R. Neumann & Co. v. City of Hoboken , 437 N.J. Super. 384 ( 2014 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2775-12T1
R. NEUMANN & CO.,
APPROVED FOR PUBLICATION
Plaintiff-Appellant, September 23, 2014
v. APPELLATE DIVISION
CITY OF HOBOKEN, CITY COUNCIL OF
THE CITY OF HOBOKEN, DAWN ZIMMER,
MAYOR OF THE CITY OF HOBOKEN, and
PLANNING BOARD OF THE CITY OF HOBOKEN,
Defendants-Respondents.
________________________________________
Argued December 4, 2013 - Decided September 23, 2014
Before Judges Grall, Nugent and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Docket No.
L-6146-11.
Peter D. Dickson argued the cause for
appellant (Potter and Dickson, attorneys; R.
William Potter and Mr. Dickson, on the
brief).
Ronald D. Cucchiaro argued the cause for
respondents (Weiner Lesniak, LLP, attorneys;
Mr. Cucchiaro, of counsel and on the brief;
Richard Brigliadoro, on the brief).
The opinion of the court was delivered by
GRALL, P.J.A.D.
This appeal concerns Resolution No. 1 of the City Council
of the City of Hoboken (Council) adopted pursuant to the Local
Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49.
With that resolution, the Council delineated an "area in need of
rehabilitation" (AINreh), which "means any area determined to be
in need of rehabilitation pursuant to [N.J.S.A. 40A:12A-14]."
This AINreh includes public streets and private properties, some
of which are owned by plaintiff R. Neumann & Co. (Neumann) and
known as the "Neumann's Leathers" properties. The Council
adopted the resolution on October 19, 2011.
In delineating this AINreh, the Council relied on N.J.S.A.
40A:12A-14(a)(2)-(3) (recodified as N.J.S.A. 40A:12A-14(a)(6) by
L. 2013, c. 159 approved on Sept. 6, 2013). Those portions of
N.J.S.A. 40A:12A-14 permit a governing body to delineate an
AINreh if it determines that "a majority of the water and sewer
infrastructure in the delineated area is at least [fifty] years
old and is in need of repair or substantial maintenance" and
further determines that a "program of rehabilitation, as defined
in [N.J.S.A. 40A:12A-3], may be expected to prevent further
deterioration and promote the overall development of the
community." Ibid. (emphasis added). As defined in N.J.S.A.
40A:12A-3, "'[r]ehabilitation' means an undertaking, by means of
extensive repair, reconstruction or renovation of existing
2 A-2775-12T1
structures, with or without the introduction of new construction
or the enlargement of existing structures, in any area that has
been determined to be in need of rehabilitation or redevelopment
. . . ." (emphasis added). The rehabilitation must be
undertaken "to eliminate substandard structural or housing
conditions and arrest the deterioration of that area." Ibid.1
N.J.S.A. 40A:12A-14 also prescribes procedures a governing
body must follow prior to adopting a resolution delineating an
AINreh, and the Council followed them. The Council submitted
two draft resolutions to the City's Planning Board (Board) for
its consideration and recommendations as required by N.J.S.A.
40A:12A-14 — one in April and one in June 2011 that expanded the
1
The language emphasized is misquoted at page 46 of
Neumann's brief in an argument supporting its claim that the
trial court misapplied a provision of the LRHL. Neumann's
quotation omits the words "rehabilitation or."
It is important to stress that the LRHL distinguishes
between AINrehs and areas in need of redevelopment (AINreds).
"'Redevelopment area' or 'area in need of redevelopment' means
an area determined to be in need of redevelopment pursuant to
[N.J.S.A. 40A:12A-5 and 40A:12A-6] or [previously] determined .
. . to be a 'blighted area' pursuant to [L. 1949, c. 187,
N.J.S.A. 40:55-21.1 et al.] repealed by this act, both
determinations as made pursuant to the authority of Article
VIII, Section III, paragraph 1 of the Constitution, [which is
the Blighted Areas Clause]. . . ." N.J.S.A. 40A:12A-3. While
rehabilitation may be undertaken in both areas, the LRHL grants
a municipality authority to take or acquire property in an
AINred but expressly precludes exercise of eminent domain based
on delineation of an AINreh. See N.J.S.A. 40A:12A-15 (quoted in
footnote 8); N.J.S.A. 40A:12A-8(c).
