APPLIED MONROE LENDER, LLC v. CITY OF HOBOKEN PLANNING BOARD and CITY OF HOBOKEN
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3048-15T3
APPLIED MONROE LENDER, LLC,
Plaintiff-Appellant,
v.
CITY OF HOBOKEN PLANNING
BOARD and CITY OF HOBOKEN,
Defendants-Respondents.
_______________________________
Argued November 27, 2017 – Decided March 9, 2018
Before Judges Sabatino, Ostrer and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No.
L-1394-15.
Kevin J. Coakley argued the cause for
appellant (Connell Foley, LLP, attorneys;
Kevin J. Coakley, of counsel and on the brief;
Allyson M. Kasetta, on the brief).
Dennis M. Galvin argued the cause for
respondent City of Hoboken Planning Board (The
Galvin Law Firm, attorneys; Dennis M. Galvin,
on the brief).
Andrew M. Brewer argued the cause for
respondent City of Hoboken (Maraziti Falcon,
LLP, attorneys; Andrew M. Brewer, on the
brief).
PER CURIAM
Plaintiff Applied Monroe Lender, LLC, appeals from a March
18, 2016 trial court order denying its motion for summary judgment
and granting defendants the City of Hoboken (Hoboken) and Hoboken
Planning Board's (Board) cross-motions for summary judgment. On
appeal, plaintiff argues, among other things, the court erred in
denying it the right to seek site plan approval without a
designation as a redeveloper. We affirm.
I.
We discern the following relevant facts from the record on
appeal. On May 20, 1998, Hoboken, through ordinance R-318, adopted
a redevelopment plan for the northwest industrial area of the city
(Northwest Redevelopment Plan). On October 12, 2011, plaintiff
purchased property at 800-822 Monroe Street, designated as block
87, which was subject to the Northwest Redevelopment Plan.
Plaintiff acquired this property by deed in accordance with a
Bankruptcy Court order authorizing the chapter seven trustee to
sell the real property of the prior owner, who had been designated
as a redeveloper.
The first Bankruptcy Court order permitting the sale provided
the property could be sold "free and clear from any and all
restrictions that run with the land, including . . . the
'Redevelopment Agreements.'" However, the order also stated it
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would not "diminish, limit, or otherwise affect the applicability
to the Property of all of Hoboken's zoning, planning, or
construction requirements, specifically including without
limitation the provisions of Hoboken's Northwest Redevelopment
Plan."
In a subsequent order, meant to clarify the first, the
Bankruptcy Court declined to rule on issues of state law, including
whether plaintiff had to be a designated as a redeveloper in order
to submit a site plan.
On October 3, 2014, plaintiff submitted an application to the
Board to develop the property, proposing construction of a 186-
unit residential building with 186 off-street parking spaces,
courtyard amenities, and associated improvements. On October 6,
2014, the Board's secretary sent an email to plaintiff's counsel
confirming receipt of the application and requesting the
resolution that designated plaintiff as redeveloper of the
property. Plaintiff's counsel replied on October 16, 2014, stating
plaintiff had standing to seek site approval without such a
designation.
On November 5, 2014, the Board's secretary emailed
plaintiff's counsel and asked plaintiff to include a copy of the
checklist for site plan application with its submission of the
application package to the Board. The secretary also sent a letter
3 A-3048-15T3
to plaintiff's counsel informing him that a completeness review
by the Board's subcommittee would take place on November 12, 2014.1
On November 6, 2014, plaintiff's counsel sent an updated
submission package to the Board. That same day, the Board's
engineer and planner sent a review letter, pertaining to
plaintiff's application, to the Board, the Board's counsel, and
plaintiff's counsel. This letter explained the previous owner had
been the designated redeveloper for the property and provided the
definition of "redeveloper." It also explained, "The City has a
formal procedure for making application for designation by the
City Council as a redeveloper." The Board's counsel and
plaintiff's counsel later stated they did not receive the letter.
On November 12, 2014, plaintiff appeared at the completeness
review, and the next day, the Board sent plaintiff a letter,
advising that its application was incomplete. On November 14,
2014, plaintiff responded by letter, alleging inconsistencies by
1
Plaintiff also submitted the application to the Flood Plain
Administration (FPA) at the same time. The FPA sent a response
letter highlighting areas of concern, which plaintiff took as a
denial. Plaintiff responded to the FPA saying it would be
appealing the decision, and plaintiff sent the letter from the FPA
to the Board. The FPA then sent a letter to the Board clarifying
it had not yet made any determination regarding the application.
On February 12, 2015, the Board secretary sent a letter to
plaintiff's counsel to inform plaintiff the Board would not be
acting on its appeal from the FPA, as the FPA had not made a
determination.
4 A-3048-15T3
the Board's professionals and advising the Board that plaintiff
believed it had standing as the owner of the property. The letter
also stated plaintiff would consider the application approved if
no action was taken by February 20, 2015. Thereafter, the Board
sent a revised review letter, again deeming the application
incomplete.
