1. New Jersey Future Redevelopment Forum
March 1, 2013
Redevelopment and Port Authority:
Competing and Complimentary
“Public Interests”
Anne S. Babineau, Esq.
Wilentz, Goldman & Spitzer, P.A.
90 Woodbridge Center Drive
Woodbridge, New Jersey 07095
2. Compact of 1921
Port Authority of New York and New Jersey
• Created by “Compact of 1921.”
• A political compact, by its very nature, shifts a part of a
state's authority to another state or states, or to the
agency the several states jointly create to run the
compact," the Appellate Division held in Dittrich v. Port
Authority of New York and New Jersey, Dkt. No. A-1289-
11T1, 2012 N.J. Super. Unpub. LEXIS 2254, Oct. 4,
2012.
3. Compact of 1921
• “The Port Authority was created in 1921 by an interstate
compact between New York and New Jersey, the New
York-New Jersey Port Authority Compact of 1921 (the
Compact), and with the consent of Congress, pursuant
to the Compact Clause. U.S. Const. art. I, § 10, cl. 3.”
Dittrich, 2012 N.J. Super. Unpub. LEXIS 2254, *2.
4. Compact – Creates
“instrumentality” of NJ and NY
• As a bi-state entity, the Port Authority is to "be regarded
as the municipal corporate instrumentality of the two
states for the purpose of developing the port...." N.J.S.A.
32:1-33 (emphasis added); see also Bunk v. Port Auth.
of N.Y. & N.J., 144 N.J. 176, 184 (1996) ("The Port
Authority is not the agency of a single state but rather a
public corporate instrumentality of New Jersey and New
York."). Dittrich, 2012 N.J. Super. Unpub. LEXIS 2254,
*2.
5. Compact
• The Compact defined a Port District
– Provided for its administration by a Port Authority that
was to coordinate terminal, transportation, and other
facilities of commence.
– Also responsible for development, construction,
operation and protection of the Port District.
6. Potential for Competing
“Public Interests”
• If States decide to advance the mutual interests of the
citizens of both states by joint action to overcome
common problems, they have to cede power to allow PA
to carry out the delegated duties and responsibilities.
• Depending on how far the grant of power to the PA is
determined to extend, State/Local can be determined to
have deferred the exercise of what would have been
their power to advance public interest.
7. Eastern Paralyzed Veterans
Assn., Inc. v. Camden
The Controversy:
• “EPVA sued the City and the DRPA to require the
installation of an elevator [which DRPA had not included
in plans for station]. The EPVA alleges that under
N.J.S.A. 52:27D-129b the construction by the DRPA of
any structure or building in the State of New Jersey is
subject to the requirements of the State Uniform
Construction Code Act….” Eastern Paralyzed Veterans
Assn., Inc. v. Camden, 111 N.J. 389, 395 (1988).
• The City of Camden claimed that it wanted to install the
elevator but that the DRPA and PATCO had prevented it
from doing so.
8. Eastern Paralyzed Veterans Assn.,
Inc. v. Camden: Court’s Decision
• Decision:
• “We hold that the State of New Jersey cannot exercise
unilateral jurisdiction over the DRPA; to the extent that
the judgment of the trial court involves a mandatory
injunction to compel the DRPA to comply with the
directives of the Department of Community Affairs, that
judgment must be vacated.” Eastern Paralyzed
Veterans Assn., Inc., 111 N.J. at 407.
9. Eastern Paralyzed Veterans Assn.
v. Camden: Court’s Decision
• Rationale:
“…to hold that the DRPA is subject to the New Jersey
Uniform Construction Code would result in the
imposition, unauthorized by the bi-state compact, of
substantial duties or responsibilities on that Authority.
Both New Jersey and Pennsylvania have consistently
required complementary state legislation for single-state
jurisdiction to be exercised over the Authority.” Eastern
Paralyzed Veterans Assn., Inc., 111 N.J. at 398.
10. Eastern Paralyzed Veterans
Assn., Inc. v. Camden
• The Court said:
“…[B]efore a court can conclude that the agency
impliedly consented to New Jersey's design
requirements, it must consider the question of whether
the structural change would significantly affect PATCO's
operations.” Eastern Paralyzed Veterans Assn., Inc.,
111 N.J. at 392.
11. Eastern Paralyzed Veterans Assn., Inc.
v. Camden: Rationale of Decision
• “…[W]e are led ultimately to consider the real policy
question in this case. That question is not whether there
shall be an elevator in a building, but whether and on
what terms the handicapped shall have access to public
transportation. For underlying the dry technicalities of
jurisdiction is the more fundamental question of
governmental transit policy. It is not the burden of an
elevator on its property that troubles the DRPA, but the
burden of an elevator on its rail operations.”