3 A-2775-12T1
initial proposed area to include additional private properties
and the public streets that delineate the boundaries of the
area. The Council also directed the Board to conduct a public
hearing on the proposed resolution after giving notice by
publication and by mailing to the owners of record of properties
with 200 feet of the proposed delineated area, steps not
expressly required by N.J.S.A. 40A:12A-14.
On July 2, 2011, the Council passed a resolution extending
the forty-five-day statutory deadline for the Planning Board to
provide its recommendations, N.J.S.A. 40A:12A-14, and the Board
conducted a hearing and approved the draft resolution without
recommending any change on September 27, 2011.2 The Council
adopted Resolution No. 1 after accepting public comment at its
regular meeting.
This AINreh is a flag-shaped area in part of the
southwestern section of Hoboken that includes and is demarked by
2
The record provided on appeal includes a transcript of the
September 27, 2011 public hearing before the Board and the vote
of its members on a motion. Just prior to the vote, the Board's
attorney described the motion as follows: "[T]he Board will
recommend, that the study area be declared . . . an area in need
of rehabilitation based upon the findings of the Board and the
reports provided the Board's Planner and the Board's Engineer
which will be forwarded to the City Council . . . for their use
and that we're making that finding pursuant to the [LRHL]." The
record provided to us on appeal does not include a resolution or
correspondence transmitting its vote or the referenced materials
to the Council. But the Council's resolution indicates that the
reports were received.
4 A-2775-12T1
public streets. The flag's pole is Observer Highway from its
intersection with Jefferson Street easterly to its intersection
with Hudson Street. The triangular-shaped flag runs northerly
from and includes the intersection of Observer Highway's
intersection with Willow Avenue, and from that intersection
north to and including its intersection with Newark Street and
from that intersection along Newark Street in a southwesterly
direction to and including its intersection with Observer
Highway.
The private properties included in this AINreh are known as
Block 2, Lots 12 through and including Lot 26, and Block 2.1,
Lots 1 through and including Lot 10. The total area, including
the streets, is about 11.5 acres in area, only 3.3 of which are
private property.
The Neumann Leathers properties, which Neumann describes as
older industrial buildings, include all of the designated Lots
in Block 2 and Lots 1 through 4 plus Lots 9 and 10 in Block 2.1.
It does not include some private properties at the southwestern
tip of the triangle formed where Newark Street meets Observer
Highway. Neumann refers to the excluded properties as a "hole"
in the flag portion of the AINreh. According to defendants, the
shape is attributable to the exclusion of newer buildings and
prior designations of AINrehs and AINreds in the areas on the
5 A-2775-12T1
far side of the bordering streets. According to Neumann, the
shape is the consequence of the Council's true purpose —
protection of the artists, artisans and musicians that rent
space in Neumann's buildings and serve the City's interest in
cultural activities and retention of old industrial buildings
that have historical significance as reminders of the industry
that built the City. Those interests and concerns about the
sewer system are expressed in the City's 2004 Master Plan, its
2010 Reexamination Report and numerous press releases and public
statements from the mayor.
Following the adoption of Resolution No. 1 on October 19,
2011, Neumann filed a complaint naming as defendants the City of
Hoboken, the Council, the City's Mayor, Dawn Zimmer, and the
Board. The complaint asserts three claims in lieu of
prerogative writs, in which Neumann contends that Resolution No.
1 is not supported by adequate evidence, is motivated by a
pretextual purpose and is inconsistent with the LRHL. Neumann's
complaint also includes four counts seeking damages alleging
interference with its rights to property, free speech and equal
protection and asserting a "de facto taking" amounting to an
inverse condemnation. No testimony was taken in the trial
court, and the case was decided and the record developed before
6 A-2775-12T1
the Planning Board and Council, as supplemented by the motions
and motions for reconsideration in the trial court.