A December 11, 2014 letter from the Board's counsel again
advised plaintiff it could not participate in the Northwest
Redevelopment Plan without being designated as a redeveloper and
its application remained incomplete. On December 22, 2014,
plaintiff's counsel sent a letter to the Board, reiterating its
aforementioned position. The letter also alleged the Board's
engineer had made "gross misstatements and negligence." The
Board's attorney responded in a letter dated January 15, 2015,
stating plaintiff would be given an opportunity for a hearing and
listing checklist requirements that would be at issue.
The hearing was held on February 3, 2015. At the end of the
hearing, the Board deemed the application incomplete based upon
missing checklist items as well as plaintiff's lack of standing
because it was not designated as a redeveloper.
On April 2, 2015, plaintiff filed a four-count complaint with
the Law Division asserting it completed the requirements for site
plan approval, had standing to seek such approval without
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redeveloper status and the Board's failure to act upon its
application violated the Municipal Land Use Law,
N.J.S.A. 40:55D-
10.3, and entitled plaintiff to automatic approval2. The Board
filed an answer on May 22, 2015, and Hoboken filed a motion for
intervention on June 10, 2015.
On November 19, 2015, plaintiff moved for summary judgment,
and defendants filed cross-motions in opposition. On March 18,
2016, the motion judge rendered an oral opinion, denying
plaintiff's motion, and granting defendants' cross-motions. The
judge found plaintiff procedurally compliant with the checklist,
but concluded plaintiff's application was not entitled to
2
Pursuant to
N.J.S.A. 40:55D-10.3,
An application for development shall be
complete for purposes of commencing the
applicable time period for action by a
municipal agency, when so certified by the
municipal agency or its authorized committee
or designee. In the event that the agency,
committee or designee does not certify the
application to be complete within 45 days of
the date of its submission, the application
shall be deemed complete upon the expiration
of the 45-day period for purposes of
commencing the applicable time period, unless:
a. the application lacks information indicated
on a checklist adopted by ordinance and
provided to the applicant; and b. the
municipal agency or its authorized committee
or designee has notified the applicant, in
writing, of the deficiencies in the
application within 45 days of submission of
the application.
6 A-3048-15T3
automatic approval,
N.J.S.A. 40:55D-10.3, because defendants did
not act in bad faith or purposefully delay review. Ultimately,
the judge determined "the policy as interpreted and in practice
requires that a plaintiff who wishes to develop in a redevelopment
area must first be qualified and approved as a redeveloper."
Accordingly, the judge found plaintiff had no standing to seek
plan approval.
This appeal followed. On appeal, plaintiff argues it had
standing because there is no requirement that a property owner
must be designated as a redeveloper before seeking site plan
approval. Plaintiff also argues the Local Redevelopment and
Housing Law (LRHL),
N.J.S.A. 40A:12A-1 to -63, provides for both
development and redevelopment, and property owners can develop
"freely . . . in the absence of a prohibition within the
development plan." In essence, plaintiff argues the LRHL allows
private property owners to develop their properties. Plaintiff
also argues it is entitled to automatic approval under
N.J.S.A.
40:55D-10.3. We disagree.
II.
The Legislature enacted the LRHL to empower and assist
municipalities in their efforts to arrest and reverse
deterioration in housing, commercial, and industrial
installations.
N.J.S.A. 40A:12A-2. The LRHL provides a municipal
7 A-3048-15T3
governing body the power to investigate and determine whether an
area is in need of redevelopment, and ultimately adopt a
redevelopment plan.
N.J.S.A. 40A:12A-4. As such, the LRHL
authorizes the Northwest Redevelopment Plan and further provides
the municipality may implement the redevelopment plan or empower
a redevelopment entity to do it.
N.J.S.A. 40A:12A-4c. Under
N.J.S.A. 40A:12A-8f, the municipality, or its redevelopment
entity, may "[a]rrange or contract with . . . redevelopers for the
planning, replanning, construction, or undertaking of any project
or redevelopment work . . . ." A redeveloper is defined as:
any person, firm, corporation or public body
that shall enter into or propose to enter into
a contract with a municipality or other
redevelopment entity for the redevelopment or
rehabilitation of an area in need of
redevelopment, or an area in need of
rehabilitation, or any part thereof, under the
provisions of this act, or for any
construction or other work forming part of a
redevelopment or rehabilitation project.
[
N.J.S.A. 40A:12A-3 (emphasis added).]
As the Northwest Redevelopment Plan was enacted by Hoboken
ordinance, we employ statutory construction to determine whether
Hoboken intended a property owner to be designated a "redeveloper"
as a prerequisite to site plan approval. As with statutes, we
construe ordinances to determine legislative intent. Atlantic
Container, Inc. v. Twp. of Eagleswood Planning Bd., 321 N.J. Super.
8 A-3048-15T3
261, 269 (App. Div. 1999). "The general principle is that
ordinances should be liberally construed in favor of the
municipality." Id. at 270 (citing L & L Clinics, Inc. v. Town of
Irvington,
189 N.J. Super. 332, 336 (App. Div. 1983); see also
Trust Co. of N.J. v. Planning Bd. of Borough of Freehold,
244 N.J.
Super. 553, 568 (App. Div. 1990) (citation omitted).