Eastern Paralyzed Veterans Assn., 111 N.J. at 404.
12. Redevelopment and Port Authority
Complimentary and Competing
“Public Interests”
• Examples
– Industrial Development Projects
– Hoboken Waterfront
– Jersey City Redevelopment
– Portfields Initiatives
13. Industrial Development Projects
The Port Authority has a number of important industrial properties in
the New York and New Jersey region. These include the Industrial
Park at Elizabeth.
14. Industrial Development Projects
Statute
• Industrial development project or facility" means
– any equipment, improvements, structure or facility or any land,
and any building, structure, facility or other improvement
thereon, or any combination thereof, and all real and personal
property,
– located within…a municipality in the New Jersey portion of the
port district which qualified for State aid…
– which shall be considered suitable by the port authority for
manufacturing, research, non-retail commercial or industrial
purposes within an industrial park, or for purposes of
warehousing or consumer and supporting services directly
related to any of the foregoing or to any other port authority
project or facility. N.J.S.A. 32:1-35.73.
15. Industrial Development
Projects Statute
• “The port authority and the city, town, township or village
in which any industrial development project or facility is
to be located and for whose benefit such project or
facility is undertaken are hereby authorized and
empowered to enter into an agreement or agreements to
provide which local laws, resolutions, ordinances, rules
and regulations, if any, of such city, town, township or
village affecting any industrial development project or
facility shall apply to such project or facility. All other
existing local laws, resolutions, ordinances or rules and
regulations not provided for in such agreement shall be
applicable to such industrial development projects or
facilities.” N.J.S.A. 32:1-35.83.
16. Industrial Development
Projects Statute
• “So long as any facility constituting a portion of any
industrial development project or facility shall be owned,
controlled or operated by the port authority, no public
authority, agency, commission or municipality of either or
both of the two states shall have jurisdiction over such
project or facility nor shall any such public authority,
agency, commission or municipality have any jurisdiction
over the terms or method of effectuation of all or any
portion thereof by the port authority.” N.J.S.A. 32:1-
35.83.
17. Hoboken Statute
• Southern Waterfront Project
• “The Port Authority is authorized and empowered, as
limited by sections 6 and 7 of this 1984 amendatory and
supplementary act, to effect, establish, acquire,
construct, rehabilitate, improve, maintain or operate one
waterfront development project in the State of New York
and one waterfront development project in the State of
New Jersey;” N.J.S.A. 32:1-35.36e.
18. Hoboken Statute
• “A waterfront development project in the city of Hoboken
shall be located on all that certain piece, parcel or tract
of land, situate, lying and being in the city of Hoboken, in
the county of Hudson and the State of New Jersey, more
particularly bounded and described as follows …”
N.J.S.A. 32:1-35.36f.
22. Hoboken Statute
• “The undertaking by the Port Authority of any waterfront
development project in the State of New York or the
State of New Jersey, or of any alternative to either of the
two projects authorized pursuant to section 5 of
P.L.1983, c. 9 (C. 32.1-35.36f) and by section 5 of this
1984 amendatory and supplementary act, shall be
subject to the prior express approval of the project by the
city, county, town or village of the State of New York in
which the project is to be located, or by the city, county,
town, borough or township of the State of New Jersey in
which the project is to be located.”
N.J.S.A. 32:1-35.36m.
23. Hoboken Process –
“Public Interest”
• Provided for considerable local input to determining what
was public interest
– City adopted a resolution agreeing in principal to
enter a development agreement with the Port
Authority.
– Adopted a Redevelopment Plan setting forth the
City’s objectives for the Project.
– Negotiated a detailed redevelopment agreement
called the “Municipal Development Agreement, and a
Lease” pursuant to which the Project would be
developed.
24. Tumpson v. Farina
• Controversy:
The City approved the MDA & Lease, a Petition for
Referendum, and when it did so, it acted by Ordinance.
A Petition was filed seeking to put the question of
whether the MDA & Lease should be adopted to an up or
down vote.
25. Tumpson v. Farina
• Decision:
The Trial Court determined that the matter was not
appropriate for decision on a referendum. Ultimately, the
Supreme Court of NJ determined that it was, saying:
– “we are unable to conclude that the Legislature
considered or addressed the referendum issue [in the
Hoboken Statute]”
Tumpson v. Farina, 120 N.J. 55, 57 (1990).