This appeal is from the trial court's order of January 11,
2013. With that order, the court denied Neumann's second motion
to reconsider a July 2, 2012 judgment dismissing the prerogative
writs claims with prejudice, and the court granted defendant's
summary judgment on the claims for damages.3 Because Neumann
presents no argument on appeal claiming error in the dismissal
of its claims for damages, any related error is deemed
abandoned. Muto v. Kemper Reinsurance Co., 189 N.J. Super. 417,
420-21 (App. Div. 1983).
On appeal, Neumann challenges the court's disposition of
the prerogative writ claims on six grounds: the court applied
the wrong standard of review; the water and sewer infrastructure
is not on the Neumann's Leathers property; the City does not own
the infrastructure and, therefore, a program of rehabilitation
cannot be expected to prevent further deterioration or promote
development of the community; the court misapplied Riggs v.
Township of Long Beach, 109 N.J. 601 (1998), in denying relief
based on pretextual motivation; the Legislature intended to
permit delineation of an AINreh based on the age and condition
3
Following the denial of its second motion for
reconsideration, Neumann filed a motion for leave to appeal,
which this court denied on October 5, 2012.
7 A-2775-12T1
of a majority of water and sewer infrastructure only if a
majority of the housing stock is also at least fifty years old;
and this AINreh violates the Blighted Areas Clause of the State
Constitution, N.J. Const. art. VIII, § 3, ¶ 1.
I
Where, as here, there is a challenge to a determination of
a municipal agency, "an appellate court is bound by the same
scope of review" as the trial court. Charlie Brown of Chatham,
Inc. v. Bd. of Adj. for Chatham Tp., 202 N.J. Super. 312, 321
(App. Div. 1985). Municipal action "bears with it a presumption
of regularity." Forbes v. Bd. of Tr. of Tp. of S. Orange Vill.,
312 N.J. Super. 519, 532 (App. Div.), certif. denied, 156 N.J.
411 (1998). Thus, "when reviewing a decision of a municipal
agency the trial court must recognize that the Legislature has
vested discretion in the municipal agency to make that
decision." Charlie Brown, supra, 202 N.J. Super. at 321; see
Booth v. Bd. of Adj., Rockaway Tp., 50 N.J. 302, 306 (1967).
"[B]ecause of their peculiar knowledge of local conditions,"
they "must be allowed wide latitude in the exercise of their
delegated discretion." Ibid. A panel of this court "need not
determine if [it] would have concurred in the designation but
8 A-2775-12T1
only if it is supported by substantial evidence." Forbes,
supra, 312 N.J. Super. at 532.4
The Supreme Court has recognized that "the extent to which
the various elements that informed persons say enter into the
blight decision-making process are present in any particular
area is largely a matter of practical judgment, common sense and
sound discretion." Lyons v. City of Camden, 52 N.J. 89, 98
(1968). In such circumstances, "courts realize that the
Legislature has conferred on the local authorities the power to
make the determination. If their decision is supported by
4
It is important to note that it is the governing body's, not
the planning board's, determination that a court reviews.
N.J.S.A. 40A:12A-14(a) vests the authority to delineate an
AINreh in the governing body not the planning board. The role
the Legislature has assigned to the planning board is advisory.
The governing body must submit a resolution to the municipal
planning board before adopting it, and give the planning board
forty-five days to submit "its recommendations regarding the
proposed resolution, including any modifications" it may
recommend. Ibid. But upon receipt of the recommendations, or
after forty-five days if none are received, the governing body
"may adopt the resolution, with or without modification." Ibid.
Thus, the Legislature has delegated the responsibility, power
and discretion to delineate an AINreh in conformity with the
statute to the governing body. To the extent the trial court
concluded that the planning board's action was under review, the
court erred. See Kane Prop., LLC v. City of Hoboken, 214 N.J.
199, 226-28 (2013) (concluding, in another context, that where
the governing body makes the final decision on a land use matter
— when the governing body has elected to entertain appeals from
a zoning board's grant of a use variance as authorized by
N.J.S.A. 40:55D-17 — the courts review the decision of the
governing body not the zoning board).
9 A-2775-12T1
substantial evidence, the fact that the question is debatable
does not justify substitution of the judicial judgment for that
of the local legislators." Ibid.; see also Gallenthin Realty
Development, Inc. v. Borough of Paulsboro, 191 N.J. 344, 372
(2007).5
Some determinations about conditions that qualify an area
as one in need of rehabilitation are similarly a matter of
practical judgment and sound discretion. In fact, in Bryant v.
City of Atlantic City, 309 N.J. Super. 596, 614-16 (App. Div.
1998), we rejected a challenge to a governing body's delineation
of an AINreh under an earlier iteration of N.J.S.A. 40A:12A-14.
In Bryant, the City adopted a resolution setting forth the
statutory criteria on which it relied. 309 N.J. at 615-16. We
concluded that "[t]he City sufficiently complied with the
5
Defendants have urged us to consider unpublished opinions of
this court that suggest consideration of the adequacy of the
support in the record is not required. In discussing arbitrary
decision making by a State officer, the Supreme Court noted that
parties "concede[d] that the arbitrary, capricious, or
unreasonable standard applicable in the review of administrative
agency decisions subsumes the need to find sufficient support in
the record to sustain the decision," and the Court went on to
state that the "point is beyond argument." In the Matter of
Proposed Quest Academy Charter School of Montclair Founders
Group, 216 N.J. 370, 386 (2013). To the extent the unpublished
opinions of this court addressing delineations of AINrehs
suggest otherwise, we would not follow them. Bryant v. City of
Atlantic City, 309 N.J. Super. 596, 616 (App. Div. 1998) (noting
that there was "more than sufficient evidence to support the
City's" determination and discussing the evidence).
10 A-2775-12T1
requirements of N.J.S.A. 40A:12A-14, which, by its plain
language, requires only that the City determine by resolution
that the conditions exist before an area can be designated as
one in need of rehabilitation." Id. at 616. And, we noted our
agreement with the trial court's "conclusion that there was more
than sufficient evidence to support the City's conclusion in
this respect." Ibid.
We cannot take the approach adopted in Bryant in this case,
because it is not at all clear that the Council applied the
statutory criteria and because aspects of the criteria upon
which the Council relied are quite specific and leave little
room for discretion. Governing bodies of municipalities are
"creations of the State" and as such are "capable of exercising
only those powers of government granted to them by the
Legislature." Wagner v. Mayor & Mun. Council of City of Newark,
24 N.J. 467, 474 (1957). Thus, substantial evidence supporting
municipal action prevents judicial interference, but only "so
long as the power exists to do the act complained of." Kramer
v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965).
To the extent Resolution No. 1 addresses the basis for the
delineation of the AINreh, it misstates the statutory standard
upon which the Council relied. Resolution No. 1 includes
"WHEREAS" clauses citing the Council's statutory authority to
11 A-2775-12T1
determine whether certain areas are in need of rehabilitation,
identifying the area "it believes" is in need of rehabilitation,
and noting its obligation to refer the question to the Planning
Board and its compliance on June 1, 2011. Following those
recitals Resolution No. 1 states:
WHEREAS, the City Planning Board
received a report from the Planning Board
Engineer and the Planning Board Planner that
within the Property the water and sewer
lines are at least [fifty] years old or are
in need of substantial maintenance; and that
a program of rehabilitation is expected to
prevent further deterioration and to promote
the overall development of the City (the
"Report"); and
WHEREAS, based on the Report, the
Planning Board found that the Property
satisfied the statutory criteria to be
designated as an area in need of
rehabilitation under Section 14 of the
Redevelopment Law, N.J.S.A. 40[A]:12A-14(a);
and
WHEREAS, the Planning Board reviewed
this resolution and recommends its adoption
and the designation of the Property as an
area in need of rehabilitation in accordance
with Section 14 of the Redevelopment Law,
N.J.S.A. 40[A]:12A-14(a).
NOW, THEREFORE, BE IT RESOLVED, by the City
Council of the City of Hoboken as follows:
Section 1. The aforementioned recitals
are incorporated herein as though fully set
forth at length.
Section 2. The City Council hereby
designates the Property as an area in need
of rehabilitation pursuant to Section 14 of
12 A-2775-12T1
the Redevelopment Law, N.J.S.A. 40[A]:12A-
14(a).
Section 3. The City Council hereby
directs that the City Clerk transmit a copy
of this resolution to the Commissioner of
the Department of Community of [sic] Affairs
for review in accordance with the
Redevelopment Law.
