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JOSEPH B. FIORENZO, ESQ. (021421980)
SILLS CUMMIS & GROSS P.C.
The Legal Center
One Riverfront Plaza
Newark, New Jersey 07102
(973) 643-7000
Attorneys for Plaintiff
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
8 ERIE ST. JC LLC

Civil Action No.

Plaintiff,
COMPLAINT AND

v.
CITY OF JERSEY CITY, JERSEY CITY
COUNCIL, and JERSEY CITY
PLANNING BOARD and JERSEY CITY
REDEVELOPMENT AGENCY,

DEMAND FOR JURY TRIAL

Defendants.
Plaintiff 8 Erie St. JC LLC (“Plaintiff”) complains and alleges as follows against
Defendants City of Jersey City (“City”), Jersey City Council (“Council”), Jersey City Planning
Board (“Board”), and Jersey City Redevelopment Agency (“JCRA”) (collectively, “Defendants”):
THE NATURE OF THE ACTION
Faced with a neighborhood repeatedly declared to be blighted and in need of
redevelopment, the City recognized an urgent need to recruit capital investment, and created
redevelopment plans to entice developers to commit resources for the revitalization of properties
falling into disrepair. Plaintiff heeded the City’s call and submitted the winning bid to redevelop
the area located at 8 Erie Street, Jersey City, New Jersey, known as City Block 11403, Lot 29
(formerly Block 242, Lot 20A) on the Tax Map for the City of Jersey City (the “Property”). The
redevelopment included renovation of the deteriorating century-old police station into sixteen

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modern lofts and multiple spaces for retail and restaurants. As set forth in detail below, in entering
the Redevelopment Agreement, Plaintiff was induced to commit years of effort and nearly $10
million in expenses rehabilitating the Property and improving the area. In exchange, the City
promised that, if successful, Plaintiff had the opportunity to benefit from its efforts by leasing at
fair market rates based on demand, including to major commercial tenants. But after the parties
entered into the Redevelopment Agreement, and Plaintiff and the City put their commitments in
writing, Mayor Steven M. Fulop (the “Mayor” or “Fulop”) engaged in a blatantly illegal scheme
to change the terms of the deal purely for his own political benefit. In what amounts to a flagrant
bait-and-switch, in violation of Plaintiff’s rights, the City persuaded Plaintiff to accept the risk of
investing to improve blighted areas in exchange for opportunities for major economic
development, and then, after the resources were expended and the rehabilitation nearly complete,
the City unilaterally restricted Plaintiff’s ability to lease to the most economically productive
tenants.
Specifically, the Mayor, who was then widely-viewed as a front-runner for the
upcoming election for governor, concluded from campaign data that his political base was hostile
to large out-of-state corporations and wanted protectionist measures to shield local “mom and pop”
business from competition. While Plaintiff was fulfilling its redevelopment obligations by
renovating the Property and substantially contributing to the revitalization of the City’s Downtown
area, the Mayor was executing on his plan to generate campaign publicity by attacking, in op-eds
and interviews, “corporate giants” who compete with New Jersey’s small business owners. At the
Mayor’s urging, the Council, a majority of which was filled with Fulop-loyalists, hastily drafted
and adopted the protectionist ordinance to use as a political prop in Fulop’s campaign. The
ordinance unilaterally altered the majority of the Redevelopment Plans—including Plaintiff’s—to

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prohibit leasing to corporate chains or “formula” businesses. Despite the fact that the City sought
to insert this new condition into Plaintiff’s Redevelopment Agreement, Plaintiff was not even
provided notice of this drastic attempt to limit its economic rights.
In an attempt to evade public scrutiny, the Defendants sought to apply the formula
business restrictions on soft targets unlikely to fight back, namely, property owners least likely to
bear the cost of challenging the legality of the ordinances. These soft targets included only certain
property owners in redevelopment areas in the downtown area.

