App Div Affirms Redevelopment of 615 River Road Edgewater Property
On August 13, 2024, the Appellate Division affirmed denial of a prerogative writ action that challenged the designation of a former Hess oil terminal on the Hudson River as “an area in need of redevelopment.” 2024-8-13 SJ 660 App Div. The decision appears to be the end of years of litigation over the redevelopment of the former Hess property on the banks of the Hudson. At one point, the municipality had threatened to acquire the a portion of the property by eminent domain. Ultimately, the property owner and the municipality entered into a global settlement that would allow for the redevelopment of the that parcel with 1,200 residential units (including affordable housing), and conveyance of the a different portion of the property to the municipality for school and recreation purposes.
The settlement was contingent upon the property being properly designated an “area in need of redevelopment” under the stringent procedures of the Local Redevelopment & Housing Law (“LRHL”), and the post-designation adoption of a redevelopment plan. That process was followed as anticipated by the settlement agreement, and was then challenged by an adjacent property owner who didn’t want to habitate next to a new multi-family residential property (as opposed to a dilapidated former oil terminal). Or maybe it was all about the New York City skyline views (or loss thereof).
Much ink is spilled on the Land Use Law requirements on settlements and allegations of unethical conduct. Breezing over those parts, the opinion is a good read on the procedural and substantive requirements of the LRHL.
“The LRHL governs the process a municipal governing body must follow to designate an area as being in need of redevelopment. See N.J.S.A. 40A:12A-5 to -8; see also Bryant v. City of Atlantic City, 309 N.J. Super. 596, 602-03 (App. Div. 1998) (describing the procedures under the LRHL for designating an area as in need of redevelopment). First, the governing body of a municipality must, by resolution, “authorize the planning board to undertake a preliminary investigation to determine whether the proposed area is a redevelopment area according to the criteria set forth in section 5” of the LRHL. Next, in conducting its investigation, the planning board must give public notice and conduct a public hearing. Ibid. An important part of that notice is to inform the public if a municipality will be using its power of eminent domain in a redevelopment area. N.J.S.A. 40A:12A-6(b)(3)(b) to (c). At the public hearing or hearings, the planning board “shall hear all persons who are interested in or would be affected by a determination that the delineated area is a redevelopment area.” N.J.S.A. 40A:12A-6(b)(4). Moreover, all “objections to such a determination and evidence in support of those objections, given orally or in writing, shall be received and considered and made part of the public record.” Slip op. at 20-21.
The appellate court found that the proceedings adhered to the process, and that there was substantial credible evidence in support of the “in need of redevelopment” designation. The planning board received testimony from three expert planners, and heard the objections and public comments from other interested parties. The trial court and appellate division sustained the determination that the former oil terminal qualified for designation under criteria b and d of Section 5 of the LRHL.
The Planning Board found that the Eastern Parcel qualified as an area in need of redevelopment under subsection (b) because it “was formerly developed with industrial buildings whose use was discontinued prior to being removed for health, safety and public welfare reasons.” The trial court found:
“The bleak condition of the Eastern Parcel, inclusive of its environmental condition due to the petroleum storage and associated industrial use along with the current dilapidated condition of underground piping, containment walls, paved areas, derelict piers and docks (as described in each of the experts’ reports and testimony) more than satisfied the threshold burden of proof and clearly provided substantial evidence to support the Planning Board’s determination that the Eastern Parcel is an area in need of redevelopment pursuant to both N.J.S.A. 40A:12A-5(b) and [(d)] of the LRHL.”
The planning board made similar findings under criteria d, which were sustained at trial and on appeal.
In the end, the appellate court found that “there really was no dispute that the Eastern Parcel contained obsolete improvements. So long as there is substantial evidence in the record, a court may not interfere with or overturn the factual findings of a municipal board.”
The adjacent owner could always petition for Supreme Court review. We’ll see.
