Opinion
Docket No. 006832-2011
06-13-2012
Red Bull Arena, Inc., v. Town of Harrison, The Harrison Redevelopment Agency, and The Hudson County Improvement Authority
Thomas Denitzio, Esq. Greenbaum, Rowe, Smith & Davis Metro Corporate Campus One Norman A. Doyle, Esq. 713A Kearny Avenue Kearny, New Jersey 07032
JUDGE
Thomas Denitzio, Esq.
Greenbaum, Rowe, Smith & Davis
Metro Corporate Campus One
Norman A. Doyle, Esq.
713A Kearny Avenue
Kearny, New Jersey 07032
Dear Counsel:
The parties have brought cross-motions for summary judgment on count one of plaintiff's complaint filed for the 2011 tax year where it is alleged that the property at issue is exempt. The within letter opinion amplifies the decision rendered by the court on May 11, 2012 when the parties presented oral argument on the motions. The court granted defendants' motion for summary judgment and denied plaintiff's cross-motion.
Count two alleges discrimination in the assessment.
The subject property is known as Block 174, Lot 1.02 in Harrison ("subject property") and uses the alternate addresses of 1000 Rodgers Boulevard South, 600 Essex Street and 600 Cape May Street. It is comprised of 12.34 acres of land and a stadium improvement constructed in 2010. The subject property was condemned by the Harrison Redevelopment Agency ("HRA" or "Agency") in 2006 in furtherance of a redevelopment plan implemented by the town of Harrison. At the time of condemnation the subject property consisted of land with then existing improvements. Red Bull Arena, Inc. ("plaintiff" or "RBA") reached an agreement with the town to redevelop the property as a soccer and entertainment stadium. Toward that end plaintiff simultaneously entered into a lease of the land and a redevelopment agreement with HRA to build a stadium. Plaintiff also signed an agreement for the Red Bulls professional soccer team to play home games at the stadium once completed. In 2010, plaintiff completed construction of the stadium and it was opened as the home of the Red Bulls. An assessment was placed on the land and on the improvement. HRA retains ownership of the land in fee simple and plaintiff is the owner of the improvement per the terms of the long-term leases.
Pursuant to documents provided to the court by plaintiff, defendant Hudson County Improvement Authority ("HCIA" or "Authority") was included in the redevelopment initiative to provide financial assistance to the town for the land purchase. The HCIA is an autonomous public agency created by the Board of Chosen Freeholders of Hudson County in accordance with the County Improvement Authorities Law, N.J.S.A. 40:37A-44 to 73. Further, the property was leased by the HRA to the HCIA. The plaintiff and the two public entities executed a lease and sublease in May 2006 which entitles plaintiff to possession of the property. The HCIA is the lessee under the lease and the lessor under the sublease, and it also constructed a parking facility on other land contained in the redevelopment area to supply commuter parking to users of local rail lines and leases spaces to the stadium.
Plaintiff urges the court to find that the land and stadium are exempt in reliance on a provision contained in the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to 73 ("LRHL"), specifically N.J.S.A. 40A:12A-36. That section declares "all projects and all other properties of a redevelopment agency . . . shall be exempt. . . " N.J.S.A. 40A:12A-36. Plaintiff also contends that the property is exempt under the County Improvement Authorities law, N.J.S.A. 40:37A-44 to 135 ("Authorities Law"), specifically N.J.S.A. 40:37A-85, which contains similar language, and states "all properties of an authority . . . and all public facilities . . . shall be exempt from all taxes. . ."
Plaintiff filed a complaint for tax year 2010 by which it sought the same relief as it does in this 2011 tax appeal. In the within motion the parties rely on the certification, documents and brief filed for the 2010 summary judgment motion. In further support of the present motion plaintiff filed an additional abbreviated statement of facts and letter brief, however this motion raises no new material issues of fact or of law. Defendant did not file a response to plaintiff's statement of facts therefore the facts set forth by plaintiff are deemed to be admitted for the purposes of the motion, pursuant to R. 4:46-2(b).
This court denied defendant's summary judgment motion and granted plaintiff's cross-motion in an oral opinion presented from the bench to the parties on January 6, 2012. At oral argument on the 2010 motions defendant had conceded that the land was exempt and an Order for partial summary judgment was entered by the court. After consideration of the motion this court found that the land was owned by the redevelopment agency but that the stadium use did not constitute a public purpose. The court vacated the Order for partial summary judgment regarding the land, denied plaintiff's motion for summary judgment and granted defendant's cross-motion for summary judgment.
As with the motion filed on the 2010 appeal, neither of the remaining two defendants, The Harrison Redevelopment Agency or the Hudson County Improvement Authority, submitted papers in response to these motions and did not otherwise participate. The court agrees with the parties that there are no material facts in dispute and that the issue relies on application of the relevant statutes, thereby the matter may be determined as a matter of law. R. 4:46-2. Application of the undisputed facts, to the law, results in a determination by this court that neither the land nor the improvement is exempt.
Findings of Fact
The subject property is located in the town of Harrison, in Hudson County. The town, situated on the Passaic River, is comprised of 1.2 square miles. In September 1997, by resolution, the Mayor and Council determined an area of the town to be in need of redevelopment, pursuant to the LRHL. The following year the town released the "Water Redevelopment Plan" which sought the most appropriate ways to revitalize the southern waterfront industrialized area of the town. Set forth as the general goals, the plan "attempts to improve the Town's tax base" and "create locations for new job opportunities." Under the section entitled "Incentives and Project Funding," the plan lists "Payments in Lieu of Taxes (PILOTS)" as "[i]ncentives for developers [which] can be considered by the municipality," and names the HCIA as an entity to provide technical or financial assistance with the plan.
The town adopted the Plan in accordance with N.J.S.A. 40A:12A-7. It is undisputed that all statutory requirements for designation of the redevelopment Area were met.
The redevelopment area is made up of 250 acres of land, which represents 32% of the town. Once populated largely by industrial uses, the area is now mostly comprised of brownfields. It lies adjacent to and to the south of the New Jersey Transit/Amtrak and PATH railroad lines. The plan divides the area into nine districts with each district zoned for particular development; among them, a waterfront walkway and waterfront park, parking for commuters and shoppers in the area of the Harrison PATH station, and a stadium/office zone with accessory uses. The stadium/office zone proposes a "land use allocation" zone of up to 30.8 acres for such use. The plan specifies the purpose of the stadium/office zone for "implementation" of a professional soccer stadium and accessory uses or an office complex and accessory uses.
As set forth in the plan, part of the "vision" is to "attract a professional sports stadium to the town" which would "generate the demand for amenities such as restaurants, cafes" and similar meeting places in the area and "incorporate accessory dining, gift shops, and other tourist attractions to the site." As anticipated by the terms of the document, the redevelopment agency was created to assist the town with implementation of the plan. After its creation, the HRA entered into a Redevelopment Agreement with Advance at Harrison, LLC, ("AAH"), dated February 2001 to develop the area.
In 2003, the redevelopment plan was updated with minor alterations. It renamed the stadium/office zone as a "stadium district" to create adequate area for the development of a multi-use sports and entertainment stadium with accessory uses. Between 2000 and 2006, the town and the HRA expressed interest in bringing a professional soccer team, the MetroStars, to Harrison. Discussions conducted among the three parties included the development and financing of a soccer-specific stadium in Harrison for the Metro Stars.
The New York Red Bulls were formerly known as the MetroStars until approximately March of 2006. The Red Bulls team is owned by Major League Soccer, LLC, a Delaware limited liability company, ("MLS"). Anschutz N.Y. Soccer, Inc., a Colorado Corporation, has the right to operate the team.
In 2005, the town authorized the issuance of general obligation bonds, Land Acquisition Bonds, in the amount of $40 million to acquire and prepare the subject property, including demolition of existing improvements, for construction of a stadium. The HCIA issued Series A bonds, County-Guaranteed Stadium Land Acquisition Bonds, to finance the acquisition costs of the land by the HRA. Series B bonds, "Stadium Land Construction Lease Revenue Bonds," were authorized by the HCIA. Series C bonds, County-Guaranteed Parking Revenue Bonds, were issued by the HCIA in an amount not to exceed $45 million, to acquire land, and to design and build a parking structure. In a change of direction, in 2006 plaintiff agreed to directly finance construction of the stadium, therefore the Series B bonds were never issued.
Harrison Bond Ordinance No. 1133 sets forth its purpose: "the Town desires to aid and assist the [HRA] as permitted under the Redevelopment Law by authorizing and issuing bonds for purposes of lending the proceeds thereof to the [HRA] for the purpose of acquiring interests in real and personal property within the Redevelopment Area and planning, clearing, grading and remediating any parcel of real property so acquired." The Ordinance also notes the purpose is as described in N.J.S.A. 40A:2-7(d), which is "in the public interest and is for the health, welfare, convenience or betterment of the inhabitants of the Town."
The HCIA issued Series A bonds and purchased the town's G.O. bonds to finance acquisition of the land by the Agency. The County of Hudson guaranteed the principal and interest on the Bonds.
It had been anticipated that Red Bull's parent company, Anschutz Entertainment Group ("AEG"), would pay the debt service on the Series B bonds.
The redevelopment agency condemned the subject property with existing improvements as the site of the stadium and took title to the land which it presently holds. The parties executed a "Ground and Stadium Lease" ("Lease") and "Ground and Stadium Sublease" ("Sublease") both dated May 16, 2006. Under the terms of the Lease, the Agency leases the "Property" to the Authority. The Authority in turn subleases the "Property" to plaintiff per the terms of the Sublease of the same date. The Lease defines the "Property" as approximately 12.34 acres which is described in a metes and bounds survey of block 138.08, lot 1, the subject land. The Lease states that plaintiff "shall assume and perform all obligations of the Authority [as Tenant] under this Lease until the date that final payment of the Series A Bonds is made" when "all interest of the Authority as Tenant under this Lease shall terminate" and the Lease then becomes a direct lease between the HRA and plaintiff. The Authority is relieved of all obligations that may accrue under the Lease subsequent to the Initial Term. Under the Sublease, the parties are subject to all terms and conditions of the Lease "as if [plaintiff] were the tenant and [the authority] were the landlord."
