Skip to main content

PC Air Rights, LLC v. Mayor and Council of the City of Hackensack

A-0160-06T1 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; SPOT ZONING — Where an amendment to a municipality’s zoning ordinance applies to the entire municipality, but, at the time of passage, impacts only one known single parcel of land, the revised zoning ordinance still does not constitute reverse-spot zoning.

A developer purchased air and development rights for the construction of a mixed-use building complex on and over land that was owned by a rail line. The building complex was intended to be used for office space and residential apartments. A municipal code enforcement official found deficiencies in the developer’s proposal. Some of the deficiencies were resolved, but the official informed the developer that variance applications needed to submitted. The municipal board of adjustment affirmed the official’s decision on an appeal brought by the developer. Following the board’s decision, the municipality rezoned a large section of the property from one that allowed high density multi-family housing to a zone that only allowed single and two-family housing. The developer then needed to apply for a use variance because his proposal did not conform to the new zoning plan.

The developer brought an action against the municipality, the board, the mayor, and the municipal council on a number of claims. The lower court found that the revised zoning plan constituted reverse spot-zoning, prevented an otherwise permitted use on a particular lot, and ruled that the previous zoning plan was to be restored to the property except for certain remote areas. The lower court also voided the rezoning plan on the grounds that statutory notice requirements were not met, but stayed the ruling to allow the municipality to give notice and to re-enact the rezoning plan. The lower court denied the developer’s civil rights claims, the developer’s claim that the entire rezoning plan contradicted the municipality’s master plan, the developer’s due process claims, and the developer’s claim that the rezoning plan resulted in an inverse condemnation.

On an appeal brought by the developer, the Appellate Division noted that municipal entities such as the board, receive considerable deference due to their knowledge of local conditions. It rejected the developer’s argument that the prior zoning plan should have been restored in its entirety and found that the rezoning plan did not only limit a single parcel of land, but applied to the entire municipality and also implemented the master plan. The Court agreed with the lower court that the developer failed to prove violations under the state civil rights statutes. It also agreed with the lower court that the developer did not establish a violation of due process which required a showing that a governmental action offended human dignity or shocked the conscience. The Court additionally agreed with the lower court’s dismissal of the developer’s inverse condemnation claims on the grounds that the property still had economically beneficial uses following the rezoning plan and that the developer was not the actual owner of the property. It reversed and remanded the lower court finding that the developer was not entitled to an appeal before the board on the question of whether two non-contiguous lots, separated by a street, could have been included in the site plan application according to the municipality’s zoning plan. The Court refused to consider the developer’s claim that the zoning plan did not meet statutory requirements because it had no means of determining whether the re-enactment of the rezoning plan gave proper notice or contained any additional procedural deficiencies. It remanded the matter because complete copies of the rezoning plan and the previous zoning plan were not included in the record. The remainder of the lower court’s findings were affirmed.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •