there were 105 separate reports
regarding properties in the [area], including
burglaries, suspicious persons, fires,
criminal mischief and trespassing.
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Finally, regarding criterion
N.J.S.A. 40A:12A-5(h), the
Report indicates that:
The City of Union 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 [area] as an area in need
of redevelopment include: the revitalization
of the State's Cities and Towns by the
protection, preservation and development of
valuable human and economic assets and the
improvement of livability and sustainability
by investing public resources in accordance
with current plans that are consistent with
the provisions of the State Plan; building on
the assets of cities and towns such as their
labor force, available land and buildings,
strategic locations and diverse populations;
the conservation of the State's natural
resources and systems by preserving the
Palisades cliffs through a comprehensive
development plan; the promotion of beneficial
economic growth, development and renewal for
all residents of New Jersey; to ensure sound
and integrated planning and implementation
statewide and; urban revitalization through
the preparation of plans that promote
revitalization, economic development and
infrastructure investments, coordinate
revitalization planning among organizations
and governments, support housing programs and
adaptive reuse.
The City's recently adopted Master Plan
recommends that the properties in the [area]
be designated, Mid Rise Residential/Steep
Slope. The general objectives for Multi
Family, Mid Rise Districts include the
expansion of existing multifamily districts
and creation of opportunities for high density
housing . . . [t]he designation of the [area]
10 A-0285-16T4
as an area in need of redevelopment would be
consistent with the goals and objectives of
the Master Plan.
The Report recommends to the Board that the area be qualified as
a non-condemnation redevelopment area.
The Planning Board held two public hearings, where it invited
members of the Planning Board and the public to ask questions
after Spatz presented the Report. Spatz testified that he
conducted several site inspections of the area, in addition to
reviewing building inspections, NJ DEP and police reports. At
both hearings, the comments from the public were mixed, with some
supporting a redevelopment designation, and others critical of Sky
Pointe's role in the dilapidation and deterioration of the
properties.
"When reviewing a trial court's decision regarding the
validity of a local board's determination, we are 'bound by the
same standards as was the trial court.'" Jacoby v. Zoning Bd. of
Adjustment of Borough of Englewood Cliffs,
442 N.J. Super. 450,
462 (App. Div. 2015) (quoting Fallone Props., L.L.C. v. Bethlehem
Twp. Planning Bd.,
369 N.J. Super. 552, 562 (App. Div. 2004)).
This court "give[s] deference to the actions and factual findings
of local boards and may not disturb such findings unless they were
arbitrary, capricious or unreasonable." Ibid. However, a
municipal entity's "decision is 'invested with a presumption of
11 A-0285-16T4
validity,'" 62-64 Main St., L.L.C. v. Mayor of City of Hackensack,
221 N.J. 129, 157 (2015) (quoting Levin v. Twp. Comm. of
Bridgewater,
57 N.J. 506, 537 (1971)), and "[t]he challenger of
municipal action bears the 'heavy burden' of overcoming this
presumption of validity." Vineland Constr. Co. v. Twp. of
Pennsauken,
395 N.J. Super. 230, 256 (App. Div. 2007) (quoting
Bryant v. City of Atlantic City,
309 N.J. Super. 596, 610 (App.
Div. 1998)).
The actions of a board must be based on "substantial
evidence." Ibid. As long as the board's actions are "supported
by substantial evidence in the record, a court is bound to affirm
that determination." 62-64 Main St.,
221 N.J. at 157. "This
heightened deference standard is codified in the LRHL, which
provides that an 'area in need of redevelopment' designation 'shall
be binding and conclusive upon all persons affected by
the determination' if it is 'supported by substantial
evidence and, if required, approved by the commissioner.'" ERETC,
L.L.C. v. City of Perth Amboy,
381 N.J. Super. 268, 277-78 (App.
Div. 2005) (quoting
N.J.S.A. 40A:12A-6(b)(5)(c)). "Accordingly,
it is not for the courts to 'second guess' a municipal
redevelopment action 'which bears with it a presumption of
regularity.'" Id. at 278 (quoting Forbes v. Bd. of Trs.,
312 N.J.
Super. 519, 532 (App. Div. 1998)).
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Moreover, it is presumed that redevelopment determinations
are accompanied by adequate factual support. Hutton Park Gardens
v. Town Council of W. Orange,
68 N.J. 543, 564-65
(1975). "[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 Realty Dev., Inc. v. Borough of Paulsboro,
191 N.J. 344, 373 (2007). Substantially for the reasons expressed by
Judge Schultz, we affirm.
Affirmed.
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