The condemned property was known as the "Spiegel Property." Listed on a Declaration of Taking signed by the Executive Director of the HRA, filed with the Superior Court on August 29, 2006, are thirteen names of individuals and/or businesses and property addresses. A municipality that has designated a redevelopment area may provide for tax abatement within that area by ordinance. N.J.S.A. 40A:12A-66. The parties did not provide a copy of such an Ordinance to the court but apparently one was enacted by Harrison since other properties developed within the Harrison waterfront redevelopment area include a waterfront hotel and a condominium project, both of which are the subject of tax abatement agreements according documents attached to the motion papers.
Under the terms of the Sublease, plaintiff is permitted to use the property and improvements for any use set forth in the Lease, and "shall expressly have" all rights granted to HCIA with respect to naming rights, advertising and sponsorships, and all other rights set forth in the pertinent section of the Lease.
The Sublease notes that HRA is the owner of fee simple title to the property and that and RBA owns the improvement.
The Lease includes an Initial Term of thirty years with an option to extend for four additional successive periods of five years each. The lease "Commencement Date" is the earlier of (i) the date that a Certificate of Completion is issued for the Project or (ii) the date tenant commences operations in the Stadium. Thus, the term includes an operational period of thirty years excluding the period for construction of the Project. At the expiration of the lease term the landlord gains title to the improvements. If not renewed, the rights to the stadium revert to the Agency at the end of the Initial Term. The term of the Sublease runs in conjunction with the term of the Lease, and continues until expiration of the Lease.
The Lease refers to the Redeveloper Agreement for the definition of Project, which is as follows "the Project to be undertaken by the Redeveloper in accordance with this Agreement, [ ] shall consist of an approximately 20,000 seat sports and entertainment stadium as generally described in Exhibit A." The Lease requires HRA to demolish and remove the prior existing structures on subject property and for RBA to construct and operate the stadium in compliance with the Redeveloper Agreement, entitled "Redeveloper Agreement for a Portion of the Waterfront Development [Stadium Site] in the Town of Harrison."
Where the term landlord is used it refers to both HRA and HCIA since they fit the designation under the Lease or Sublease. "Tenant" refers to HCIA and plaintiff, since they fit the designation under the Lease or Sublease, but plaintiff is the ultimate operator and user of the stadium.
Red Bull Stadium Inc., LLC, ("RBS") was organized for the purpose of developing and operating a stadium on the property. Plaintiff Red Bull Arena, Inc., ("RBA") is a Delaware corporation and the successor corporation to RBS, Anschutz N.Y. Soccer, Inc., and Anschutz NJ Soccer Stadium, Inc., and constructed the stadium. Plaintiff entered into a redeveloper agreement with the town dated May 16, 2006, and AHH relinquished its rights as redeveloper to build the stadium. The Lease incorporates the terms of the agreement with plaintiff and states that AAH, the redeveloper, agrees to release its rights to plaintiff to redevelop the Property and that as redeveloper plaintiff will construct a multi-purpose open air sports and entertainment stadium, parking lots and on-site improvements. The Redeveloper Agreement describes the Property as 12.3 acres of the Spiegel property, a tract of land containing approximately 14.3 total acres located in the redevelopment area, block 174, lot 1A.
Under the leases, tenant (RBA) is responsible to pay $150,000 annually in fixed rent net to landlord. Tenant has the exclusive right to manage, operate and control the Premises, including the exclusive right to: schedule all events; negotiate and sell all naming rights and broadcasting rights; negotiate and execute all sponsorship, signage, rental and vendor agreements; conduct all advertising and promotions; make all decisions regarding stadium operations, admissions, ticketing, merchandising, concessions (including the right to set ticket prices for all events in the stadium at its sole discretion); and implement all construction and alterations of improvements. With the exception of rent, landlord is not entitled to any income generated by operation of the stadium. As tenant, RBA is entitled to all revenues from the stadium, including from such sources as the sale of naming rights for the stadium.
"Events" is broadly defined to include uses related to team activities, and exhibition, presentation and broadcasting of other amateur and professional sporting team events, live entertainments, fairs, fireworks displays, trade shows, motor sports, and other events not related to soccer. Plaintiff must provide landlord with notice of the intended event prior to its occurrence and may proceed with any event unless that particular event has a "documented pattern of murder, riot, rape or substantial property damage" at the venue or surrounding neighborhood, in such case the landlord can bar the event from taking place only through obtaining an injunction.
The Lease describes certain benefits to Major League Soccer as follows:
Major League Soccer ("MLS") is the owner of the Major League Soccer team operating in the general vicinity of the New York City-New Jersey-Southern Connecticut area (the "Market Area") under the name of the Red Bulls (the "Team"). Pursuant to an agreement with MLS, Anshutz N.Y. Soccer, Inc., a Colorado corporation ("Team Operator") has the right to operate the Team (the "Team Operating Agreement"). Pursuant to discussions between the Landlord, the Town, AAH, RBS and the Team, the above parties have agreed that AAH release its rights to redevelop approximately 12.34 acres of the AAH Master Redevelopment Area to RBS, said portion being more particularly described in Exhibit A attached hereto and incorporated by reference for all purposes (the "Property"), and that RBS will construct thereon a multi-purpose open air sports and entertainment stadium (the "Stadium") substantially in accordance with plans and specifications approved by the Agency [ ]. Without limitation, the Stadium will include a playing field and related amenities suitable for conducting professional soccer matches by the Team as well as other sporting and cultural events, including concerts and related activities, office space for the Team, related commercial development and related on-site infrastructure including on-site surface parking (the "Parking Lots") and on-site necessary street, sewer and utility improvement, if any (the "Infrastructure"). RBS' construction of the Stadium, Parking Lots and Infrastructure on the Property shall hereinafter be referred to as the "Project", and the Property, Stadium, Parking Lots and Infrastructure shall hereinafter be referred to as the "Premises."
Plaintiff entered into a Non-Relocation Agreement also dated May 16, 2006. Under the Agreement the owner of the Red Bulls soccer team which is MLS, the Team Operator, which is Anshutz N.Y. Soccer Inc., the HRA and the Town agreed that the team will play its soccer home games at the stadium for a period of at least seven years. The public entities, Harrison, HRA and HCIA, also entered into an Interlocal Development Agreement dated June 1, 2006.
In terms of stadium use, as indicated, the lease does not limit related sports and entertainment use but restricts tenant from using the stadium for certain unrelated types of activities, specifically wholesale sales, the use of the grounds for non-event public parking, adult entertainment, mortuary functions, warehouse purposes, as a heliport or from any activity that creates a public nuisance. Tenant is required to comply with environmental laws and noise ordinances.
Where there is no difference in the terms used in the Lease and the Sublease, the court will refer only to the "lease."
The lease does not prohibit other uses from taking place on the premises and specifically states that "[n]o portion of the premises shall be used for adult entertainment, animal services, mortuaries, heliports (except as provided in clause (vi) above), oil refineries, mini-storage warehouses, department stores, supermarkets or "big box" retail centers."
Landlord, HRA, has the right to use the stadium for a civic event four times a year, provided the dates do not conflict with a soccer home game or other event scheduled by tenant and can charge an entrance fee only with the prior written consent of tenant. The lease states, "Landlord agrees that it will not be unreasonable for Tenant to withhold its consent to a Ticketed Civic Event if Tenant reasonably determines that the request would unreasonably interfere, conflict with or otherwise impair any business opportunities of Tenant or would threaten to impair Tenant's revenue stream from the Premises." ("Premises" is defined in the lease as the Property, Stadium, Parking Lots and Infrastructure.) Tenant is entitled to 50% of the net revenues from any civic event held at the stadium.
The only other restrictions in the lease state: "Tenant may not enter into agreements granting licenses, easements or access rights over the Premises if the same would be binding on Landlord's reversionary interest in the Property or obtain zoning changes or conditional use permits for any uses not provided for hereunder, in each instance without Landlord's prior written consent, which shall not be withheld or delayed unreasonably, and subject to the provisions of Section 6." Further, as to assignment and subletting, the lease states, "Except as otherwise expressly provided in this Section 15, Tenant may not transfer, sell convey or assign all or any portion of its interest in this Lease or in any portion thereof without the prior written consent of Landlord, which consent may not be unreasonably withheld."
Section 6 is "Compliance with Laws."
The payment of real property taxes was addressed in both the leases and in the Redevelopment Agreement and the language is nearly the same in each document. The Lease includes a clause entitled, "Real Property Taxes" which reads:
It is the understanding of the Parties that the Property and any Leasehold Interest of Tenant in the Property or Premises by or pursuant to this Lease or the Redeveloper Agreement shall not be subject to real property taxation. In the event that such tax exempt status is contested, the Parties agree to jointly defend such tax exempt status. If the Property or the Leasehold Interest of Tenant is found to be subject to property taxation, Tenant shall pay all of such taxes, subject to Section 2.7.
Section 2.7 states, "[ ] in the event that RBS, either as a subtenant under the RBS Sublease or as Successor Tenant under this Lease, is required to pay real property taxes assessed upon the Premises or its Leasehold Interest in the Premises under the RBS Sublease or this Lease, the amount of such Additional Rent shall be credited against Fixed Rent coming due under the RBS Sublease or this Lease, as applicable, and any such credit that is not fully utilized during any year shall be carried forward from year to year."
