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In Re Project Authorization Under the New Jersey Register of Historic Places Act

408 N.J. Super. 540, 975 A.2d 941 (App. Div. 2009)

HISTORIC SITES — A public agency does not need to own a historic building before seeking approval from the New Jersey Department of Environmental Protection to demolish the building once the agency owns the building.

A municipality adopted a redevelopment plan to revitalize and redevelop a blighted area. The area included a vacant department store building that was listed in the New Jersey Register of Historic Sites. At about the same time, a buyer contracted to purchase the department store property and use it as a manufacturing and distribution center, offices, and retail space. When the seller wouldn’t close, the buyer sued for specific performance. In the interim, the municipal redevelopment agency and the New Jersey Economic Development Authority signed a project development agreement for the area to create an office complex. The department store building was an impediment to the development of the project. The redevelopment agency decided it was not economically feasible to rehabilitate and repair the building, so it applied to the New Jersey Department of Environmental Protection’s Historic Preservation Office (NJDEP) for authority to acquire and demolish the building. The NJDEP concluded that there was no feasible alternative and it approved the application.

The buyer challenged the NJDEP’s approval of the demolition, claiming that the redevelopment authority did not have standing to apply for approval to demolish the building since it did not own the building. A short time later, the buyer acquired the department store property. The Appellate Division disagreed with the buyer, noting that, in determining whether an individual or entity has standing, courts take a liberal approach. In this case, the redevelopment agency was in charge of redevelopment for the municipality and therefore was mandated to obtain NJDEP approval before demolishing a building. The Court rejected the buyer’s argument that the redevelopment agency had to own the historic building before seeking NJDEP’s approval. It noted that the statute does not require a public entity to acquire title to a historic building beforehand. In fact, the rules require an applicant to apply at the earliest state of planning for any undertaking that could alter or demolish a historic property. In fact, the statute requires an applicant to include, in its application, a complete list of owners of all registered properties that could be affected and requires that the owners be notified of any application that would involve demolishing or altering the building. To the Court, this demonstrated that the statute and rules did not require the agency to own a historic property before applying to NJDEP approval to demolish it. Thus, the Court held the redevelopment agency had standing to apply for permission. The Court also rejected the buyer’s argument that NJDEP acted arbitrarily in approving the project, arguing that the redevelopment agency did not establish any public benefit from the demolition. The Court found that the redevelopment agency demonstrated that the construction of the office park, including the demolition of the historic building, would create jobs, increase municipal tax revenue, and improve public safety, all of which were sufficient.

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