Section 4. A copy of this resolution
shall be available for public inspection at
the offices of the City.
Section 5. This resolution shall take
effect immediately.
[(emphasis added).]
The statute, N.J.S.A. 40A:12A-14, as it was written prior
to the adoption of L. 2013, c. 159, set forth the criteria for
delineation of an AINreh related to water and sewer
infrastructure as follows:
a. A delineated area may be determined to
be in need of rehabilitation if the
governing body of the municipality
determines by resolution that there exist in
that area conditions such that . . . (2)
more than half of the housing stock in the
delineated area is at least [fifty] years
old, or a majority of the water and sewer
infrastructure in the delineated area is at
least [fifty] years old and is in need of
repair or substantial maintenance; and (3) a
program of rehabilitation, as defined in
[N.J.S.A. 40A:12A-3], may be expected to
prevent further deterioration and promote
the overall development of the community.
Resolution No. 1 indicates that the Council relied on a
report from the Planning Board Engineer and the Planning Board
13 A-2775-12T1
Planner "that within the Property the water and sewer lines are
at least [fifty] years old or are in need of substantial
maintenance." (emphasis added). But clause (2) provides, "or a
majority of the water and sewer infrastructure in the delineated
area is at least [fifty] years old and is in need of repair or
substantial maintenance." (emphasis added). The statute simply
cannot be read to permit a determination based on either the age
of the majority of the infrastructure or the infrastructure's
being "in need of repair or substantial maintenance." If there
were any doubt about whether the structure of clause (2), with
its reference to the age of housing stock and infrastructure,
permitted a reading of the "and" in clause (2) as an "or," there
no longer is.
After this appeal was fully briefed but before it was
argued, the Legislature amended the LRHL with Chapter 159 of the
Laws of 2013. L. 2013, c. 159 (approved September 6, 2013).
Defendants, as authorized by Rule 2:6-11(d), filed a letter
bringing Chapter 159 to our attention in May 2014, and Neumann
filed a response.6 In land use cases, "[a]n agency or reviewing
court will apply the law in effect at the time of its decision
rather than the law in effect when the issues were initially
6
Neither party requested an opportunity to brief the
relevance of the revisions to Chapter 159.
14 A-2775-12T1
presented," Maragliano v. Land Use Bd. of Tp. of Wantage, 403
N.J. Super. 80, 83 (App. Div. 2008), certif. denied, 197 N.J.
476 (2009); see also Manalapan Realty, L.P. v. Tp. of Manalapan,
140 N.J. 366, 378-79 (1995); Riggs v. Tp. of Long Beach, 101
N.J. 515, 521 (1986). Accordingly, we apply the law as it
stands now.
As amended by section 4 of Chapter 159, the portion of
clause (2) of subsection a. of N.J.S.A. 40A:12A-14 addressing
aged housing stock is addressed in clause (2), but aged water
and sewer infrastructure is addressed separately in clause (6)
as follows: "a majority of the water and sewer infrastructure in
the delineated area is at least [fifty] years old and is in need
of repair or substantial maintenance." (emphasis added). The
amendment eliminates the need to ponder what the Legislature
intended here. The statute is unambiguous and must be applied
in accordance with the plain meaning of its terms, which is the
best indicator of the Legislature's intention. Gallenthin,
supra, 191 N.J. at 359, 365.
There is absolutely nothing in the Resolution indicating
that the Council determined that the area it delineated is in
need of rehabilitation in conformity with N.J.S.A. 40A:12A-
14(a)(6), as it is written now, or with N.J.S.A. 40A:12A-
14(a)(2)-(3), as those provisions were written prior to the
15 A-2775-12T1
adoption of L. 2013, c. 159. In short, Resolution No. 1 must be
vacated, because we cannot conclude the Council "determine[d] by
resolution [that an] enumerated condition exists." Bryant,
supra, 309 N.J. Super. at 615.
We are left with a significant doubt about whether
Resolution No. 1 is arbitrary, capricious and unreasonable
because it rests on the Council's disregard or misunderstanding
of the statutory standard. And for that reason, we vacate
Resolution No. 1.