The Red Bulls stadium opened in 2010 as the home field of the professional soccer team, and for other commercial events. The team played twenty-four home games at the stadium in 2010 and eighteen in 2011. It was also the site of free viewing parties for the World Cup, and Big East Championships games; and three international rugby games and three international soccer matches were played there. The stadium was also the site of a concert. Plaintiff contends that it is in discussions to use the stadium for high school soccer and football games as well as for college football and lacrosse
CONCLUSIONS OF LAW
Burden of proof
In considering plaintiff's claim for exemption, the court relies on the well-settled law that "[s]tatutes granting exemption from taxation represent a departure and consequently they are most strongly construed against those claiming exemption." Princeton Univ. Press v. Borough of Princeton, 35 N.J. 209, 214 (1961). "Exemptions from local property taxation are strictly construed, and the burden of proof is on the taxpayer claiming tax exemption to establish the asserted right." Egg Harbor v. Atlantic County, 10 N.J. Tax 7, 17 (Tax 1998) (citing Jamouneau v. Division of Tax Appeals, 2 N.J. 325 (1949)).
The law states as well that the requisite of use for public purpose is accorded a liberal construction when tax exemption is sought by a government body. City of Newark v. Essex County Bd. of Taxation, 103 N.J. Super. 41 (Law Div. 1968), modified on other grounds, 54 N.J. 171, cert. denied, 396 U.S. 987. Plaintiff argues that the relevant statute involves a tax immunity "respecting a government project or property" and should be liberally construed, Township of Holmdel v. N.J. Highway Auth., 190 N.J. 74, 88 (2007), however, that argument is misplaced. This matter does not involve a government entity seeking tax exemption. Rather, plaintiff, a private entity, seeks the benefit of the exemption available to a public entity under the relevant statute(s), and asks that the court find that the stadium constructed and privately operated by RBA in accordance with the redevelopment plan should be designated as property of the public entities being put to a public use so that RBA can enjoy the benefit of the exemption. Therefore, plaintiff shoulders the burden of proof to establish the right to the benefit. Further, this is not a case where a government body claims that the improvement is being used for a public purpose which would warrant a liberal construction.
The argument applies equally to both statutory exemptions and to both public entities.
Notably, "[t]he taxing power lies at the heart of government. Without taxes government could not function. Any impairment of the taxing power affects the lifeblood of government. Accordingly claims for tax exemption have to stand scrutiny to show that they serve a public purpose [citations omitted]." N.J. Turnpike Auth. v. Township of Washington, 16 N.J. 38, 44 (1954). Plaintiff's claim for statutory exemption under the N.J.S.A. 40A:12A-36 of the LRHL.
Property of a redevelopment agency or housing authority is declared to be exempt under N.J.S.A. 40A:12A-36 ("section 36") which states, in relevant part:
All projects and all other properties of a redevelopment agency or housing authority are hereby declared to be public property of a political subdivision of the State and devoted to an essential public and governmental function and purpose and shall be exempt from all taxes and special assessments of the State or any subdivision thereof.
Plaintiff argues that the legislature has spoken in clear terms and broadly grants an exemption to "all projects and all other properties of a redevelopment agency" which the statute states "are hereby declared to be public property," and that all projects and other properties of the redevelopment agency are deemed by statute to be "devoted to an essential public purpose and governmental function and purpose." According to plaintiff, the HRA would not be allowed to take action on the project if it did not further a public use, therefore, any project of the HRA is inherently for the public use, and furthers the purpose of the statute. As such, the declaration contained in the LRHL has made unnecessary any fact-intensive inquiry regarding the subject property's use and, further, the stadium was built on land conceded to be exempt as owned by the HRA, therefore it must be deemed to fill a public purpose. It argues that the town's bond ordinance is also evidence of the stadium's public purpose, and the town's issuance of General Obligation bonds for the purchase and clearing of the land "are declared to be issued by a political subdivision of this State and for an essential public and governmental purpose."
Likewise, plaintiff relies on a provision of the LRHL addressed to the contents of a redevelopment plan, which reads as follows:
The redevelopment plan shall include an outline for the planning, development, redevelopment, or rehabilitation of the project area sufficient to indicate:
(1) Its relationship to definite local objectives as to appropriate land uses, density of population, and improved traffic and public transportation, public utilities, recreational and community facilities and other public improvements.
[N.J.S.A. 40A:12A-7] (emphasis added)
Plaintiff concludes that the stadium provides "recreational activities for the residents" of the town, therefore its use of the stadium fulfills the statutory purposes of the LRHL and the property should be declared exempt since it is a "recreational facility," as the term is used in N.J.S.A. 40A:12A-7. This court disagrees.
Plaintiff repeats these same contentions in support of its claim for exemption in the context of the Authorities Law, infra.
The act of redevelopment is a mechanism which derives from a planning and zoning perspective to correct the effect that blight has on the health of a town. Forbes v. Bd. of Trs. of S. Orange Vill., 312 N.J. Super. 519 (App. Div.), certif.. denied, 156 N.J. 411 (1998). See also Levin v. Township Comm. of Bridgewater, 57 N.J. 506, 537-538, appeal dismissed, 404 U.S. 803 (1971). Notably, the municipal planning board must approve of the plan, is empowered to conduct an investigation, public hearing, and make recommendations concerning the substance of the plan. N.J.S.A. 40A:12A-4.
Community redevelopment is a modern facet of municipal government. Soundly planned redevelopment can make the difference between continued stagnation and decline and a resurgence of healthy growth. It provides the means of removing the decadent effect of slums and blight on neighboring property values, of opening up new areas for residence and industry. In recent years, recognition has grown that governing bodies must either plan for the development or redevelopment of urban areas or permit them to become more congested, deteriorated, obsolescent, unhealthy, stagnant, inefficient and costly.
[Forbes, supra, 312 N.J. Super. at 529]
In compiling a redevelopment plan the town must consider the "relationship to definite local objectives as to appropriate land uses, density of population, and improved traffic and public transportation, public utilities, recreational and community facilities and other public improvements." N.J.S.A. 40A:12A-7. When Harrison approved the redevelopment plan it affected the local zoning requirements. Jersey Urban Renewal, LLC v. City of Asbury Park, 377 N.J. Super. 232, 235 (App. Div. 2005) (a redevelopment plan constitutes "an overlay zoning district within the redevelopment area") (quoting Hirth v. City of Hoboken, 337 N.J. Super. 149, 164-165 (App. Div. 2001)). N.J.S.A. 40A:12A-7(c) ("The redevelopment plan shall supersede applicable provisions of the development regulations of the municipality or constitute an overlay zoning district within the redevelopment area.")
The court finds that the statutory language cited by plaintiff does not enumerate those uses which constitute a public purpose and that plaintiff can not rely on the term "recreational facility" as it appears in the statute to boot strap the stadium as exempt. Rather, the statutory language is addressed to the planning objectives by which a redevelopment entity must abide in the creation and implementation of any redevelopment plan.
Provisions in the parties' contractual documents are not dispositive of the taxability or otherwise of the subject property.
Plaintiff places reliance on the fact that the lease and other relevant documents contain the term "Project" and/or "Property." For example, the leases states, "RBS' construction of the Stadium, Parking Lots, and Infrastructure on the Property shall hereinafter be referred to as the 'Project.'" Plaintiff repeatedly uses this as its claim that defendants concede to the property being a project, and as such, exempt from property taxes. However, such an argument is flawed in that the election of the parties in merely referring to the property in the lease documents as a "project" is not dispositive of being a "project" as defined by the statute. It is merely a descriptive term selected by the parties to the lease with no relation to the definitions set forth in the statute.
In advancing additional argument that the stadium meets the statutory definition of an exempt "property" of the HRA, plaintiff refers to the land and the stadium together as the subject "property," and continually uses that designation as a basis for its exemption claim. For instance, plaintiff writes, "The Lease refers to the development of the entire property- i.e., the Land and the Stadium (collectively, the "Property") - as part of a 'Project' involving the Agency, Authority and RBA." That description is inaccurate. While plaintiff may define the land and the stadium collectively as the "Property," the lease does not. Rather in the lease the "Property" is defined as the Spiegel land with existing structures.
Notably, the same lease covers the period when the property was leased to plaintiff to develop the land, during the period of construction, as well as an additional thirty-year leasehold period. The terms, "project" and "property" relied on by plaintiff, may have been intended to describe the construction period, or the period of stadium occupancy, or both. Therefore the terms are not indicative that the leases' designations are controlling for the purposes of the statutory tax exemption.
The lease terms contemplate four renewal periods of five years each, after the initial thirty-year term expires, therefore the court considers the lease to be a long-term lease.
Plaintiff also relies on the lease provision regarding payment of real property taxes. It states that "any leasehold interest of tenant in the property or premises" shall not be subject to real property taxes. Defendant argues that while the lease may contain such language, plaintiff has not produced facts that the assessor acted to grant a tax exemption to the stadium. Defendant supplied the Certification of the Harrison Tax Assessor who states that in fact he does not find that the stadium is exempt, and defendant cites the case Mayfair Holding Corp. v. Township of N. Bergen, 4 N.J. Tax 38 (Tax 1982), for the proposition that the doctrine of estoppel is not lightly invoked against a governmental agency, especially in tax matters which vitally affect the public interest. Contractual provisions cannot bar a determination of the legal issue of taxability which depends upon application of the facts to an analysis of the legal principles that govern statutory exemptions including an examination of the statutory purpose and whether the use of the stadium fulfills a public purpose. Plaintiff's claim for exemption as a "Redevelopment project" or as "Real property" under N.J.S.A. 40A:12A-3 of the LRHL or as "Property" or a "Public Facility" of HCIA pursuant to the Authorities Law, N.J.S.A. 40:37A-85.
