CIVIC JC, INC. VS. THE CITY OF JERSEY CITY (L-3633-15, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4356-15T3

CIVIC JC, INC.,

Plaintiff-Appellant,

v.

THE CITY OF JERSEY CITY;
THE MUNICIPAL COUNCIL OF THE
CITY OF JERSEY CITY; and THE
PLANNING BOARD OF THE CITY OF
JERSEY CITY,

Defendants-Respondents.
___________________________

Argued October 4, 2017 – Decided November 1, 2017

Before Judges Koblitz and Suter.

On appeal from the Superior Court of New
Jersey, Law Division, Hudson County, Docket
No. L-3633-15.

Cynthia A. Hadjiyannis argued the cause for
appellant.

Christopher K. Harriott argued the cause for
respondent Planning Board of the City of
Jersey City (Florio Kenny Raval, LLP,
attorneys; Dennis P. Liloia, on the brief).

Chaunelle Robinson, Assistant Corporation
Counsel, argued the cause for respondents City
of Jersey City and Municipal Council of the
City of Jersey City (Jeremy Farrell,
 Corporation Counsel, attorney; Ms. Robinson,
on the brief).

PER CURIAM

Civic JC, Inc. appeals from the April 28, 2016 order

dismissing its complaint in lieu of prerogative writs seeking the

invalidation of the designation of the City Hall Study Area as a

"non-condemnation area in need of redevelopment," by Jersey City,

its Council and Planning Board under N.J.S.A. 40A:12A-5 of the

Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to

-73. We affirm.

Mary Ann Bucci-Carter, the Senior Planner of the Jersey City

Planning Division, conducted an investigation and presented a

report of her findings supporting the designation during a public

hearing held by the Planning Board. Civic JC did not attend the

hearing. The Planning Board unanimously recommended that the

Municipal Council designate the City Hall Study Area as a non-

condemnation area in need of redevelopment. The trial court,

under its deferential standard of review, held that the City

defendants' designation was not arbitrary, capricious or

unreasonable because the Municipal Council had sufficient evidence

based on Bucci-Carter's report and testimony to find that the City

Hall Study Area met the statutory criteria.

The City Hall Study Area consists of 2.2 acres in downtown

Jersey City's Van Vorst Historic District. It includes City Hall,

2 A-4356-15T3
its adjacent parking lot, a parking lot across Montgomery Street

from City Hall and a privately-owned three-story multifamily

residential unit that fronts on York Street. The back of the York

Street building is contiguous to the Montgomery Street parking

lot.

A municipal governing body may conclude by resolution that a

delineated area is in need of redevelopment if any of the following

conditions is found:

(a) The generality of buildings are
substandard, unsafe, unsanitary, dilapidated,
or obsolescent, or possess any of such
characteristics, or are so lacking in light,
air, or space, as to be conducive to
unwholesome living or working conditions;

. . . .

(d) Areas with buildings or improvements
which, by reason of dilapidation,
obsolescence, overcrowding, faulty
arrangement or design, lack of ventilation,
light and sanitary facilities, excessive land
coverage, deleterious land use or obsolete
layout, or any combination of these or other
factors, are detrimental to the safety,
health, morals, or welfare of the community;

. . . .

(h) The designation of the delineated area is
consistent with smart growth planning
principles adopted pursuant to law or
regulation.

[N.J.S.A. 40A:12A-5.]

3 A-4356-15T3
 Bucci-Carter conducted an investigation of each of the

parcels in the City Hall Study Area and produced the "Report

Concerning the Determination of the City Hall Study Area as a Non-

Condemnation Area in Need of Redevelopment" (Report). She

conducted a physical survey of the property "to determine the

general physical condition for the parcel within the Study Area."

The Report described the standards for evaluating the physical

conditions of each building as good, fair, poor, or dilapidated.

The Report defined "poor" physical condition as having

several major maintenance problems or code violations, including

those affecting electrical, plumbing, heating, ventilating or air

conditioning systems. Significant conditions were those deemed

to be unsafe, unsanitary, obsolete or to be so lacking in light,

air or space as to be conducive to unwholesome human occupation.

The Report defined "dilapidated" physical condition as "in

advanced stages of deterioration." The Report found that all

parcels and structures were in "poor" condition.

The Report described the 1896 City Hall structure as "in need

of major system replacements and upgrades," a condition that "has

been exacerbated due to several natural disasters," including a

1979 fire and a flood caused by Hurricane Sandy in 2012. The

Report states that the building "has begun to show signs of visible

deterioration," with "damaged or missing roof-top and fascia

4 A-4356-15T3
elements." It "sustained hundreds of thousands of dollars of

flood damage to the basement, elevator mechanism and utilities,"

such that "portions of the basement [are] no longer fit for active

use." Additionally, "[l]ower level windows remain boarded," and

"[a] portion of the Montgomery Street foundation near the entry

stair has begun to buckle causing significant cracks in the façade

above." The Report also found cracks were "readily apparent in

the bluestone stairs at the front entrance" and the "blue stone

has begun to spall[1] and crumble with mortar cracking and flaking

away requiring reconstruction and not mere re-pointing." The

Report describes the interior of the building as "lack[ing] a

sprinkler system, a modern handicapped accessible entrance

(although a compliant access was recently reconstructed on

Montgomery Street), up-dated electrical and lighting services, in

addition to [having] general cosmetic damage, examples of which

include peeling paint and broken floor tiles."

The Report concludes its analysis of the City Hall building

by stating that the building needs "extreme renovations" and is:

representative of substandard conditions and
clearly possesses obsolete features and design
that have not been upgraded over the years to
eliminate functional obsolescence. Some areas
of the building are lacking in light, air and

1
Spall is generally defined in the dictionary as to break (ore,
rock, or stone) into fragments. Spall, OxfordDictionaries.com,
https://en.oxforddictionaries.com/definition/spall (last visited
Oct. 16, 2017).
5 A-4356-15T3
 efficient space qualifying as unwholesome. The
building can be classified as meeting criteria
"a" and "d" as an area in need of
redevelopment.

City Hall's adjacent parking lot "contains multiple layers

of uneven and uncurbed asphalt." It has a "substandard, dangerous,

and obsolete parking design . . . with two parallel dead-end aisles

entering Marin Boulevard only 20' from the intersection and 40'

apart creat[ing] a hazardous traffic pattern within the ROW.[2]"

The lot "lacks proper drainage, grading, curbing, landscaping, and

other elements common and necessary for the proper and safe

function of a parking area." The Report classified the adjacent

City Hall parking lot as meeting criterion (d) as an area in need

of redevelopment pursuant to N.J.S.A. 40A:12A-5.

The Montgomery Street parking lot has faded striping, and

lacks adequate "[c]urbing, curb stops, adequate lighting and

buffering landscaping." The lot contains damaged fencing and "in

some areas, only the frame of the fence remains, yielding a rundown

and poorly maintained look." The lot "lacks proper drainage,

grading, and other typical modern improvements intrinsic to a well

developed and well designed parking facility." The Report

concludes that the lot "constitutes a deleterious land use

detrimental to the safety and welfare of the community" and meets

2
Based on the context, we assume ROW refers to "right of way."
6 A-4356-15T3
criteria (d) and (h) as an area in need of redevelopment under

N.J.S.A. 40A:12A-5.

The last parcel surveyed by the Report is the three-story,

five-unit multifamily residential building located on York Street.

The building "has a rear yard, strewn with trash and surrounded

by a chain-link fence that is falling down." It is "of substandard

design with small inefficient units." The building contains

"[l]oose and hanging wires, and wired [sic] entering and exiting

the center, side and front walls." The rear of the building

"requires some repairs to insure [the metal fire escape] is closed

and secure." Both the front and back of the building "contain an

undersized person door non-compliant to current building code or

safety design standards."

The Report concludes that the York Street building "possesses

characteristics of lacking light, air, and space, in a manner

conducive to unwholesome living conditions." The Report

determines that the parcel meets criterion (a) as an area in need

of redevelopment under N.J.S.A. 40A:12A-5.

The last section of the Report entitled "Conclusion and

Recommendation" summarizes the findings and classifies the City

Hall Study Area as a non-condemnation area in need of redevelopment

under criteria (a), (d), and (h) of N.J.S.A. 40A:12A-5. The Report

characterizes the buildings as having "conditions of obsolescence

7 A-4356-15T3
and unsafe conditions" and the parking lots as posing "a

dramatically unsafe condition to the welfare and safety of hundreds

of pedestrians that utilize these sidewalks each day" and a danger

to "the public heath [sic] and safety of parking lot users and

others who commute to or visit the City Hall building or

neighborhood." The Report notes that the City Hall Study Area is

also within the "Smart Growth Areas" map, and therefore qualifies

under criterion (h) of N.J.S.A. 40A:12A-5.

Civic JC argues that the Planning Board and Council improperly

designated the property as obsolete under criterion (a) because

to be "obsolete" means to be "no longer in use" and the City Hall

building, the two parking lots and the residential building are

still in use. Civic JC also argues that the Report did not address

the second part of criterion (a) regarding "characteristics

conducive to unwholesome working conditions," and, under criterion

(d), the Report fails to provide enough evidence that the City

Hall building is "detrimental to the safety, health, welfare or

morals of the community."

Civic JC does not deny that Bucci-Carter is an experienced

city planner and that the conditions in the Report do in fact

exist. No expert witness or other opposition to the non-

condemnation in need of redevelopment, or blighted, designation

was presented during the Planning Board hearing.

8 A-4356-15T3
 The trial court reviewed the Report and the statute and

concluded that the evidence was not "so light or lacking in detail

that the action of the board was arbitrary, capricious, or

unreasonable." We review a trial court's decision using the same

standards as the trial court: giving deference to the actions and

factual findings of local boards, not disturbing such findings

unless they are arbitrary, capricious, or unreasonable. Jacoby

v. Zoning Bd. of Adjustment of Borough of Englewood Cliffs, 442

N.J. Super. 450, 462 (App. Div. 2015).