26. Tumpson v. Farina
• Court explained its rationale:
– “Legislation enables the Port Authority to participate
in the Hoboken redevelopment project with the
express approval of the City.”
– By incorporating the Compact of 1921, which created
the Port Authority, see N.J.S.A. 32:1-35.36m, the
Legislature conditioned such participation solely on
the granting of municipal approval in the form of a
resolution of consent. N.J.S.A. 32:1-23.
Notwithstanding the incorporated provisions of
N.J.S.A. 32:1-23, the municipality proceeded by the
ordinance method, thereby insuring broader and fuller
public participation in the process of giving consent to
the Port Authority's role.
27. Tumpson v. Farina
• Rationale:
– “In addition, although the city had on May 3, 1989,
adopted a resolution agreeing in principle to enter a
development agreement with the Port Authority,
neither the Port Authority nor the State of New Jersey,
through the Attorney General, has asserted that the
provision for a referendum on this ordinance will be
an unwarranted infringement on the bi-state agency's
role. See Eastern Paralyzed Veterans Assn, Inc. v.
City of Camden, 111 N.J. 389.
29. Jersey City: Newport and
Port Authority
• Port Authority – interested in acquiring property
in the middle of Newport Redevelopment Plan
Area.
• Collision Course – or Opportunity for advancing
both public interests?
30. Jersey City: Newport and
Port Authority
• Expansion of service facilities around Holland
Tunnel and improvements to Holland Tunnel
Vent Shaft: a case of “substantial duties or
responsibilities on that Authority”?
• JCRA and Redeveloper also implementing
significant public purpose: redevelopment of
blighted waterfront with mixed use project.
31. PATH v. J.C. North Shore
Associates, et al.
• Controversy:
– PATH filed a condemnation action to acquire land
acquired by the Redeveloper of the Newport
Redevelopment Project to construct a ventilation shaft
near the Pavonia Avenue Station.
– PATH acknowledged that the location of the structure
would be “at a central point within the first phase of
the redevelopment project.”
32. PATH v. J.C. North Shore
Associates, et al.
• JCRA sought to intervene in the condemnation action
and filed a separate condemnation action.
• Settlement was reached by parties.
33. PATH v. J.C. North Shore
Associates, et al.
• Settlement:
– Property transferred to PATH for ventilation shaft
– JCRA agreed to exclude the portion of its
condemnation action the property which was the
subject of the PATH taking.
– Parties agreed on changes to the design of the
Ventilation Shaft.
35. PATH & Port Authority v. Newport City
Development Company, et al.
• Controversy:
– Port Authority sought to condemn part of Jersey
City’s Newport Redevelopment Plan Area for
improvement to maintenance and service facilities
for Port Authority.
– City objected due to impact on redevelopment
project.
36. PATH & Port Authority v. Newport City
Development Company, et al.
• Preliminary Decision:
– On the Order to Show Cause return date, Judge
Humphreys determined that “possession will be
stayed pending further order of the Court” and
ordered parties to “intensively explore alternate
proposals to the condemnation of these parcels.”
• Ultimate Resolution:
– The parties negotiated terms to satisfy needs of PA
and City
37. Port Authority Trans-Hudson Corp. v.
Newport City Development Company, et al.
• Controversy:
– PATH & Port Authority filed condemnation to acquire
certain land acquired by the Newport Redeveloper on
land adjacent to the PATH’s Newport Station and the
Holland Tunnel facilities of Port Authority.
– The JCRA sought and was granted intervention.
– The acquisition was opposed, based on its potential
to disrupt the Redevelopment Project.
38. Port Authority Trans-Hudson Corp. v.
Newport City Development Company, et al.
• Ultimate Resolution:
– PATH agreed to make improvements to the Pavonia
Avenue PATH Station (Newport Station).
– The redeveloper agreed to contribute $1M to the
costs of improvement.
39. Port Authority Trans-Hudson Corp. v.
Newport City Development Company, et al.
• At time of reopening of rehabilitated station, Port
Authority Executive Director Joseph J. Seymour said:
"The completion of this $19 million rehabilitation
project is another example of the Port Authority’s
dedicated effort to rebuild the area’s infrastructure
and revitalizing the region’s economy."
41. Portfields Initiative
• Program of PA and NJ EDA
– Helps communities, private developers, and others
transform underutilized and brownfield sites into
productive warehousing and distribution centers.
– EDA has power to undertake “projects” with
considerable tools to accomplish that purpose, with
consent of local municipality. N.J.S.A. 34:1B-5d.
42. Portfields Initiative
These centers will support emerging market opportunities
for new ocean and air freight-related warehousing and
distribution operations.