Citing to language contained within the LRHL statute, plaintiff contends that the stadium property fits squarely within the description of a property or project of the redevelopment agency and relies on the definitional section of the LRHL for the terms "Redevelopment project" and "Real property." The statute defines "Redevelopment project" as,
any work or undertaking pursuant to a redevelopment plan; such undertaking may include any buildings, land, including demolition, clearance or removal of buildings from land, equipment, facilities, or other real or personal properties which are necessary, convenient, or desirable appurtenances, such as but not limited to streets, sewers, utilities, parks, site preparation, landscaping, and administrative, community, health, recreational, educational, and welfare facilities.
[N.J.S.A. 40A:12A-3]
Plaintiff argues that the stadium meets the statutory definition of "project" because it is both a "work and undertaking" of the town. Describing the stadium as a key component of the redevelopment plan which it states was "embraced" by the town as a "project," plaintiff urges the court to recognize that the town created a redevelopment agency to carry out the "project." It points as well to negotiations undertaken with the Metro Stars to encourage them to select Harrison as the new site for their home games. According to plaintiff, the town took ownership of the land, and subdivided and remediated the land, and issued bonds to enable the beginning stages of the stadium "project." The town closely followed the progress of the construction and attended planning board meetings and construction meetings and maintained an interest in the "project" so that it is used today in accordance with the redevelopment plan. Plaintiff contends that all of these efforts are "workings and undertakings" by the town or the HRA which bring the stadium within the reach of the statutory definition of a redevelopment project and should result in the stadium property being exempt.
In opposition defendant contends that the term "project" is not defined in the LRHL, but the context of the word's use -"projects and all other properties of the Redevelopment Agency"-as set forth in the exemption section 36, suggests that it refers only to "property" of the agency. According to defendant the stadium improvement was never a property of the HRA and therefore plaintiff's argument should fail. Defendant notes as well that the role assumed by the HRA in keeping apprised of the progress of the development of the stadium does not equate with any ownership interest in the stadium any more than it if the redeveloper had constructed a Walmart on the land.
The court is not persuaded by plaintiff's argument. The LRHL provides the town or the redevelopment agency with the power to undertake redevelopment and to take certain actions in furtherance of the redevelopment effort. In keeping therewith, the lease allows the HRA to enter the stadium during construction and to follow the progress of the developer. The LRHL also permits the public entity to expend funds to purchase and remediate the land, as did the agency in this instance. I find that the land was exempt as property of the HRA after it was purchased by the agency and during the clearing and planning stages, which is consistent with the constitutional authority of a public entity to take property for the public purpose of redevelopment. This court does not find that those actions combine to necessarily confer upon the plaintiff an exemption for the duration of the long-term lease. Rather, they constitute actions taken by the HRA in its role as overseer of the redevelopment of land taken by the HRA for such purposes. Whether the stadium property would be classified as an exempt project or property of the HRA once the stadium was completed, occupied, and operated by the private entity for the duration of the long-term lease period requires separate consideration by the court.
N.J. Const. art. VIII, § 3, ¶1.
Again turning to the general definitional section of the LRHL, which defines the term "Real property," plaintiff urges that the court read that term into the exemption section. "Real property" is defined as:
All lands, including improvements and fixtures thereon, and property of any nature appurtenant thereto or used in connection therewith, and every estate, interest and right, legal or equitable,
therein, including terms for years and liens by way of judgment, mortgage or otherwise, and indebtedness secured by such liens.
[N.J.S.A. 40A:12A-3]
Plaintiff argues that if the court applies the term Real property to the facts the stadium would be considered to be an "improvement and fixture" on the land. Since the HRA owns the land and the stadium is an improvement and fixture upon the land, it is an exempt property of the HRA. Plaintiff thereby concludes that the HRA has an "estate, interest and right" in the land in keeping with the definition of "Real property" as set forth in the statute.
Contrary to those arguments, defendant contends that "Real property," as defined in N.J.S.A. 40A:12A-3, cannot be used interchangeably with "all other properties," as used in section 36, the LRHL tax exemption provision, and that the broad definition of Real property in the former is not carried over verbatim to the latter, which instead limits the exemption to "projects and all other properties of a redevelopment agency." Defendant argues that the legislature could not have intended all real property in a redevelopment district be automatically tax exempt regardless of who owns the property or how it is used, since such an interpretation would render section 36 meaningless. Therefore, according to defendant, the definition of Real property in the LRHL has no application to the stadium property. The court agrees. The term Real property is not used to qualify the exemption. Had the legislature intended to use the term "Real property" in section 36 to define the exemption it would have done so, but it did not.
Nonetheless, RBA draws on the Real property definition and describes restrictions of the RBA's use of the stadium written into the lease, as well as HRA's reversionary interest in the improvement, as being "property interests" of the HRA which it contends fall within the meaning of the exemption. Plaintiff further asserts that the various agreements entered into between the parties, including the Redevelopment Agreement, the leases, a Non-Relocation Agreement and an Interlocal Development Agreement, were entered into in furtherance of the property development, all of which gave the Town, the HRA and the HCIA significant rights and interests in the Property and "significant control" over how the land is used.
In opposition, defendant contends that plaintiff built the stadium and owns it so it cannot be considered to be property of the HRA; therefore the lease is a misnomer. While plaintiff acknowledges that it constructed and owns the improvement, it dissuades the court from such a focus and claims that fee simple title ownership is not a condition for either of the statutory exemptions to apply since it was omitted by the legislature as a required element of section 36 and the statute expressly states ownership by the Authority is not necessary for N.J.S.A. 40:37A-85, the exemption section under the Authorities Law, to apply. Rather it argues that the court should find that defendants have real property rights in the stadium by virtue of the lease sufficient to warrant tax exemption.
A review of the lease terms does not afford a simple resolution to the issue. In fact, by its title, "Ground and Stadium Lease," the document signals confusion given that Red Bull is a tenant of both the land and the stadium despite its admitted ownership of the improvement.
The following analysis applies to plaintiff's contention that the stadium property is exempt under both the LRHL and the Authorities Law, and will be discussed more specifically as to the HCIA, infra.
The court finds that the land is owned by the HRA and the improvement is owned by the RBA, for which the HRA has a right of reversion. The issue before the court is whether the exemption applies only to the land and existing improvements once acquired by the HRA and during the time that the property was prepared for redevelopment, i.e., while the existing improvements were demolished by the public entity and while it was otherwise prepared for development, until the time the land was transferred to RBA, or whether the statutory exemption should also apply from the Lease Commencement Date until the end of RBA's long-term lease.
"Lease Commencement Date" is defined in the lease as the date either (1) on which the Certificate of Occupancy is issued for the Project or (ii) the date tenant commences operations in the Stadium.
When RBA negotiated with the town and agreed to locate and develop its stadium within the redevelopment area, it did so in accordance with those uses envisioned by the redevelopment plan. The plaintiff does not contend otherwise. Yet plaintiff alleges that the lease "only permits" plaintiff to use the improvement as a "stadium;" a restriction that it contends weighs in favor of a finding that it must be exempt property of the redevelopment agency. The court rejects that argument. The authority of a public entity to designate an area in need of rehabilitation and to acquire land for such a public purpose carries the corresponding statutory duty to create a plan tied to definite objectives. N.J.S.A. 40A:12A-7 ("redevelopment plan shall include an outline for the planning, development, redevelopment, or rehabilitation of the project area sufficient to indicate: (1) [i]ts relationship to definite local objectives as to appropriate land uses . . . (2) [p]roposed land uses and building requirements in the project area. . . .") Ibid. As such, to classify the limitation that RBA use the property as a stadium only, as a "restriction" on the rights of RBA, and as support that it is property of the public entity, undermines the design and intent of the statute.
Notably, the commercial nature of the stadium is emphasized in the lease. RBA is not limited in the sports and entertainment use of the stadium. Rather it is only restricted from using the stadium for certain unrelated types of activities, the nature of which would likely be barred through zoning restrictions regardless of whether the stadium was located in a redevelopment area. Specifically, plaintiff can not engage in wholesale sales, the use of the grounds for non- event public parking, adult entertainment, mortuary functions, for warehouse purposes or as a heliport. Further, RBA is not limited in the use of the non-stadium portion of the premises except for certain limited restrictions in the lease i.e., oil refinery, operation of a big box store, etc..
The court also finds that plaintiff's contention that the HRA is vested with ownership rights in the stadium because activities at the stadium are only permitted with the approval of HRA overstates the restriction. The tenant may hold any event at the stadium of which the HRA receives notice, the only limitation being a barring of events that have a "documented pattern of murder, riot, rape or substantial property damage" at the venue or surrounding neighborhood. Even then, HRA must obtain an injunction to bar such an event from taking place. Likewise, plaintiff cites the provision whereby it is restricted from holding major events until after 7:30 pm. However, the lease notes that the restriction is due to the limited capacity of the road system in the area, and states that if the road system is improved the timing of an event will no longer be restricted. Plaintiff also relies on a provision that limits where deliveries at the stadium may be received. The court finds that these are in the nature of zoning restrictions, not property rights. The LRHL requires that the redevelopment agency enforce such restrictions as part of its duties. As stated, the redevelopment agency must,
make, consistent with the redevelopment plan: (1) plans for carrying out a program of voluntary repair and rehabilitation of buildings and improvements; and (2) plans for the enforcement of laws, codes, and regulations relating to the use and occupancy of buildings and improvements, and to the compulsory repair, rehabilitation, demolition, or removal of buildings and improvements.
[N.J.S.A. 40A:12-8(j)] (emphasis added)
Plaintiff cites the fact that pursuant to the Non-Relocation Agreement the HRA also gains a benefit while the defendant suffers a restriction. However, that agreement, limited to seven years, relates to the soccer team, not to the owner of the stadium and does not restrict the plaintiff's use of the stadium for the broad commercial purposes as set forth under the lease terms.
