In re Hunterdon Cnty.
| Decision Date | 24 February 2020 |
| Docket Number | DOCKET NO. A-2658-17T2 |
| Parties | IN THE MATTER OF HUNTERDON COUNTY, BOROUGH OF FLEMINGTON, SALE OF 90-96 MAIN STREET & ADJACENT PARKING LOTS (BLOCK 22, LOTS 7, 8, 9 & 10) APPLICATION FOR PROJECT AUTHORIZATION. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Fasciale, Rothstadt and Moynihan.
On appeal from the New Jersey Department of Environmental Protection.
Erin Elizabeth Simone argued the cause for appellant Friends of Historic Flemington, LLC (Maley Givens, PC, attorneys; Maurice Maley and Erin Elizabeth Simone, on the briefs).
Janine Gail Bauer argued the cause for respondent Flemington Center Urban Renewal, LLC (Szaferman, Lakind, Blumstein & Blader, PC, attorneys; Maraziti Falcon, LLP, attorneys for respondent Borough of Flemington; Janine Gail Bauer, and Robert Beckelman, on the joint brief).
John Paul Kuehne, Deputy Attorney General, argued the cause for respondent Department of Environmental Protection (Gurbir S. Grewal, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; John P Kuehne, on the brief).
Appellant Friends of Historic Flemington, LLC (Friends), describes itself as an "advocacy group comprised of citizens, professionals and business and property owners concerned with historic preservation in the [Borough] of Flemington." In this appeal, Friends challenges a final decision of the New Jersey Department of Environmental Protection (DEP) approving the Borough of Flemington's sale of a historic building to a private developer as part of a municipal redevelopment plan under the New Jersey Register of Historic Places Act (HPA), N.J.S.A. 13:1B-15.128 to -15.132. On appeal, Friends argues that the DEP's action was procedurally defective and not supported by sufficient evidence. It also argues that the DEP should have exercised jurisdiction over the redeveloper's entire project, which involved privately-owned properties. We affirm, as we conclude Friends has failed to meet its burden to prove the DEP's decision was arbitrary, capricious or unreasonable, or otherwise defective.
Friends' challenge arose from Flemington's May 23, 2017 application to the DEP's Historic Preservation Office (HPO) to approve its sale of publicly owned historic property. The DEP established the HPO, see N.J.A.C. 7:4-1.1, under the New Jersey Register of Historic Places Rules (HPRs), N.J.A.C. 7:4-1.1 to -8.9, to administer aspects of the HPA. Flemington's application sought approval to sell a historic bank building (Bank) to a private developer, Flemington Center Urban Renewal, LLC (Flemington Center), as part of Flemington's agreement with Flemington Center for the redevelopment of Flemington's downtown area. Flemington Center cooperated with the Borough in the preparation of the application.
Flemington owns the Bank, which is part of a three-story brick and stone structure located in Flemington's Historic District (District). Built in 1870, the Bank is listed in the State and National Registers of Historic Places. The Bank's façade was modified in the 1920s to include a stone façade addition to the first floor.
The north and front of the building contains the Bank and is categorized under Flemington's Master Plan as a "contributing property" to the District. The portions located to the south and rear, are used for police offices and arecategorized as "non-contributing" to the Historic District. The building is surrounded by several parking lots, also owned by Flemington, for public use.
The District was registered with the State and National Registers of Historic Places in 1980 and encompasses the downtown commercial area and surrounding residences. Its buildings' architecture is considered its main historic asset. While the District covers approximately sixty percent of Flemington's area, it has been in economic decline for decades and has been marred by failed development projects and vacant buildings.
Flemington's attempt to redevelop the District began in 2010 with the Union Hotel, a privately-owned, dilapidated historic building, that has been vacant since 2008. After determining that the building qualified as needing redevelopment under state law, Flemington adopted a resolution designating the Union Hotel as an area in need of redevelopment and adopted the Union Hotel Redevelopment Plan (2010 Redevelopment Plan). In 2012, Flemington issued a request for development proposals for the Union Hotel property. Although two developers were designated to implement the Union Hotel redevelopment project, financial concerns prevented the anticipated development.