"The New Jersey Constitution grants municipalities the

authority to revitalize decaying and disintegrating residential,

commercial, and industrial areas." 62-64 Main Street, LLC v.

Mayor and Council of City of Hackensack, 221 N.J. 129, 134 (2015).

The goal of Article VIII, Section 3, Paragraph 1, the Blighted

Areas Clause, is "to give municipalities the means to improve the

quality of life of their residents and to spur business opportunity

and job growth." Ibid. The Local Redevelopment and Housing Law

(LRHL), N.J.S.A. 40A:12A-1 to -73, defines when an area is blighted

and therefore "in need of redevelopment." N.J.S.A. 40A:12A-5.

A municipal governing body has the authority to determine by

resolution whether areas that are within its jurisdiction are

areas in need of redevelopment, but must first, by resolution,

"authorize the planning board to undertake a preliminary

9 A-4356-15T3
investigation to determine whether the proposed area is a

redevelopment area." N.J.S.A. 40A:12A-6(a). The planning board

will make the determination after public notice and a public

hearing, and then recommend to the municipal governing body whether

it should designate the area in need of redevelopment. N.J.S.A.

40A:12A-6(b). After receiving the recommendation, the municipal

governing body may adopt a resolution determining that the area

is in need of redevelopment. N.J.S.A. 40A:12A-6(b)(5)(b).

Planning boards and governing bodies "have an obligation to

rigorously comply with the statutory criteria for determining

whether an area is in need of redevelopment." 62-64 Main Street,

supra, 221 N.J. at 156. In an action in lieu of prerogative writs

challenging a blight determination, the trial court must decide

whether the determination is "supported by substantial evidence."

N.J.S.A. 40A:12A-6(b)(5)(c).

"[A]fter the municipal authorities have rendered a decision

that an area is in need of redevelopment, that decision is

'invested with a presumption of validity.'" 62-64 Main Street,

supra, 221 N.J. at 157 (quoting Levin v. Twp. Comm. of Bridgewater,

57 N.J. 506, 537 (1971)). The LRHL provides that an "'area in

need of redevelopment' designation 'if supported by substantial

evidence . . . shall be binding and conclusive upon all persons

affected by the determination.'" Concerned Citizens of Princeton,

10 A-4356-15T3
Inc. v. Mayor and Council of Borough of Princeton, 370 N.J. Super.

429, 452-53 (App. Div. 2004) (quoting N.J.S.A. 40A:12A-6(b)(5)).

Criteria (a) and (d) list both "obsolescence" and

"dilapidation" as conditions that may individually lead to a

finding that an area is in need of redevelopment, as long as the

condition is either "conducive to unwholesome living or working

conditions," N.J.S.A. 40A:12A-5(a)3, or "detrimental to the

safety, health, morals, or welfare of the community." N.J.S.A.

40A:12A-5(d). Obsolescence is defined in the dictionary as "the

process of becoming obsolete or the condition of being nearly

obsolete." Obsolescence, Merriam-Webster.com,

https://www.merriam-webster.com/dictionary/obsolescence (last

visited Oct. 16, 2017). Obsolete is defined as "no longer in use

or no longer useful." Obsolete, Merriam-Webster.com,

https://www.merriam-webster.com/dictionary/obsolete (last visited

Oct. 16, 2017). Obsolescence does not require that the building

be no longer in use. Therefore, Civic JC's argument that no

building currently in use can logically be obsolescent is

inaccurate. The Report describes numerous specific conditions of

the City Hall building and states that it "clearly possesses

3
A fair reading of this subsection also supports the conclusion
that a finding of "obsolescence" or "dilapidation" alone is
sufficient, even if not "conducive to unwholesome living or working
conditions." We need not resolve this ambiguity in this opinion.
11 A-4356-15T3
obsolete features and design," and that areas of the building lack

"light, air, and efficient space qualifying as unwholesome." The

Report concludes that the City Hall building meets both criteria

(a) and (d).

When reviewing whether a municipality properly exercised its

authority in designating an area in need of redevelopment, courts

should not parse structures within a property. See 62-64 Main

Street, supra, 221 N.J. at 160 (determining that the Court could

not look separately at the subject property's parking lot, as the

lot was an integral part of the property). The Report found that

the two parking lots included in the City Hall Study Area have

features that are unsafe, substandard, and obsolete, and have

potentially harmful conditions "conducive to unwholesome

conditions for users" of the parking lot. The Report determined

that the parking lots qualify under statutory criterion (d).

Bucci-Carter relied on information provided by the building's

owner, after determining that an interior survey was not mandated,

when evaluating the York Street building. After detailing the

building's observed exterior conditions, the Report concluded that

the site met the statutory criteria under (a) as an area in need

of redevelopment. The Planning Board made its recommendation to

the Municipal Council based on findings of both obsolescence and

dilapidation for the City Hall Study Area as a whole.

12 A-4356-15T3
 The Report coupled with Bucci-Carter's unrebutted testimony

provided substantial evidence of the City Hall Study Area's

classification as a non-condemnation area in need of

redevelopment.

Affirmed.

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