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First Montclair Partner, L.P. v. Herod Redevelopment I, L.L.C.

381 N.J. Super. 298, 885 A.2d 952 (App. Div. 2005)

ZONING; STORIES—When working with redevelopment of blighted areas, a planning board is entitled to adopt a contrary view of what constitutes a “story” within a building than what is expressed in the municipality’s zoning ordinance.

“The Local Redevelopment and Housing Law (LRHL) ... authorizes municipal governing bodies to implement redevelopment plans in order to improve blighted areas. ... The LHRL intended that this goal of fostering community redevelopment to be accomplished by the simplification of procedures and the elimination of the obstacles created by the complex of pre-existing local regulations.” A municipality authorized its planning board to conduct a preliminary investigation “to determine whether certain land within the [municipality] needed to be redeveloped.” The council adopted a resolution “directing the planning board to prepare a redevelopment plan, while retaining the power to adopt or make any necessary changes to the plan.” After completion of the preliminary investigations, the developer then filed a site plan application and request for variances. The planning board approved the application. A neighboring property owner challenged the resolution, but the lower court dismissed its complaint. The neighboring property owner appealed, “chiefly arguing either that the height of the building was not fully appreciated during the planning board hearing or, more importantly, that the proposed structure exceeded the redevelopment plan’s height requirements.” The Appellate Division rejected those contentions. According to the Court, the lower court “correctly determined that the planning board well understood that the proposed structure consisted of one story below grade (to address parking concerns) and seven above.” More importantly, the Court needed to determine “whether the redevelopment [was] governed by or should be interpreted through resort to the local zoning ordinances.” The neighbor property owners argued that the level below ground was a “story” because of a local zoning ordinance. That ordinance stated: “[w]here the maximum height is specified by number of stories and by feet, buildings shall comply with both of these height limits.” Where parking is contained either within or underneath the building, parking levels even if below grade shall be counted as stories for the purposes of determining maximum building height.” Essentially, it argued that “while the redevelopment plan [did] not define what constitutes a story, in this vacuum the plan should be construed by reference to [the local zoning ordinance].” Further, the objecting neighbor argued “that the local zoning ordinance should [have been] given greater weight than the redevelopment plan.” In contrast, the developer argued “that the redevelopment plan [took] precedence.” The Court, however, held that it did not need to “resolve whether the authority of the redevelopment plan overrides the authority of the [municipality’s] local ordinances, but need[ed] to determine whether the redevelopment plan’s mandate that such structures not exceed seven stories was intended to include a story that [was] below grade.” Reviewing what was presented to the Court, the Appellate Division did not “discern from the planning board’s ruling that it did not view the subterranean floor as ‘story.’” It gave deference to that finding. Since it was “satisfied that the planning board’s consideration of the height of the proposed structure comported with a reasonable construction of the redevelopment plan’s terms and regulations – even though the board’s conclusion [was] arguably inconsistent with the manner in which the word ‘story’ [had] been defined elsewhere,” the Court decided not to intercede. It believed that the “planning board was entitled to adopt a contrary view of what constitute[d] a ‘story’ than that expressed in other local regulations.


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