In 2013, Flemington began evaluating a larger redevelopment plan for the area, and as part of that plan, it directed its Planning Board (Board) to conduct a study of buildings south of the Union Hotel, including the Bank and surrounding parking lots. After considering an "Area in Need of Redevelopment Study," prepared on the Board's behalf, the Board adopted the study's findings on December 16, 2013, following a public hearing.
The study found that the expanded area qualified as an area in need of redevelopment. The Bank was recognized as "significant" to Flemington's Historic District, but the study concluded that the building was "substandard, unsafe, unsanitary, dilapidated and obsolescent." It "[had] been unoccupied for some time," and required "substantial upgrades to plumbing, electrical, fire safety and adequate means of ingress and egress to meet current building codes."
In pursuit of the expanded plan recommended by the study, in 2014, Flemington and the Board considered a report prepared at the request of the Flemington Business Improvement District, a non-profit district management corporation that manages the Flemington Special Improvement District, which includes the Main Street area. The report, entitled "Downtown Strategic Plan Report Flemington, New Jersey" (2014 Strategic Plan), recommended redevelopment of a larger portion of downtown Flemington, and described theMain Street area, including the Union Hotel and the Bank, as the "heart and soul" of the plan. It recommended a mixed-use hospitality, retail, and residential development "at a density that will maintain the character of Main Street," create a residential character for surrounding streets, and "locat[e] parking resources out of view." It called for the construction of 141 residential units and 19,500 square feet of commercial space in the Main Street area.
Thereafter, the firm that authored the 2010 Redevelopment Plan prepared an "Amendment to Redevelopment Plan for the Union Hotel: Expanded Union Hotel Redevelopment Area." (2014 Redevelopment Plan). The purpose of the amended plan was to encourage redevelopment of the expanded area that "[i]s compatible with and enhances the historic character of the Union Hotel and Historic District," "[a]ttracts new visitors and residents" to Flemington, "[s]upports the existing businesses and other uses," and "is cohesive with adjacent residential uses."
In August 2015, Flemington adopted a "Reexamination of the Master Plan" report (2015 Master Plan). It maintained the goals and objectives set forth in the previously adopted 2010 Master Plan, but updated it to add elements related to the economic revitalization of Flemington's downtown area,recommend concentrated retail, service, and entertainment uses, and identify the "[e]xpanded Union Hotel" area as in need of redevelopment.
In February 2016, Flemington adopted a resolution designating John J. Cust, Jr., the sole member of Flemington Center, as the redeveloper for the downtown area. On March 13, 2017, Flemington adopted a new resolution designating Flemington Center as the "redeveloper for the Redevelopment Area." It then entered into a redevelopment agreement with Flemington Center.
The agreement included the Bank, the Union Hotel and other properties not owned by Flemington as part of the redevelopment area,1 and it required the project to conform with an attached "Concept Plan" and the 2014 Redevelopment Plan, with the latter controlling should any conflicts arise. The project's purpose was to revitalize downtown Flemington to "compete within the marketplace to attract people who will want to live, work and visit Flemington" by "creat[ing] a vibrant and [d]ynamic [m]ixed-[u]se, [l]ifestyle [c]ommunitythat will be attractive to [the] local [c]ommunity, while promoting [t]ourism and [h]igher [e]ducation."
Flemington Center's proposal was larger in scope than the 2014 Strategic Plan recommendations. The project called for the construction of approximately 222 residential units, a 100-room hotel, a 45,000 square foot educational and medical office building, 32,250 square feet of retail space, 4,800 square feet of amenities, and 820 parking spaces. Notably, as originally stated, the proposal did not retain the façades of the Bank or Union Hotel.
Pursuant to the agreement, Flemington Center was required to acquire title from Flemington to all the properties within the redevelopment area using private funding. That acquisition prompted Flemington's May 23, 2017 application to the DEP's HPO.
According to Flemington's application, the redevelopment would preserve the historic façade of the Bank and remodel its interior to include 4,200 square feet of retail space and eight residential units. It also called for the removal of the stone first floor façade that was added in the early twentieth century, the restoration of the building's brick exterior, and the replacement of the building's windows. Additionally, the project contemplated the complete removal of the...
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