The plaintiff makes the same arguments as to the HCIA.
The court does not find merit to plaintiff's contention that the stadium is property of HRA or HCIA by virtue of restrictions in any of the documents suggested by plaintiff. Plaintiff has exclusive use of the stadium. HRA's only right, or the only right to public use of the stadium, is a conditional right. The HRA may use the stadium for four civic events per year, and even then, only if the dates do not conflict with a soccer home game or other event scheduled by tenant. HRA can only charge an entrance fee for a civic Event with the prior written consent of the plaintiff. Moreover, plaintiff can also withhold its consent to a ticketed civic event if plaintiff decides that the civic event would "impair" or "interfere" with its business or income. And if the event is held, plaintiff is entitled to 50% of the net revenues. The court finds that these constitute significant controls and restrictions over the stadium by plaintiff.
On the other hand, many of the lease provisions that plaintiff calls "restrictions" on the use of the stadium, and which plaintiff then urges bring the stadium within the meaning of the exemption, are the kind related to any and all property developed through a redevelopment plan under the LRHL. Also, many relate to police power restrictions on the property, none of which adequately support a finding that the stadium is property of the public entity.
Lastly, plaintiff suggests that the lease places restrictions on RBA when it prohibits RBA from conveying certain property rights in order to avoid affecting HRA's reversionary interest in the improvement. RBA is restricted from granting a "license, easement or access rights over the Premises" so as not to be binding on plaintiff's reversionary interest. However, such a right can in fact be granted with the prior consent of HRA which consent "shall not be withheld or delayed unreasonably . . . ." The fact remains that RBA has the right to possession of the stadium to manage and operate it as a purely commercial enterprise, as a professional soccer and entertainment stadium, over an extended thirty to fifty-year lease term. RBA is operating the stadium located within a redevelopment area which certainly furthers the purposes of the statute, however, it does not trigger an exemption under N.J.S.A. 40A:12A-36 of the LRHL. The land with existing improvements was purchased to further the statutory purpose of rehabilitating an area occupied by brownfields in need of revitalization. Once the land was no longer held by HRA, but was transferred to RBA to be redeveloped and put to commercial use by RBA, it was no longer property of the public entity.
At the end of the lease period when the stadium reverts to the HRA, the improvement will likely have little or no usable life.
The court is not convinced by plaintiff's argument that the lease provisions described as "limitations" on RBA's rights or as property rights of the HRA during the long-term lease invoke section 36 of the LRHL. The statute is intended to provide the public entity with a reprieve from property taxes while it effectuates the statutory goal to redevelop an area in need, a goal intended to benefit the community. N.J. Const. art. VIII, § 3, ¶1. Under plaintiff's theory RBA would be relieved of its obligation to carry its fair share of taxes on the stadium property for a period of thirty to fifty years which would work a detriment to the remaining community upon which would be hoisted the responsibility of the added tax burden.
The court finds support for its determination in the provision of the New Jersey Constitution which declares that a public entity may take or acquire land for the purpose of redevelopment. Art. VIII, § 3, ¶1 reads:
The clearance, replanning, development or redevelopment of blighted areas shall be a public purpose and public use, for which private property may be taken or acquired. Municipal, public or private corporations may be authorized by law to undertake such clearance, replanning, development or redevelopment; and improvements made for these purposes and uses, or for any of them, may be exempted from taxation, in whole or in part, for a limited period of time during which the profits of and dividends payable by any private corporation enjoying such tax exemption shall be limited by law. The conditions of use, ownership, management and control of such improvements shall be regulated by law.
[N.J. Const. art. VIII, § 3, ¶1] (emphasis added)
The Constitution declares that redevelopment is a public purpose and therefore permits a pubic entity to take or otherwise acquire private property. Development of an unproductive area of a municipality constitutes a public purpose because it benefits the entire municipality. Bryant v. City of Atlantic City, 309 N.J. Super. 596, 613 (App. Div. 1998) (citing Roe v. Kervick, 42 N.J. 191, 207 (1964)).
The Constitution also authorizes a public entity to enact an Ordinance to grant a tax exemption or abatement to a private corporation which applies for relief from taxation on an improvement made on the land, which exemption may be granted for a "limited period of time" and that "conditions of use, ownership, management and control of such improvements shall be regulated by law." N.J. Const. art. VIII, § 3, ¶1. To that end the Legislature enacted the Long Term Tax Exemption Law (L. 1991, c. 441), N.J.S.A. 40A:20-1 to 20-21, and the Five Year Exemption Law (L. 1991, c. 41), N.J.S.A. 40A:21-1 to 21-21, which enable the municipality to provide tax exemptions to private redevelopers. As noted, according to the documents supplied by the parties to the court, Harrison did grant tax abatements to other commercial uses within the redevelopment area. Had RBA applied for tax abatement rather than attempt to convert the public entity exemption for its purposes, it may have resulted in tax relief. There was no evidence presented by the parties in this regard.
Does the stadium fulfill a public purpose?
One seeking an exemption must also prove that the actual use of the land constitutes a public as opposed to a private use. N.J. Turnpike Auth. v. Township of Washington, supra, 16 N.J. 38; Renaissance Plaza Assocs. v. City of Atlantic City, 18 N.J. Tax 342 (Tax 1998). Plaintiff contends that the plain language of the exemption sections of both statutes at issue warrants the grant of a property tax exemption on both the land and stadium for the duration of the lease with no further inquiry into the nature of the property's use. The argument that all properties acquired by a pubic entity automatically serve a public purpose contradicts the law and has been soundly rejected by the courts. In Renaissance Plaza, Judge Rimm of the Tax Court stated in clear terms that:
ownership, [by a public entity] alone, is not enough to qualify [ ] property for tax exemption. In addition to ownership by a public entity, there must also be public use of the property. This is clearly the law. In N.J. Turnpike Authority v. Washington Tp., 16 N.J. 38 (1954), the Supreme Court held that, in order for property to be exempt from local property taxation, there must be public use as well as public ownership, and public ownership without public use is not enough to qualify property for local property tax exemption. A public use is imperative, even if the property is that of the CRDA [Casino Reinvestment Development Authority], if the property is exempt from local property taxation.
[Id. at 354]
In order to apply the statutory exemption(s) this court must find that the land and the stadium are a property or project of the HRA or the HCIA within the meaning of either or both statutes, and that the property is used for a public purpose. Without such a showing the property is taxable, since plaintiff does not contend that any other basis for an exemption exists. Therefore, even if the stadium property is property of one or both the public entities, it must be used for a public purpose or else it will not be exempt from taxes.
According to plaintiff, notwithstanding that the relevant statutes make clear pronouncements that the stadium serves a governmental function since it is leased by the HRA and the HCIA and renders unnecessary the need to show a public purpose, the facts prove that it does. Initially, the town conceded that the land is exempt, so by its admission the land is used for a public purpose. It then follows that the stadium, constructed upon the land, must serve a public purpose. As well, the town condemned the land and issued bonds for purchase and clearing of the land. Plaintiff argues that the town admitted the property's public purpose when the town issued bonds in order to finance work done in furtherance of construction of the stadium.
Plaintiff argues that the town issued the bonds "to provide financial assistance to the . . . Agency, pursuant to N.J.S.A. 40A:12A-37 [of the LRHL], for the acquisition, remediation and preparation of the Land for uses consistent with the 2003 Redevelopment Plan," and cites to the statutory language that the bonds are "declared to be issued by a political subdivision of this State and for an essential public and governmental purpose." Plaintiff argues that it would be illogical for this court to find that the bond issuance and bond income are tax exempt as being for an essential governmental function and constitute a public purpose but that the improvement built on the land does not. It further alleges that the town could not issue the bonds under the LRHL unless they were in furtherance of that statute's purpose because, pursuant to N.J.S.A. 40A:12A-36, all bonds issued under the statute must be "for an essential public and governmental purpose;" and that by issuing the bonds under the LRHL the town has implicitly acknowledged a public purpose.
The court agrees that the public purpose furthered by the bonding was the acquisition of the land for redevelopment. The court does not, however, accept plaintiff's position that the act of bonding, without a showing that the stadium is used for a public purpose, is sufficient to warrant the exemption.
Plaintiff contends that, as set forth in the plan and documents relevant to this case, the stadium has a recreational use, and argues that our New Jersey Supreme Court has made clear that the concept of public purpose includes recreational uses like sports stadiums. N.J. Sports & Exposition Auth. v. McCrane, 61 N.J. 1, 15-16 (1972). Certainly, a stadium can serve a public purpose. The issue faced by this court is whether the stadium in this case serves a public purpose for the period of the long-term lease.
In support of its argument plaintiff cites examples of sports stadiums constructed in other parts of the State. Because the court was provided with no facts regarding the particular properties, including, whether they were the subject of abatement agreements or the basis of the exemption claimed, and because none of plaintiff's stadium examples involved the exemption statutes at issue, they do not support plaintiff's position that the subject stadium property serves a public purpose and should be exempt for the duration of the long-term lease period.
Defendant argues that plaintiff's interpretation of the statutes would contradict years of exemption jurisprudence, and relies on Jersey City Redevelopment Agency v. Bancroft Realty Co., 117 N.J. Super. 418 (App. Div. 1971), and Brick Stores, Inc. v. Township of Bridgewater, 4 N.J. Tax 412 (Tax 1982), for the proposition that the use of the property for an exempt purpose is always a relevant inquiry. According to defendant, if the court were to apply plaintiff's understanding of the statute it would render use an unnecessary question as plaintiff alleges that all properties of the redevelopment agency are exempt. Defendant also contends that while the term "recreational activity" as it appears in the LRHL and relied on by plaintiff is not defined, it can not be expanded to include a privately run stadium merely because it houses sports events. Further, argues defendant, the stadium does not serve as a recreational activity for the towns' people as intended by either of the exemption statutes at issue since town soccer teams, little league teams, and all other members of the public are unable to enter and use the stadium at will.
