Asbury Park Property Owner Wins Opportunity to Seek Amendment to Redevelopment Plan

by: Anthony F. Della Pelle
25 Aug 2010

The Appellate Division of the New Jersey Superior Court has reversed a trial judge’s decision that property within a redevelopment area in Asbury Park was “unzoned” because it was exempted from eminent domain as part of a redevelopment plan.  The subject property, formerly owned by the Salvation Army, was exempted from eminent domain under the redevelopment plan because its previous use as affordable housing was found to be “inherently beneficial”.  The Salvation Army sold the property to Teicher, a private developer, who filed an application to construct additional housing and retail on the site.  Following an objection by the City’s master redeveloper Asbury Partners, and inaction by the City on the application, Teicher filed a declaratory judgment action seeking a ruling that the City had failed to zone the property and to process Teicher’s application.  The trial judge granted Teicher’s motion for partial summary judgment and ordered the City to adopt a zoning ordinance for the property within 90 days.

 The Appellate Division reversed, finding the property was already zoned pursuant to the City’s Redevelopment Plan under N.J.S.A. 40A:12A-7(c), because a redevelopment plan “when adopted, shall supersede applicable provisions of the development regulations of the municipality or constitute an overlay zoning district within the redevelopment area.”  The Appellate Division relied on its earlier decision in Jersey Urban Renewal, LLC v. City of Asbury Park, 377 N.J. Super. 232 (App. Div.), certif. denied, 185 N.J. 392 (2005), where it stated that “the Plan ‘delineates the standards applicable to all properties in the [Redevelopment Area].  It is, as such, the zoning ordinance for that part of Asbury Park[,]’ and ‘all properties located in the [Redevelopment Area] are governed by the zoning strictures adopted by the Plan.’”

 Under the court’s recent opinion, the property owner may seek an amendment to the plan in accordance with the procedural and substantive requirements of the plan and redeveloper agreement.  Any proposed amendments are subject to a provision of the City’s Redeveloper Agreement which requires Asbury Partner’s written consent.

 A copy of the Appellate Division’s opinion can be found here.

 The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.

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