The Northwest Redevelopment Plan does not define redeveloper,
despite its repeated use of the term, and does not explicitly
state that an entity must be designated a redeveloper in order to
submit a site plan. However, the plan declares in its preamble
that Hoboken has the power to "[a]rrange or contract with public
agencies or private redevelopers for any project, infrastructure
or redevelopment work." The plan specifically delineates blocks
in need of redevelopment, including block 87, plaintiff's
property. Block 87 is in zone two and was previously zoned
industrial; however, the redevelopment plan contemplated
residential buildings. The language of the plan references a
"redeveloper designation" throughout the section pertaining to
plaintiff's property. We reject plaintiff's contention that these
references are merely historical recitations. Moreover, as
mentioned above, redeveloper is defined in the LRHL as "[an entity]
that shall enter into or propose to enter into a contract with a
municipality or other redevelopment entity[.]"
N.J.S.A. 40A:12A-
9 A-3048-15T3
3. Furthermore, plaintiff, an experienced property developer in
Hoboken, knew Hoboken typically requires such a designation.
Indeed, plaintiff purchased the property in a bankruptcy sale
knowing the original owner was required to be, and was, designated
as a redeveloper.
In Jersey Urban Renewal, LLC v. City of Asbury Park, we held
a property owner could not bring an application to the planning
board without being designated as a redeveloper.
377 N.J. Super.
232, 238-39 (App. Div. 2005). The City of Asbury Park adopted an
ordinance designating certain property as part of a Waterfront
Redevelopment Plan. Id. at 234. The plaintiff owned property
within the redevelopment zone and applied to the planning board
for site plan approval for a proposed renovated building. Ibid.
Asbury Park and the designated redevelopment master developer,
Asbury Partners, objected to the plaintiff's site plan,
contending, among other things, that the plaintiff was not
designated as a subsequent developer. Ibid. On appeal, we agreed,
stating "simply put, plaintiff's application was not complete as
it had not complied with the procedural requirements of the Plan."
Id. at 239. Likewise, here we find plaintiff was required to
obtain a redeveloper designation prior to submitting a site plan
but did not. Accordingly, it also lacked standing to submit a
site plan.
10 A-3048-15T3
Plaintiff asks us to consider Britwood Urban Renewal, LLC v.
City of Asbury Park,
376 N.J. Super. 552 (App. Div. 2005), but
reliance on that decision is misplaced. There, the plaintiff was
merely "a property owner seeking municipal approval to renovate
its building which is located within the redevelopment zone." Id.
at 565 (citing
N.J.S.A. 40A:12A-8j). Under
N.J.S.A. 40A:12-8j, a
municipality or designated redevelopment entity may "[m]ake,
consistent with the redevelopment plan: (1) plans for carrying out
a program of voluntary repair and rehabilitation of buildings and
improvements . . . ." In Britwood, the redevelopment plan exempted
the plaintiff's property if renovations were made within a year.
Id. at 557.
The Northwest Redevelopment Plan does not contain any such
provision. Here, the redevelopment plan does not clearly prohibit
a property owner from developing its property, but there was a
redeveloper designated and contemplated by the plan. There was
no master redeveloper for the Northwest redevelopment area;
however, there were specific redevelopers designated for various
properties within the redevelopment area, including plaintiff's
particular parcel. The Northwest Redevelopment Plan states,
"Whereas a single entity has been designated as redeveloper of all
of Block 80/81 . . . and Block 87 . . . ." As in in Jersey Urban
Renewal, a redeveloper had been designated for the block where the
11 A-3048-15T3
property is located to be redeveloped. Additionally, nothing in
the redevelopment plan exempted plaintiff from following the
procedures set forth in the plan. Thus, the facts are sufficiently
similar to Jersey Urban Renewal, and we discern no error in the
trial judge's determination that plaintiff had to have been
designated as a redeveloper before being able to submit an
application for site plan approval.
As such, plaintiff must develop its property in accordance
with the Northwest Redevelopment Plan. Jersey Urban Renewal,
377 N.J. Super. at 236 ("[A]ll properties located in the zone are
governed by the zoning strictures adopted by the Plan. Plaintiff
cannot remove the property from the requirements of the Plan by
refusing to comply with them.").
Moreover, while the Northwest Redevelopment Plan does not
explicitly demand such a requirement, there was testimony at the
subcommittee hearing November 12, 2014, that the city had never
written a redevelopment plan that did not have this requirement.
Additionally, the trial judge correctly deferred to the
municipality's actions. See Cell S. of N.J. v. Zoning Bd. of
Adjustment,
172 N.J. 75, 81-82 (2002).
Because we agree with the trial court's determination
plaintiff needed to be designated as a redeveloper in order to
12 A-3048-15T3
submit a complete application, we need not reach the issue whether
its application should have been automatically approved.
Affirmed.
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