We further conclude that it is appropriate to vacate
Resolution No. 1 without prejudice to the Council reconsidering
the question in light of the pertinent amendments to the LRHL
the Legislature made by adopting L. 2013, c. 159. We reach that
conclusion because our decision to vacate the Resolution is not
based on the inadequacy of the evidence.
II
In the interest of avoiding unnecessary and costly
proceedings in the event that the Council pursues delineation of
this AINreh, we address Neumann's claims about the meaning of
N.J.S.A. 40A:12A-14. None has sufficient merit to warrant
extended discussion.
The LRHL authorizes municipal governing bodies to undertake
clearance, replanning, development and redevelopment, directly
16 A-2775-12T1
or through a redevelopment agency, housing authority or
redevelopment entity. N.J.S.A. 40A:12A-3, 40A:12A-4, 40A:12A-
11, 40A:12A-21. In adopting the LRHL, the Legislature
determined that in some communities in this State there have
been and still are
conditions of deterioration in housing,
commercial and industrial installations,
public services and facilities and other
physical components and supports of
community life, and improper, or lack of
proper, development which result from forces
which are amenable to correction and
amelioration by concerted effort of
responsible public bodies, and without this
public effort are not likely to be corrected
or ameliorated by private effort.
[N.J.S.A. 40A:12A-2(a).]
The Legislature adopted the LRHL with the intention to
"arrest and reverse" such conditions and to "promote the
advancement of community interests through programs of
redevelopment, rehabilitation and incentives to the expansion
and improvement of commercial, industrial and civic facilities."
N.J.S.A. 40A:12A-2(b)-(d). Moreover, as the Preamble to Chapter
159 of the Laws of 2013, phrased as "WHEREAS" clauses, makes
clear, the Legislature has determined that "[m]unicipalites
should be encouraged to engage in economic development
initiatives by promoting and facilitating such efforts to create
local economic stimulus and job creation through the tools and
17 A-2775-12T1
incentives available under the" LRHL and, to that end, "should
be provided the opportunity to pursue such programs without the
use of eminent domain." L. 2013, c. 159 (reprinted as a note
following N.J.S.A. 40A:12A-5 in the New Jersey Statutes
Annotated).
Contrary to Neumann's argument, the delineation of an
AINreh does not convey authority to exercise eminent domain.7
Upon delineation of an AINred, but not upon delineation of an
AINReh, the area is "deemed to be a 'blighted area' for the
purposes of Article VIII, Section III, paragraph 1" of the State
Constitution. N.J.S.A. 40A:12A-14; compare N.J.S.A. 40A:12A-
6(c) and N.J.S.A. 40A:12A-8 with N.J.S.A. 40A:12A-14 and
N.J.S.A. 40A:12A-15.8
7
Sections 2, 3 and 5 of Chapter 159 of the Laws of 2013,
amending N.J.S.A. 40A:12A-5, -6, -8 and -15, limit the power of
condemnation in AINreds delineated after the effective date of
Chapter 159 to instances in which the governing body has given
notice that redevelopment determination will authorize the
municipality to use the power of eminent domain — that is, a
"Condemnation Redevelopment Area," N.J.S.A. 40A:12A-6 (as
amended by L. 2013, c. 159, § 2).
8
In this respect, N.J.S.A. 40A:12A-15 provides:
With respect to a redevelopment project in
an area in need of rehabilitation, the
municipality or redevelopment entity, upon
the adoption of a redevelopment plan for the
area, may perform any of the actions set
forth in [N.J.S.A. 40A:12A-8], except that
with respect to such a project the
(continued)
18 A-2775-12T1
Moreover, the delineation of an AINreh has no immediate
effect. In order to exercise the powers granted in N.J.S.A.
40A:12A-8, other than the power of eminent domain that is not
granted with respect to an AINreh, the governing body must adopt
a "redevelopment plan" in conformity with N.J.S.A. 40A:12A-7.
See N.J.S.A. 40A:12A-15 (providing that a municipality or
redevelopment entity "may proceed with clearance, replanning,
conservation, development, redevelopment and rehabilitation of
an area in need of rehabilitation" but only "[i]n accordance
with the provisions of a redevelopment plan adopted pursuant to
[N.J.S.A. 40A:12A-7]"). While a "redevelopment plan" may
address an AINred, or an AINreh or both, N.J.S.A. 40A:12A-3,
that does not mean that a redevelopment plan may provide for the
taking or acquisition of property within an AINreh.
(continued)
municipality shall not have the power to
take or acquire private property by
condemnation in furtherance of a
redevelopment plan, unless: a. the area is
within (1) an area determined to be in need
of redevelopment prior to the effective date
of [L. 2013, c. 159], or (2) a Condemnation
Redevelopment Area and the municipality has
complied with the notice requirements under
[N.J.S.A. 40A:12A-6(b)(5)(e)]; or b.
exercise of that power is authorized under
any other law of this State.
(emphasis added; changes adopted in L. 2013,
c. 159, § 5 shown in bold).
19 A-2775-12T1
If there was any reasonable basis for concern about the
threat of a municipality's obtaining authorization to effectuate
an acquisition or taking as a consequence of a governing body's
delineation of AINreh, since the adoption of Chapter 159 there
no longer is. To the extent that Neumann argues otherwise, it
misunderstands the law. Given that the Council has not, and
with this decision may not implement Resolution No. 1, there is
no reason to discuss the Blighted Areas Clause.
Neumann also claims that N.J.S.A. 40A:12A-14, as written
prior to the adoption of L. 2013, c. 159, applied to old water
and sewer infrastructure in need of repair or substantial
maintenance only if at least fifty percent of the housing stock
was also old. Section 4 of Chapter 159 eliminates any ambiguity
that may have allowed Neumann to make that argument. N.J.S.A.
40A:12A-14 now addresses aged housing stock in clause (2), and
aged water and sewer infrastructure separately in clause (6) as
follows: "a majority of the water and sewer infrastructure in
the delineated area is at least [fifty] years old and is in need
of repair or substantial maintenance."
To the extent that it was not clear before, which we think
it was, as amended by Section 4 of Chapter 159 there is no
question now that N.J.S.A. 40A:12A-14 requires a governing body
to determine "that a program of rehabilitation, as defined in
20 A-2775-12T1
[N.J.S.A. 40A:12A-3], may be expected to prevent further
deterioration and promote the overall development of the
community" in every case. By that we mean the finding is
required no matter which one of the six criteria for delineating
an AINreh now listed in N.J.S.A. 40A:12A-14 that a governing
body applies.9
Neumann raises another question about the meaning of
N.J.S.A. 40A:12A-14. The contention is that because the sewer
and water structure at issue lies under the public streets and
rights of way, no other property may be included in this AINreh.
The statutory language provides no support for that
interpretation. Moreover, as the evidence presented to the
9
In pertinent part, as amended by Section 4 of Chapter 159,
N.J.S.A. 40A:12A-14 provides:
a. A delineated area may be determined to
be in need of rehabilitation if the
governing body of the municipality
determines by resolution that a program of
rehabilitation, as defined in [N.J.S.A.
40A:12A-3], may be expected to prevent
further deterioration and promote the
overall development of the community; and
that there exist in that area any of the
following conditions such that . . . (2)
more than half of the housing stock in the
delineated area is at least [fifty] years
old; . . . or (6) a majority of the water
and sewer infrastructure in the delineated
area is at least [fifty] years old and is in
need of repair or substantial maintenance.
21 A-2775-12T1
Board and Council demonstrates, planning development and
encouraging measures such as open space, stormwater collection
and use of pervious pavement on private property are related to
the strain on this City's antiquated, combined sanitary and
stormwater sewer system. As things stand, the sewer system
backs up and leaves untreated sewage in the streets of this
portion of the southwestern section of Hoboken and others.
Despite evidence that the sewer authority has undertaken
projects that have had some minimizing impact on the flooding,
there is also evidence suggesting the problem is far from
solved.
Given our disposition of the case, it would serve no
purpose to discuss Neumann's claim that Resolution No. 1 was
adopted as a pretext for an ulterior motive — a purpose
impermissible under the LRHL - and one the City cannot
ameliorate with a program of rehabilitation because it does not
own the sewer or water infrastructure.
Resolution No. 1 is vacated without prejudice to the
Council's reconsideration of the question under current law.
22 A-2775-12T1