As reiterated by the Supreme Court:
[a]ll real property within New Jersey is subject to taxation, N.J.S.A. 54:4-1, unless expressly exempted by the Legislature, see N.J.Const. art. VIII, §1, P2 (authorizing legislative exemptions). Judicial interpretation of statutory tax exemptions is governed by principles of general statutory construction. [ ] Thus, when interpreting a statutory exemption, the Legislature's intent is the paramount goal . . . and, generally, the best indicator of that intent is the statutory language. [ ] (The decision turn[s] upon the intention of the Legislature in the statute creating the agency and providing for the exemption.)
[Township of Holmdel, supra, 190 N.J. at 87] (internal citations and quotation marks omitted)
In making its determination, the court must examine the intent of the LRHL. The purpose of the law is to identify areas that the town finds are blighted - that is to address "conditions of deterioration in housing, commercial and industrial installations, . . . and improper, or lack of proper, development which result from forces which are amenable to correction and amelioration by concerted effort of responsible public bodies, and without this public effort are not likely to be corrected or ameliorated by private effort." N.J.S.A. 40A:12A-2. Through the law the legislature has "empowered and assisted local governments in their efforts to arrest and reverse these conditions and to promote the advancement of community interests through programs of redevelopment, rehabilitation and incentives to the expansion and improvement of commercial, industrial, residential and civic facilities." Ibid. (Emphasis added.)
The LRHL permits the development to be contracted to a private party or to be undertaken by the agency. The fact that the town was involved in the redevelopment at various stages, and issued bonds for purchase of the land, does not establish that the use of the stadium serves a public purpose given that the foundation for the statute itself relies on the cooperation of public and private forces. The role of the public entity is crucial to ensure that the intent of the statute is fulfilled. In this matter, a developer contract executed between the town and AAH obligated AAH to redevelop the area. In the case of the stadium, AAH relinquished its rights to development of the stadium in favor of RBA. The town and the HRA acted to prepare the plan, acquire the land, prepare the land, and then leased the land to the RBA to construct and operate its stadium, actions taken to implement the expansion and improvement of the area with a commercial sports stadium.
The redevelopment plan enacted by Harrison was intended as the footprint for the redevelopment of one third of the town; "the [1998] Plan attempts to improve the Town's tax base" and "create locations for new job opportunities." Specific goals include promotion of "the effective use of all Redevelopment Area property and to increase the property tax base of the Town." According to the terms of the plan, the residents of the town would benefit from a "strengthened and diversified tax base," "increased employment and entrepreneurial opportunities," "expanded retail and entertainment choices" and overall aesthetic and environmental improvement of the area, including through construction of a waterfront walkway and parks. Plaintiff argues that because the stadium was part of the redevelopment it must be exempt since redevelopment is a public purpose. If there was merit to the argument, all of the properties in the redevelopment area would be exempt as projects (or as property) of the HRA. As such, the court rejects that notion.
A public use or purpose, aside from the fact that the stadium property is a component of the redevelopment plan, is required regardless of whether the property is owned by the public entity or by RBA. Further, the purposes set forth in the plan comport with defendant's interpretation of the statute rather than with that of plaintiff; the expectations are that the condemned properties will be replaced with enterprises that will strengthen and diversify the tax base rather than dilute or remove the tax base. The intent of the statute is to permit public entities to rehabilitate underutilized properties for the benefit of the public, and the intent of the redevelopment plan is to enhance the tax base of the town. Plaintiff's right to operate and maintain the property as a private commercial enterprise for a term of thirty to fifty years does not comport with a public purpose that would warrant exemption from taxes for that period. See N.J. Turnpike Auth., supra, 16 N.J. at 43 (The enabling act permitted the Turnpike to take land only for the purposes set forth in the statute, "construction, operation and maintenance of turnpike projects." N.J.S.A. 27:23-3. "The permanent taking of private property can be justified only if in the public interest and for the purposes specified in the enabling act." Land obtained and held by the authority which was not used for a public purpose was not entitled to the exemption while not put to a public use.)
The Authorities Law
The court will address plaintiff's specific arguments as they apply to the Authorities Law, some of which are identical to those set forth, supra. The exemption contained at N.J.S.A. 40:37A-85 states:
All properties of an authority are hereby declared to be public property of a political subdivision of the State and those properties, and all public facilities, whether or not owned by the authority, are devoted to an essential public and governmental function and purpose and shall be exempt from all taxes and special assessments of the State or any subdivision thereof.
Plaintiff argues, as with the section 36 exemption in the LRHL, no inquiry into the use of the stadium is necessary because of the broad language used by the legislature that "[a]ll properties of an authority are hereby declared to be public property of a political subdivision of the State" and "those properties, and all public facilities, whether or not owned by the authority, are devoted to an essential public and governmental function and purpose and shall be exempt from all taxes."
In further support of its claim, plaintiff points to the section of the Authorities Law which defines "Real property" as "lands within or without the State, above or below water, and improvements thereof or thereon, or any riparian or other rights or interests therein." N.J.S.A. 40:37A-45. Plaintiff argues that the subject property, comprising of the land and stadium, is an exempt property under the Authorities Law because it constitutes "lands . . . and improvements thereof or thereon." Ibid. Further HCIA's interest in the property, by virtue of the leases constitutes a "right" or "interest" in the property within the meaning of the statute. For those reasons, plaintiff insists that the stadium is property of the authority and should be exempt.
Defendant states that the stadium is not a "Property" of the HCIA as the term is defined in the lease. As noted above, the lease defines the property as 12.34 acres of land, with structures on the land. Defendant states that the reference to structures was clearly referring to the existing buildings that were to be demolished on the condemned land. Furthermore, defendant highlights that the Sublease states that "Subtenant [plaintiff] shall own all of the improvements constructed on the property by subtenant . . . ." Based on this, defendant alleges that the stadium is not a property of the Authority within the meaning of the statute.
Public facility, in N.J.S.A. 40:37A-45, is defined as:
any . . . structures . . . or other property or facilities . . . financed, or leased by the authority . . . to accomplish any of the purposes of an authority . . . .Plaintiff argues that the stadium is a public facility within the meaning of the above mentioned statute "because the acquisition, purchase, and remediation of the land were 'financed' by the Authority, the Authority leases the property from the agency and to RBA, and the Authority does so in order to accomplish the Authority's purposes." Further, the purposes of the Authority include "maintenance and operation of facilities for the recreation and entertainment of the public" which covers the stadium. N.J.S.A. 40:37A-54(h).
As noted, the LRHL includes a county improvement authority as a permitted redevelopment entity. N.J.S.A. 40A:12A-4. The statute reads as follows: "A county improvement authority authorized to undertake redevelopment projects pursuant to the 'county improvement authorities law' . . . may also act as a redevelopment entity pursuant to this act." As well, the Authorities Law permits the rendering of financial assistance for redevelopment projects. N.J.S.A. 40:37A-54(i), (j) and (k).
Defendant states that since HCIA did not issue any bonds to finance the construction of the stadium, the stadium cannot be a public facility. It is an agreed fact that the stadium was financed and constructed and is operated by the plaintiff, and the HCIA only financed the land purchase (as did the town through issuance of its General Obligation bonds). As the argument unfolded regarding the application of the exemption contained in the LRHL regarding the "rights" of the HRA in the property, and as related to the act of the Authority in having issued bonds related to the land purchase, so plaintiff repeats the argument as to the Authorities Law. Rather, than focus on "ownership" of the stadium, plaintiff contends that the two concerns critical to the court's consideration, infra, are whether plaintiff fits within the statutory definition and whether the stadium fulfills a public purpose.
Specific to plaintiff's claim that the property is exempt under the Authorities Law, the court recognizes the following cases which provide examples of a public facility as intended by the statute. See Rumana v. County of Passaic, 397 N.J. Super. 157 (App. Div. 2007) (county sold golf course to Passaic County Improvement Authority (PCIA) which was then a property of the PCIA); Hudson County Improvement Auth. v. Town of Kearny, 10 N.J. Tax 589 (Tax 1989), aff'd, 244 N.J. Super. 619 (App. Div. 1990) (County Improvement Authority as designated implementing agency of county waste management plan acquired three properties in Kearny to be used as resource recovery facility; Improvement Authority entitled to have its property exempt.)
The facts of this case are inapposite to those in the cases cited where properties were operated by the HCIA and exempt. The court finds that the stadium is not a publicly owned facility operated or maintained by the Authority as plaintiff suggests. Rather, the Authority assisted in financing the purchase of the land and leases the land to plaintiff, all as part of its role in furtherance of the redevelopment plan. I find that the HCIA acted to facilitate the redevelopment by contributing to the financing of the property purchase, a role authorized by the Authorities Law. N.J.S.A. 40:37A-54(i). Therefore, the stadium property is not exempt under N.J.S.A. 40:37A-85.
Relevant case law
Abundant case law applying the terms of the LRHL exists challenging the public entities' designation of an area as blighted or in need of redevelopment. As well, the condemnation of properties located in the designated redevelopment area, by the town or by the developer, has spurred countless court rulings. Unlike those challenges, a thorough search of the law by this court reveals that neither application of section 36 of the LRHL, nor section 85 of the Authorities Law, to facts like those here presented has been addressed by the court. This matter represents a case of first impression.
Section 36 was considered by the court in one prior case, Hayes Homes Urban Renewal Corp. v. City of Newark, 20 N.J. Tax 528 (Tax), aff'd, 21 N.J. Tax 273 (App. Div. 2003). The issue was whether the exemption provision applied to land owned by a municipal housing authority and leased to a private organization for the construction of low income housing, but the only time timeframe during which the exemption was sought was the limited period of approximately eighteen months, during the property development period. The court found that the property was exempt under section 36 during that limited time period.
On August 1, 1998 Hayes House, a private organization, leased land owned by the municipal Housing Authority to develop 92 subsidized, low-income housing with twenty of the units to be dedicated to foster families under a state incentive to promote foster parenting in urban areas as well as the construction of a non-profit day care center and community center, and the provision of free job-training, health care, education, and transportation services. The development was funded by a large grant from the Department of Housing and Urban Development. The parties entered into an abatement agreement in 1997 to commence on the date of issuance of the first certificate of occupancy, stipulated to be October 15, 2000. It was agreed that the abatement would then continue throughout the thirty-year lease term. Despite their agreement, the city sought to place the property on the tax roles during the development period, prior to October 15, 2000. As a result, Hayes House filed an appeal for an exemption of the property covering the development period; a portion of 1998 and for tax year 1999. The court examined the use and found that the exemption applied and the Appellate Division summarily affirmed the Tax Court decision.
The court noted that the agreement entered into by the parties was a "lease-purchase agreement" however the opinion did not describe the terms of the agreement.
Plaintiff relies on Hayes Homes to support its claim that the subject property should be exempt throughout the duration of the lease term. In Hayes Homes, the court only considered whether the exemption applied to the development period, since the property was subject to an abatement agreement during the remainder of the lease period. Therefore, the case does not support plaintiff's position.
Plaintiff's position also relies on two cases in which the court considered the statute which governs the activities of the New Jersey Sports and Exposition Authority ("NJSEA") and which contains similar "public purpose" language as found in the LRHL, Braha v. N.J. Sports & Exposition Auth., 2006 N.J. Super. Unpub. LEXIS 1324 (App. Div. 2006) and In re Xanadu Project at Meadowlands Complex, 415 N.J. Super. 179 (2010).
Defendant distinguishes the cases by stating that the NJSEA was formed to carry on an essential governmental purpose, unlike the HCIA or the HRA, both of which were not formed for the unique purpose of carrying on day to day public activity. As well, once redeveloped the subject property contains a privately operated facility over which plaintiff, rather than the HRA or the HCIA, controls all day-day use and access. It is not a town recreational facility and plaintiff does not operate the facility on the town's behalf.
In the first case, Braha, appellants challenged the decision by the NJSEA to award a contract for the redevelopment of the Continental Arena located at the Meadowland Sports Complex for the construction of retail space. Among the issues considered by the Appellate Division was whether the property was a project of the NJSEA under the exemption section of the New Jersey Sports and Exposition Authority Law, N.J.S.A. 5:10-18(a), and thereby tax exempt. The Appellate Division found that the exemption applied.
Plaintiff contends that Braha should control since the exemptions contained in the two statutes which plaintiff seeks to apply and in the Sports and Exposition Law, share similar language, and in both cases the public entity and the developer entered into a long-term lease of land owned by the public entity. The court does not find that Braha provides support for the position that the stadium is a project of the HRA, or of the HCIA, and entitled to an exemption for the term of the lease for two reasons. First, as instructed by R. 1:36-3, unpublished opinions of the courts have no binding authority on trial courts. "No unpublished opinion shall constitute precedent or be binding upon any court." R. 1:36-3. Second, the NJSEA enabling statute and its provisions are entirely different from the LRHL and the statutory purposes are distinct.
The State Legislature established the NJSEA in 1971 to build and operate the Meadowlands Sports Complex, including Giants Stadium and the Meadowlands Racetrack, and enacted the statute to "bring about the construction, operation and maintenance of a sports complex on a site not to exceed 750 acres in the Hackensack meadowlands." N.J. Sports & Exposition Auth. v. McCrane, supra, 61 N.J. at 9. "The Legislature envisioned and authorized the development and operation on. . . a project consisting of 'one or more stadiums, coliseums, arenas, pavilions, stands, filed houses, playing fields, recreation centers, courts, gymnasiums, club houses, a race track' and other structures and facilities suitable for the holding of sporting events, trade shows, other expositions or public meetings." Ibid.
"As constituted the [NJSEA] is a financially self-sustaining governmental instrumentality." Id. at 10. The NJSEA was created as part of a particular statutory scheme with the long-term goal to develop and operate a horse race track with pari-mutual wagering. Revenues from the horse track, and from the entire complex once completed, would be dedicated to the operation and maintenance of the race track and to the future sports complex. The proceeds would also be used for the payment of interest and principle of the bonds or notes issued, and payments made to the municipalities where lands were taken, with a portion of the revenue also to be dedicated to the General Fund of the State of New Jersey, a portion of which is appropriated to the Meadowlands Commission. Ibid.
I find that the statutes at issue and the NJSEA have distinct purposes and distinct provisions addressed toward different statutory purposes. The NJSEA, like various authorities and agencies in New Jersey which are the subject of the cases cited by plaintiff, infra, was created as an instrumentality of the state to exercise a particular, continuing governmental function, unlike the activities undertaken by the public entities at issue here. The state elected to form the NJSEA as an authority for the unique, specific purpose of developing and operating recreational facilities in the meadowlands and dedicated state money to the venture. Therefore, this court is not bound by the interpretation of the term "project" as contained in the New Jersey Sports and Exposition Authority Law.
As to the second case, In re Xanadu, supra, the court finds plaintiff's reliance misplaced because the exemption provision contained in the NJSEA statute was not considered by the court in that case. The matter was on appeal from the final decision of the Director of the Division of Alcoholic Beverage Control ("ABC") which granted a special concessionaire alcohol permit to the Benihana restaurant. The restaurant was to be located in the proposed Xanadu development within the Meadowlands Sports Complex. Central to the court's decision was a review of the ABC regulations that govern the issuance of the alcohol permits and whether the legal requirement that the land be state-owned for the issuance of a permit had been met. The court was not called upon to rule on the language or effect of the statutory exemption.
Does RBA's operation and maintenance of the stadium constitute an essential governmental function.
Plaintiff seeks to find support for its theory in cases, all of which involve an agency or authority statutorily authorized to undertake a continuing essential governmental function (which is performed by a private entity), and compares them with the public entities in this matter. See Township of Holmdel, supra, 190 N.J. at 74 (Highway Authority was created to construct, operate and maintain highways and highway services. Amphitheater considered an exempt highway project since it was utilized in furtherance of agency's statutory mandate of providing "public access to performing arts and generating revenue."); Walter Reade, Inc. v. Township of Dennis, 36 N.J. 435, 439-441 (1962) (private for-profit restaurant facility operating on Highway Authority property was exempt under New Jersey Highway Authority Act since Highway Authority was created to construct, operate and maintain highways and highway services where "Legislature intended that the Authority furnish these facilities as part of its public service."); N.J. Highway Auth. and McDonald's Corp. v. Town of Bloomfield, 8 N.J. Tax 637 (Tax 1987) (McDonald's restaurant on highway exempt from tax under New Jersey Highway Authority Act because the Garden State Parkway consists of highway and service areas and service facilities owned by the Highway Authority which operates and maintains the highway. "The New Jersey Highway Authority was created by the New Jersey Highway Authority Act, . . . constitutes . . . 'an instrumentality exercising public and essentially governmental functions' and includes among those functions 'the operation and maintenance of projects' which are defined in Section 3(d), [ ] to include 'service areas, service stations, service facilities.'"); Newark v. Essex County Bd. of Taxation, 54 N.J. 171, 187 (1969) (certain properties within Port Newark Terminal owned by the city and leased to Port of New York Authority to develop marine terminal were used for statutorily authorized purposes and therefore exempt.); Egg Harbor v. Atlantic County, supra, 10 N.J. Tax 7 (county owned property leased to New Jersey Department of Corrections for use as juvenile detention center, but operated by private entity, at direction of public entity to accomplish public purpose of the operation of juvenile detention facility, exempt.) See also, Bergen County v. Borough of Leonia, 14 N.J. Tax 142, 154 (Tax 1994) (stables owned by county on county owned land and previously operated by County Park Commission prior to dissolution of the Commission exempt when leased to private entity to operate stables on county's behalf.)
The HRA was not created to undertake a function similar to those public authorities described above which were formed with the specific goal of operating highways and other essential and ongoing governmental services. The court finds that the cases have no application to these facts. In each of the cases relied upon, the agency was formed to operate and maintain property for public use and contracts with a private party to provide the service.
The redevelopment agency does undertake a governmental function in acquiring the land for the purpose of redevelopment and in implementing the redevelopment plan. However, neither HRA nor HCIA was created to nor elected to construct, own or operate the sports stadium. Arguably, even if the HRA is statutorily authorized to operate a public recreational facility, the undisputed facts reveal that plaintiff does not operate the stadium as a public facility on behalf of either entity, nor does the HCIA. Rather, plaintiff leases the land from a public entity and operates a private business from which it receives all of the revenue. In the event the HRA elected to build and operate the stadium, the exemption would apply only if the property was used for a public purpose which the stadium is not. RBA operates the venture for its own economic benefit. Plaintiff is obligated to pay $150,000 yearly rent for the land and collects all revenues generated from the multi-use stadium. RBA does not operate the stadium as an agent of the town, or under a contract with the town. Further, plaintiff's operation of the stadium in holding recreational events that the public can attend does not equate with the kind of essential public governmental function that defines a public purpose recognized by the courts.
Among other powers granted to the public entity under the LRHL, N.J.S.A. 40A:12A-22 provides the public entity with the authority to sue or be sued, borrow money, "[c]omplete, administer, operate, obtain and pay for insurance on, and maintain, renovate, repair, modernize, lease or otherwise deal with any property." (Emphasis added.) Based on a reading of the LRHL as a whole and its purpose as it relates to redevelopment, the highlighted language may or may not apply only to improvements existing on land at the time of the purchase by a redevelopment agency, similar to the improvement that existed on the land purchased by the HRA and which it demolished after purchase of the land. However, with regard to the provision of public housing, the statute specifically authorizes that a housing authority may own, operate and maintain a housing project. N.J.S.A. 40A:12A-16. Housing authority may "plan, construct, own, and operate housing projects . . . ." Ibid.
The court declines to apply the exemption to the stadium property. The land acquired by the town and transferred to the HRA (and HCIA) for redevelopment efforts was exempt while it was held by the HRA for the statutory purpose of redevelopment, as a project or other property of the HRA. Once the property was transferred to plaintiff, the private developer, the property no longer served a public purpose. Instead, the stadium was constructed as a commercial multi-use stadium for plaintiff's private use operated in a redevelopment area on land that no longer serves a public use. The fact that plaintiff agreed to allow HRA to hold four civic events per year at the stadium does not detract from the character of the stadium as an inherently and substantially significant private, commercial use, which use is unrelated to any essential governmental function being undertaken by or on behalf of a public entity. To find otherwise would contravene the purpose of the LRHL and burden the taxpayers with an unfair property tax burden when there was a distinct focus on enhancing the town's tax base in the plan; with the stated goal being to improve, increase, strengthen and diversify the town's tax base.
The court finds guidance in the Renaissance Plaza case where the court applied a provision in the Casino Control Act that exempts from taxes "all property" of the CRDA. The Legislature's purpose in creating the CRDA was to encourage investment in, or financing of, eligible projects in the Atlantic City region "to generate revenue for the City by encouraging investment in, and addressing the pressing needs" of the region. Renaissance Plaza Assocs., supra, 18 N.J. Tax at 352. The court found that the lease, which included the right to purchase the property, conveyed ownership of the property to plaintiff and declined to apply the exemption. Id. at 352-353. This court finds, as did Judge Rimm, that "local property taxes are the primary source of revenue for [the city]. Each parcel of land in the city must bear its fair share of the tax burden. Allowing the rental of properties by the [authority] to shield tenants from local property taxes contravenes the very essence of the Act." Id. at 352. See also, Forbes, supra, 312 N.J. Super. at 524, where commercial blight was "expressed in terms of economic deterioration and the disproportion between the cost of municipal services and the generation of tax revenues."
The court extended the ownership doctrine to the lease to fulfill the intent of the Legislature and found that a shopping center built with CRDA funds on property owned by the CRDA was not exempt property of the authority. In this case the court does not find that the lease should be construed to constitute ownership, and, as noted, supra, ownership is not a requirement of either of the exemptions at issue.
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This court finds that plaintiff has not met the burden to show that the stadium property is a "property or project of" either public entity, nor has it shown that the stadium has a public use. Once transferred to the plaintiff, neither the land, nor the improvement constructed thereon, was put to a public use. Thereby neither statutory exemption relied on by plaintiff applies to exempt the property.
Notably, the question whether the stadium enjoys the benefit of an exemption under section 36 of the LRHL would have been easily resolved under the language of the prior enactment governing redevelopment, N.J.S.A. 40:55C-1 to 39, known as the "Redevelopment Agencies Law." The relevant provision (L.1949, c.306, p.991 §25, as amended by L.1951, c. 87, p. 481, §1, eff. May 17, 1951) reads:
All properties acquired by an agency for purposes in accordance with the provisions of this act are hereby declared to be public property of a political subdivision of the State devoted to an essential public and governmental function and purpose and shall be exempt from all taxes and special assessments of the State or any subdivision thereof, until such time as they are leased, sold or in any other manner, contracted to a private person or corporation however, any such property sold, leased or contracted to a private individuals or corporations for development under a re development plan shall have the same tax status as property owned by private individuals or corporations. During the time an agency is managing, operating and maintaining real property prior to actual clearance, development or redevelopment of such property or sale, lease or other disposal of such property pursuant to the provisions hereof; it may pay to the municipality in which the real property is situated out of the net income from the property, in lieu of taxes, an annual service charge for municipal services supplied to said property in an amount not exceeding the tax on the property for the year it was acquired by the agency. The amount of such annual service charge shall be as set forth in a written agreement to be entered into between the municipality and the agency.
[N.J.S.A. 40:55C-25]
In the statute the word "however" was not italicized until the 1951 amendment. The 1951 amendment also added the second sentence, i.e., "During the time an agency is managing, operating . . . by the agency." The statute did two things that the LRHL does not. First, it made clear that the once the property acquired by the agency for redevelopment was transferred by any manner to the redeveloper it would not be exempt. Second, if the redevelopment agency purchased land which contained an ongoing business, it could operate and maintain the enterprise and make payments to the municipality out of the net income of the enterprise, pending clearance of the land for redevelopment.
While N.J.S.A. 40:55C-1 to 39 was repealed it certainly provides the court with guidance as to role assumed by the redevelopment agency under the statute. The provision in the redevelopment law regarding the wording of the exemption was changed. However, important sections of the prior 1951 enactment were borrowed from that law and nearly identical language appears in the LRHL. For instance, critical terms that appear in the definitional section, the definition of "Real property" is identical, and the definition of "Project" in the 1951 enactment, now known as "Redevelopment project" in the LRHL is reproduced nearly word for word.
The underpinnings of the law have not changed either. In the declaration section contained in the prior statute, the legislature set forth the policy of the State to "promote the health, safety, morals and welfare of the citizens" by addressing blighted areas through the creation of redevelopment agencies "for the public purposes of acquiring and replanning such areas" and "of holding, redeveloping or disposing of them in such a manner that they shall become available for economically and socially sound development by private or public enterprise or by a combination of both." N.J.S.A. 40:55C-2.
The 1951 statute was repealed in 1992 and the LRHL was enacted in an effort to consolidate the laws directed toward the public entities' correction of blight. The LRHL no longer contains the bright line distinction which directed that property acquired by the agency once conveyed to a private entity, is no longer exempt. Under the facts before the court, that would have meant once the lease was executed the property was no longer exempt. The LRHL was not accompanied by any legislative history to explain the intent of the statute and why the language was changed.
The sponsor's statement to the bill (A1138/ S617) does explain that the purpose of the bill, and of the repealer of the prior enactments on the topic, was to consolidate related laws and to account for bonding practices of local entities involved in redevelopment, not to affect the exemption provision. It reads as follows:
This bill, entitled "Local Redevelopment and Housing Law" revises, consolidates and clarifies the various statutes related to the exercise of redevelopment and housing powers by local governments into a modern and comprehensive statute. The revision was recommended by the County and Municipal Government Study Commission in its report, Local Redevelopment in New Jersey. [ ] This bill strengthens the fiscal oversight over local redevelopment and housing activities by relating the financing provisions of the bill to the "Local Authorities Fiscal Control Law," . . . At the same time it incorporates modern bonding provisions for local entities engaged in redevelopment or housing. Two acts passed at the end of the 1991 Session, chapters 431 and 441, consolidating and coordinating existing laws for assisting redevelopment and rehabilitation through the granting of tax exemptions and abatements, depend in large part upon concepts and terminology derived from this bill . . .
The prior Act and exemption provision, having been repealed, the court must apply the present version of the redeveloplent law, the LRHL. However, the sponsor's statement makes clear that a main purpose of the repeal of the prior legislation and enactment of the LRHL was to consolidate related laws and modernize the law as it relates to redevelopment. A careful examination and comparison of the 1951 enactment with the LRHL reveals that the original definitions of "Real property," "Project/redevelopment project" and "redevelopment area" are nearly word for word identical in both statutes.
Further, the language of the LRHL includes the legislative intent. N.J.S.A. 40A:12A-2, entitled "Legislative findings and declaration" reads:
The Legislature hereby finds, determines and declares:
a. There exist, have existed and persist in various communities of this State conditions of deterioration in housing, commercial and industrial installations, public services and facilities and other physical components and supports of community life, and improper, or lack of proper, development which result from forces which are amenable to correction and amelioration by concerted effort of responsible public bodies, and without this public effort are not likely to be corrected or ameliorated by private effort.
b. From time to time the Legislature has, by various enactments, empowered and assisted local governments in their efforts to arrest and reverse these conditions and to promote the advancement of community interests through programs of redevelopment, rehabilitation and incentives to the expansion and improvement of commercial, industrial, residential and civic facilities.
c. As a result of those efforts, there has grown a varied and complex body of laws, all directed by diverse means to the principal goal of promoting the physical development that will be most conducive to the social and economic improvement of the State and its several municipalities.
d. It is the intent of this act to codify, simplify and concentrate prior enactments relative to local redevelopment and housing, to the end that the legal mechanisms for such improvement may be more efficiently employed.
Plaintiff argues that the statute was amended to promote redevelopment by increasing the opportunity and availability of the exemption. However, the plain language of the statute does not support plaintiff's interpretation. Rather, the Legislature was clear that the design of the LRHL was to "codify, simplify and concentrate" prior enactments related to redevelopment and housing in an effort to more "efficiently employ" the process, rather than to expand application of the exemption provision.
Conclusion
I find that the LRHL is designed to exempt the property acquired for the purpose of redevelopment for that period during which it is held by the redevelopment agency until it is transferred to a private entity for development. During the stages of the land taking, development design and planning, demolition and land clearance, the subject property was a project or property of the agency. The exemption was lost when the property was transferred to plaintiff, and no longer held by the redevelopment agency for the stated statutory public purpose of redevelopment. At that time it no longer fulfilled the statutory purpose of the exemption and, further, was not put to a public use, and therefore was no longer exempt.
As previously ordered by the court, plaintiff's motion for summary judgment is denied and defendant's cross-motion for summary judgment is granted for the reasons more fully set forth herein.
Sincerely,
Christine M. Nugent, J.T.C.