Notably absent from the

restrictions are the Newport, Harborside, and Holland Tunnel areas – all of which contain
numerous formula businesses.
Revealing just how far Fulop was willing to depart from the interest of Jersey City
residents for his own personal gain, as soon as Fulop declined consideration of statewide office,
he reversed his position on “formula” businesses, reasoning it would reduce the supply of
investment capital in Jersey City. He attempted—unsuccessfully—to reverse the amendment to
the Redevelopment Plans barring national corporate businesses from leasing in redevelopment
areas, correctly observing that the City’s passage of the same ordinance he had rushed through as
an instrument for his campaign was, in fact, unconstitutional. This ordinance, which even its
sponsors now acknowledge to be illegal, remains on the books today.
Plaintiff brings this action against Defendants for violation of its constitutional
rights, state law, breach of the implied covenant of good faith and fair dealing, and fundamental
fairness as a result of Defendants’ unlawful restriction on interstate commerce and consequential
damage to the value of the Plaintiff’s Property. The City’s after-the-fact injection of a new
condition into the Redevelopment Agreement, precluding Plaintiff from entering into leases with
national corporate business, has deprived Plaintiff of the benefit of its bargain with the City, and

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artificially and significantly reduced the value of the Property. The ordinances were not supported
by any evidence, do not support any legitimate state interest, and were solely enacted so that the
Mayor could enhance his own image by protecting local businesses from competitive forces.
THE PARTIES
Plaintiff is a New Jersey limited liability company with its principal place of
business located in Jersey City, New Jersey. Plaintiff owns the Property, which consists of sixteen
(16) residential units with ground and basement level commercial space.

Prior to the

redevelopment of the Property, it housed the first New Jersey and New York Telephone Company
switching station, first built in the late 1800s, and later served as the home of the City’s Police
Department.
Defendant City is a municipal corporation organized under the laws of the State of
New Jersey and has an address of City Hall, 280 Grove Street, Jersey City, New Jersey 07302.
Defendant Council is the governing body of the City as organized under the laws
of the State of New Jersey and has an address of City Hall, 280 Grove Street, Jersey City, New
Jersey 07302.
Defendant Planning Board is the planning board of the City organized under the
laws of the State of New Jersey and has an address of City Hall, 280 Grove Street, Jersey City,
New Jersey 07302.
Defendant JCRA is a body corporate and politic of the City as organized under the
laws of the State of New Jersey and has an address at 30 Montgomery Street, 9th Floor, Jersey City,
New Jersey 07302.

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JURISDICTION
This Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question)
and 28 U.S.C. § 1343 (civil rights).
This action is brought pursuant to 42 U.S.C. §§ 1983 and 1988 and 28 U.S.C. §§
2201(c) and 2202.
The Court has jurisdiction over Plaintiff’s New Jersey state law claims pursuant to
28 U.S.C. § 1367 (supplemental jurisdiction) because the state law claims form part of the same
case or controversy and are so related to the claims in the action within such original jurisdiction.
VENUE
Venue is proper in this District under 28 U.S.C. §§ 1391(b). Venue is proper
because Defendants are located in this judicial district. Additionally, a substantial part of the
events or omissions giving rise to the claim occurred in this judicial district.
BACKGROUND FACTS
a.

The City Selects Plaintiff To Revitalize The Area, Which Had Fallen Into
Disrepair And Had Been Designated As In Need Of Redevelopment
Prior to Plaintiff’s efforts as redeveloper, the Property, formerly a police station,

sat vacant and deteriorating.
On or about April 26, 2011, the Property was designated as “an area in need of
redevelopment” pursuant to the New Jersey Local Housing and Redevelopment Law (“LHRL”),
N.J.S.A. 40A:12A-1, et seq., by Council resolution.
On or about May 31, 2011, the Council adopted the 8 Erie Street Redevelopment
Plan (the “Redevelopment Plan”) by ordinance. The JCRA issued a Request for Proposals from
potential redevelopers for projects in accordance with the Redevelopment Plan.

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The existing Redevelopment Plan set forth no restrictions, other than those
contained in the local zoning ordinances, on the corporate size or residency of potential tenants.
Plaintiff was induced to apply to develop the Property because the Redevelopment Plan provided
for significant potential value in leasing the renovated Property to a broad base of commercial
tenants, in a market with with substantial demand for renovated ground-floor spaces, including
from national corporate businesses.
Plaintiff submitted an application and, on or about January 17, 2012, the JCRA
awarded Plaintiff the designation as the redeveloper for the Property by resolution, which
resolution was amended on or about March 20, 2012.
On or about July 20, 2012, the Plaintiff and the JCRA entered into the
Redevelopment Agreement (the “Redevelopment Agreement”), which contemplated the
construction and management of the Property pursuant to the existing Redevelopment Plan. Like
the Redevelopment Plan, the Redevelopment Agreement did not have any restriction on renting to
commercial formula business tenants.
b.

Through Plaintiff’s Substantial Efforts, And Nearly $10 Million In
Investment, Plaintiff Revitalized The Area Into Modern, Attractive Retail
Spaces Which Generate Significant Commercial Demand
As set forth in more detail below, during the execution of the Redevelopment

Agreement, Plaintiff agreed to bear the risk of substantial costs and submit to an onerous regulation
and approval process based on its calculation of the expected economic benefit when the project
was finished and leased.
Pursuant to the Redevelopment Agreement, Plaintiff undertook to redevelop and
convert the historic three (3) story building which formerly housed the Jersey City Police
Department into approximately sixteen (16) residential rental units located on the second and third
floor and commercial space on the ground floor and basement level.
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Pursuant to the Redevelopment Agreement, Plaintiff purchased the Property for
$1,950,000 and agreed to pay all costs incurred by the JCRA in implementing the Redevelopment
Agreement, including, but not limited to, (i) all costs of correcting or eliminating any objections
to title, (ii) legal fees, survey costs, engineering costs, environmental costs, title search and
premium fees, appraisal fees, insurance costs, and other professional fees and costs, (iii) recording
fees and real estate taxes, including all taxes and dues from the JCRA, and (iv) all out-of-pocket
third party costs and expenses incurred by the JCRA related to the Property, such as maintenance,
repairs, and security.
Following its acquisition of the Property and execution of the Redevelopment
Agreement, and in reliance on same, Plaintiff spent over $7,000,000 to develop the Property, over
and above the purchase price.
Because the Property is located in an Historic District of the City, Plaintiff was
further bound by the Jersey City Land Development Ordinance, Chapter 345.71: Historic
Preservation Standard, which imposes certain constraints on the Property.
In undertaking the rehabilitation and restoration of the Property, Plaintiff was
required to take every reasonable effort to provide a use for the Property that required minimal
alteration of the structure on the Property due to the Historic Preservation Standard.
In addition, Plaintiff was further restricted by having to ensure that all doors and
entries harmonize with the doors and entries of historical significance in the surrounding
environment. In the event that Plaintiff renovates the Property further, it must continue to adhere
to the restrictions in the Historic Preservation Standard. While the Standard imposed many
resource-intensive burdens upon Plaintiff, at the time of the Redevelopment Agreement Plaintiff

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understood these requirements and was able to factor them into the economic analysis. Notably,
the Standard nowhere precluded Plaintiff from leasing to “formulaic” businesses.
On June 19, 2015, the City issued Plaintiff a Certificate of Occupancy for the
Property – after nearly three years of Plaintiff’s effort of obtaining regulatory approvals, investing
in the renovation, and completing the project, in accord with Plaintiff’s commitment in the
Redevelopment Agreement. Plaintiff was ready to open the doors to tenants of the Property and
recoup some of its investment and hard work in helping to grow the economic prospects of the
neighborhood. Notwithstanding all of Plaintiff’s efforts, the Defendants, unbeknownst to Plaintiff,
adopted ordinances restricting Plaintiff’s ability to lease its commercial space to chain and
franchise businesses a month before the Certificate of Occupancy was issued.
c.

The Mayor Forces Through A Formula Business Restriction For Blatant
Political Gain, Then Immediately Backtracks As Soon As He Withdraws From
Consideration For State-Wide Office
What Plaintiff did not know as it was preparing to lease its newly-rehabilitated

Property was that the Mayor had hurriedly forced new legislation through the City Council—with
no notice to Plaintiff—that would drastically limit Plaintiff’s ability to benefit from its efforts.
As of early 2015, the Mayor had spent the last two years jockeying for
endorsements from political leaders for a gubernatorial campaign to succeed then-Governor Chris
Christie and fundraising millions of dollars for what was expected to be a contentious primary
contest. In the media, he was widely viewed as the front-runner for the Democratic nomination.
At the time Fulop was planning entry into the election, some communities outside
Jersey City, which Fulop needed for political support, favored protectionist policies for “mom and
pop” stores to prevent competition from chains. Fulop pressured senior Jersey City planning
officials to draft a ban on chain stores, which he could use as a political prop to sell state-wide
voters on his candidacy. When City officials began reviewing the issue, particularly in light of
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successful legal challenges to such provisions, Fulop demanded they stop delaying and strongarmed them into hastily drafting an ordinance for his review.
The Planning Department believed that restricting formula businesses in the City’s
downtown area was unnecessary as the area was not facing an influx of chain stores or franchise
stores nor was the community’s character in any way threatened. Indeed, all the development and
redevelopment in the downtown area had been focused on making the area more business and
investment friendly. They did not believe the rush to draft the ordinance without the proper review,
simply to benefit Fulop’s state-wide political ambitions, was in the best interests of the City’s
development needs.
Upon information and belief, the Council, pursuant to N.J.S.A. 40:55D-64, sought
the recommendation of the Planning Board related to the inclusion of a definition for “formula
businesses” in the Land Development Ordinance, Chapter 345 of the Code of the City of Jersey
City (the “Land Development Ordinance”).
On April 7, 2015, the Planning Board voted to recommend that the Council amend
the Definitions of the Land Development Ordinance to add a definition for “formula businesses.”
The Planning Board made its recommendation solely at the insistence of the Mayor and did not
otherwise engage in any meaningful or substantive review as to whether such an amendment
should be recommended to the Council. Indeed, in its haste to appease the Mayor and acquiesce
to his demands, the Planning Board did not conduct, commission, or otherwise complete any
studies, reports, examinations, or surveys that supported the inclusion of a definition for formula
business in the Land Ordinance.
Notwithstanding the Planning Department’s disagreement over the need for a
formula business restriction, the Mayor’s office, exerting its political influence, forced the

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Planning Department to draft a formula business definition to be included in the City’s Land
Ordinance and subsequently inserted as a restriction on certain redevelopment plans. Such
“formula business” restrictions would effectively bar national chain stores and franchises from
operating in Jersey City in designated areas with the purpose and effect of protecting local business
and deter formula businesses from conducting business in Jersey City. These actions by the Mayor,
pushed by his public relations representatives, were engaged in for political purposes in an effort
to prop up his nascent efforts to run for Governor.
In order to accomplish the Mayor’s demand, the Defendants structured the
restriction on formula businesses in such a manner that it would focus on soft targets, which would
be property owners in the downtown area that were subject to redevelopment plans. The
Defendants, knowing that the public would not support such restrictions, engaged in legislative
maneuvering whereby they would enact two separate ordinances that would serve a singular
purpose – to restrict formula businesses. This structure allowed the Defendants to avoid giving
personal notice to any of the property owners affected, ensuring that opposition would be limited.
The Mayor’s demand for formula business restrictions lacked any rational basis to
the needs of the City. Instead, the desired formula business restriction was designed solely as a
publicity stunt to gain the Mayor media coverage as he contemplated running for Governor.
Tellingly, once the Mayor announced that he would not run for Governor, he made
an abrupt pivot and spearheaded an effort to repeal the formula business restrictions because it
would diminish investment in the City. By 2017, Fulop was asserting that the very same ordinance
he had demanded be drafted immediately without full planning review was, in fact, adopted in a
procedurally defective manner and unable to withstand constitutional challenge.

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The Council declined to vote to repeal the restrictions in 2017, acknowledging the
constitutional vulnerability, but leaving it for the courts to decide whether the restriction is legal
and expressing its intent that the ordinances remain to protect the local “mom and pop” stores.
d.

The City Adopts Ordinances Unilaterally Altering Plaintiff’s Redevelopment
Agreement, Injecting New Conditions Into The Contract That Illegally
Restricted The Benefit Of Plaintiff’s Bargain
The Defendants first adopted City Ordinance 15.052 Defining “formula

Businesses.” The definition of “formula business” (adopted by the Council in Ordinance 15.052)
states:
A type of business establishment that is contractually obligated to maintain two or
more standardized characteristics such as: array of merchandise, menu items,
façade design, décor, color scheme, uniform apparel, signage, trademark, or
servicemark; and where 10 or more other establishments that are similarly
contractually obligated to the same corporate entity are in operation within 300
miles of Jersey City.
(1)
(2)

(3)
(4)
(5)

Standardized array of merchandise and menu items shall be defined as 50%
or more of items from a single distributor bearing uniform markings.
Trademark and Servicemark shall be defined as a word, phrase, symbol or
design, or a combination of words, phrases, symbols or designs that
identifies and distinguishes the source of the goods or service from one
party from those of others.
Décor shall be defined as the style of interior furnishings, which may
include but is not limited to, style of furniture, wall coverings or permanent
fixtures.
Color Scheme shall be defined as selection of colors used throughout, such
as on the furnishings, permanent fixtures, and wall coverings, or as used on
the façade.
Uniform Apparel shall be defined as standardized items of clothing
including but not limited to standardized aprons, pants, shirts, smocks or
dresses, hats, and pins (other than name tags) as well as standardized colors
of clothing.

The Planning Board’s recommendation to include a definition for formula
businesses in the Land Ordinance was the first step in the ultimate goal of restricting formula
businesses in certain soft targets in the downtown area.

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On May 13, 2015, the Council, rubber stamping the Planning Board’s
recommendation, adopted City Ordinance 15.052, titled “Ordinance of the Municipal Council of
the City of Jersey City Adopting an Amendment to the Land Development Ordinance Adding a
Definition for Formula Businesses” (“Ordinance 15.052”).
While Ordinance 15.052 was purportedly adopted because formula businesses
“may detract from established community character and instill a sense of sameness to [Jersey
City’s] commercial areas causing neighborhoods to feel less unique,” the actual purpose was to
restrict “formula businesses” in various downtown redevelopment plans to protect local businesses
from economic competition, particularly from out-of-state corporations.
The Council did not rely on any studies, reports, examinations, or surveys in its
adoption of Ordinance 15.052.
Plaintiff did not receive any personal notice of the hearings for Ordinance 15.052.
The Council next adopted City Ordinance 15.053 to amend certain Redevelopment
Plans to add formula business restrictions.
Upon information and belief, the Council, pursuant to N.J.S.A. 40:55D-64, sought
the recommendation of the Planning Board related to the inclusion of a definition for “formula
businesses” in the Land Development Ordinance.
On April 7, 2015, again at the demand of the Mayor, the Planning Board voted to
recommend that the Council amend certain redevelopment plans to add restrictions for “formula
businesses.”
The proposed restriction, which would be adopted in Ordinance 15.053, inserted
the following language into the permitted uses sections of certain Redevelopment Plans, including,
but not limited to, 8 Erie Redevelopment Plan, which includes Plaintiff’s Property:

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All commercial retail areas within each structure or within a single tax lot shall
limit formula business establishments, as defined by the Land Development
Ordinance, to a maximum of 30% of ground floor gross leasable commercial area.
For the purposes of this area restriction, the formula business definition shall apply
to the following uses, whether functioning as a principal or accessory use:
1.
2.
3.
4.

Retail sales of goods and services.
Restaurants, all categories.
Bars.
Financial service facilities and banks.

Grocery stores greater than 15,000 square feet may exceed 30% of gross leasable
commercial area, but shall be the only formula business within such structure or lot.
During the hearing before the Planning Board on April 7, 2015, planning board
officials stated that the restriction on formula businesses contained in Ordinance 15.053 would
only affect certain redevelopment areas downtown and “the neighborhood-commercial district is
unaffected and any other regular zone district that permits retail is unaffected.”
Further, it was admitted that the formula business restriction only applies to
essentially soft targets located in the downtown area. In fact, the restriction was so arbitrary that
it applied to certain sides of a street, but not the other.
The formula business restriction was designed specifically to “provide for a little
extra room for nonformula business, sort of more local, kind of one-off business to find space in
Jersey City.”
In voting in favor of the restriction of formula business, the Planning Board wanted
to “protect[] some of the neighborhoods within Jersey City and keep them, all local people, to do
things.”
The Planning Board recommended the adoption of “formula business” restrictions
for certain downtown redevelopment areas solely at the request of the Mayor and did not otherwise
engage in any meaningful or substantive review as to whether such an amendment should be
recommended to the Council.
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No studies, reports, examinations, or surveys were completed that support the
restriction of formula businesses in certain redevelopment plans. Instead, the restrictions were
proposed on certain redevelopment plans because the Defendants viewed these areas as the softest
targets. The formula business restriction was intentionally left out of other redevelopment plans
in areas the Defendants knew would challenge it, such as the Newport, Harborside, and Holland
Tunnel areas.
On May 13, 2015, the Council adopted City Ordinance 15.053, titled “Ordinance
of the Municipal Council of the City of Jersey City Adopting Amendments to Various
Redevelopment Plans to Add Formula Business Restrictions” (“Ordinance 15.053”).
During the hearing before the Council on May 13, 2015, not a single member of
the public spoke in favor of the proposed restriction of formula businesses.
The Council did not rely on any studies, reports, examinations, or surveys in the
adoption of Ordinance 15.053.
The primary purpose in adopting Ordinance 15.053 was to protect local businesses
and to provide publicity to the Mayor who was considering running for Governor of New Jersey.
Ordinance 15.053 was further adopted to provide publicity to the Mayor, who was
considering running for Governor at the time the ordinance was passed.
Plaintiff did not receive any personal notice of any hearings regarding Ordinance
15.053.

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e.

Ordinance 15.053 Has Been Selectively Applied To Plaintiff’s Detriment.
In or around early 2017, the City permitted a formula business donut shop to open

in redevelopment area that was subject to the formula business restrictions contained in Ordinance
15.053.
Notwithstanding the fact that the donut shop fit every criteria for a formula business
in Ordinance 15.052 and Ordinance 15.053, the Defendants permitted the donut shop to open
because it was labelled as operating as a factory.
Ordinance 15.053 does not exclude formula business that operate as a factory.
The Defendants have selectively enforced the formula business restriction for their
own benefit and to Plaintiff’s detriment.
f.

Plaintiff Has Been Prohibited From Leasing Commercial Space To Ready,
Willing, And Able Tenants Because Of Ordinance 15.053.
Plaintiff owns the Property, which includes ground floor, commercial retail space.
Currently, Plaintiff has sought out and obtained an economically advantageous

proposal from a prospective formula business tenant.
The prospective tenant is, pursuant to Ordinance 15.053, defined as a formula
business and is thus prohibited from leasing Plaintiff’s Property.
The prospective commercial tenant would be the first and only formula business of
its name in Jersey City.
To date, no other prospective commercial tenant has made an offer to rent
Plaintiff’s Property.
Further, the value of Plaintiff’s Property has been significantly reduced by
Ordinance 15.052 and Ordinance 15.053.

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COUNT I
42 U.S.C. § 1983
VIOLATION OF THE COMMERCE CLAUSE OF THE U.S. CONSTITUTION
Plaintiff repeats and reiterates each of the aforesaid allegations as if set forth
verbatim herein.
42 U.S.C. § 1983, provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable.
Article I, Section 8, Clause 3 of the United States Constitution states: “[The
Congress shall have Power] To regulate Commerce with foreign Nations and among the several
States, and with the Indian Tribes.”
The Defendants, in adopting Ordinance 15.052 and Ordinance 15.053, have
unconstitutionally discriminated against interstate commerce by severely limiting or effectively
prohibiting formula businesses from operating within certain Redevelopment Plans in downtown
Jersey City.
The Defendants adopted Ordinance 15.052 and Ordinance 15.053 for the purpose
of favoring in-state economic interests over out-of-state interests and as a means of economic
protectionism.
Because Ordinance 15.052 and Ordinance 15.053 discriminate against interstate
commerce on their face and/or have the direct effect of discriminating against interstate commerce,
they are “per se” invalid and must be reviewed under strict scrutiny.

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Alternatively, even if not facially discriminatory, Ordinance 15.052 and Ordinance
15.053 have the effect of disproportionally burdening interstate commerce for the benefit of local,
intrastate businesses.
As a direct and proximate cause of Defendants’ violation of Article I, Section 8,
Clause 3 of the United States Constitution, Plaintiff has suffered, and will continue to suffer,
damages.
WHEREFORE, Plaintiff demands Judgment against Defendants in Plaintiff’s favor for the
following relief:
A.

Declaring that Ordinance 15.052 and Ordinance 15.053 are unconstitutional and

are of no force or effect;
B.

Compensatory damages;

C.

Attorneys’ fees and costs of suit;

D.

Interest;

E.

Punitive damages;

F.

Such other and further relief as the Court may deem equitable and just.
COUNT II
42 U.S.C. § 1983

VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
Plaintiff repeats and reiterates each of the aforesaid allegations as if set forth
verbatim herein.
42 U.S.C. § 1983, provides:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
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equity, or other proper proceeding for redress, except that in any action brought
against a judicial officer for an act or omission taken in such officer’s judicial
capacity, injunctive relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable.
Amendment XIV to the Constitution of the United States provides:
All persons born or naturalized in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they reside. No
state shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any state deprive any person of life,
liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
Defendants have denied Plaintiff the equal protection of the law to which they are
entitled.
Ordinance 15.052 and Ordinance 15.053 are arbitrary, capricious, and unreasonable
as they lack a substantial relationship to a legitimate goal to be accomplished.
Defendants cannot establish a rational basis for allowing locally-owned stores to
operate unrestricted in certain Redevelopment Plans but prohibit and/or limit formula businesses
to uneconomic sizes.
The purpose and ultimate effect of Ordinance 15.052 and Ordinance 15.053 are
economic protectionism.
Indeed, various formula businesses already occupy the City’s downtown area.
In fact, in or around early 2017, the city permitted a formula business donut shop
to open in a restricted area for no reason other than that the city sought to selectively enforce
Ordinance 15.052 and Ordinance 15.053.
Defendants’ selective enforcement of Ordinance 15.052 and Ordinance 15.053
between similarly situated individuals, namely property owners seeking to rent commercial space
to formula businesses, follows no justifiable standard.

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As a direct and proximate cause of Defendants’ violation of Plaintiff’s civil rights,
Plaintiff has suffered, and will continue to suffer, damages.
Pursuant to 42 U.S.C. § 1988, in this action to enforce a provision of 42 U.S.C. §
1983, Plaintiff is entitled to a reasonable attorneys’ fee, costs, and fees in connection with the
retention of expert witnesses.
WHEREFORE, Plaintiff demands Judgment against Defendants in Plaintiff’s favor for the
following relief:
A.

Declaring that Ordinance 15.052 and Ordinance 15.053 are unconstitutional and

are of no force or effect;
B.

Compensatory damages;

C.

Attorneys’ fees and costs of suit;

D.

Interest;

E.

Punitive damages;

F.

Such other and further relief as the Court may deem equitable and just.
COUNT III
VIOLATION OF N.J.S.A. 40:55D-62.1
Plaintiff repeats and reiterates each of the aforesaid allegations as if set forth

verbatim herein.
Pursuant to N.J.S.A. 40:55D-62.1, the City is obligated to provide notice of a
hearing on an “amendment to the zoning ordinance proposing a change to the classification or
boundaries of a zoning district” with such notice given at least ten (10) days prior to the hearing
by the municipal clerk to, inter alia, all owners of real property located within the proposed zoning
change.

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Pursuant to N.J.S.A. 40:55D-62.1, notices required under this provision must be
served on the property owner or mailed by certified and regular mail.
The Redevelopment Plan, and any amendments thereto, is the zoning for the
Property and therefore the adoption of the Ordinance 15.052 and Ordinance 15.053 should be in
accordance with the requirements of N.J.S.A. 40:55D-62.1.
The Defendants adopted Ordinance 15.052 and Ordinance 15.053 in a concerted
and intentional effort to circumvent the notice requirements under the applicable statute.
Ordinance 15.052 and Ordinance 15.053, when read together, effectively resulted
in a zoning change that necessitated individual notice to all property owners of the affected areas,
including Plaintiff.
Plaintiff did not receive any notice of the hearings related to Ordinance 15.052 or
Ordinance 15.053.
As a result of Defendants intentional actions to avoid giving individual notice to
property owners in the areas affected by Ordinance 15.052 and Ordinance 15.053, Plaintiff has
been deprived of its right to due process.
WHEREFORE, Plaintiff demands Judgment against Defendants in Plaintiff’s favor for the
following relief:
A.

Declaring that Ordinance 15.052 and Ordinance 15.053 are unconstitutional and

are of no force or effect;
B.

Compensatory damages;

C.

Attorneys’ fees and costs of suit;

D.

Interest;

E.

Punitive damages;

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F.

Such other and further relief as the Court may deem equitable and just.
COUNT IV
INVALID ZONING ORDINANCE
Plaintiff repeats and reiterates each of the aforesaid allegations as if set forth

verbatim herein.
The alleged purpose of Ordinance 15.052 and Ordinance 15.053 is to protect the
uniqueness of the City’s downtown area by restricting and/or prohibiting formula businesses.
Defendants adoption of Ordinance 15.052 and Ordinance 15.053 lacks a substantial
relation to the object being sought to be attained as numerous formula businesses already operate
in the City’s downtown neighborhood.
In fact, in or around early 2017, the city permitted a formula business donut shop
to open in a restricted area for no reason other than the city sought to selectively enforce Ordinance
15.052 and Ordinance 15.053.
Ordinance 15.052 and Ordinance 15.053 are not reasonably calculated to protect
the “uniqueness” of the City’s downtown neighborhood under the circumstances as it ignores
previously established formula businesses and provides no substantiation as to how formula
businesses negatively impact the City’s downtown area.
Because of the Defendants’ arbitrary, capricious, and unreasonable act in adopting
Ordinance 15.052 and Ordinance 15.053, Plaintiff has suffered, and will continue to suffer,
damages.
WHEREFORE, Plaintiff demands Judgment against Defendants in Plaintiff’s favor for the
following relief:
A.

Declaring that Ordinance 15.052 and Ordinance 15.053 are unconstitutional and

are of no force or effect;

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B.

Compensatory damages;

C.

Attorneys’ fees and costs of suit;

D.

Interest;

E.

Punitive damages;

F.

Such other and further relief as the Court may deem equitable and just.

COUNT V
VIOLATION OF DOCTRINE OF FUNDAMENTAL FAIRNESS
Plaintiff repeats and reiterates each of the aforesaid allegations as if set forth
verbatim herein.
New Jersey’s doctrine of fundamental fairness serves to protect citizens generally
against unjust and arbitrary governmental action, and specifically against governmental procedures
that tend to operate arbitrarily.
The doctrine of fundamental fairness is an augmentation of existing constitutional
protections or as an independent source of protection against state action.
The Council’s adoption of Ordinance 15.052 and Ordinance 15.053 was premised
on a desire by the Mayor to gain publicity for a possible run for Governor and has no rational basis
in the actual needs of Jersey City.
Further, these Ordinances operate to effectively oppress and deprive Plaintiff of its
ability to rent its Property to commercial tenants that qualify as formula businesses.
Further, the Defendant’s intentional structuring of Ordinance 15.052 and Ordinance
15.053 was designed to deny Plaintiff due process as it permitted Defendants to arbitrarily change
the zoning of Plaintiff’s Property without giving proper notice.

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Because of the Defendants’ arbitrary, capricious, and unreasonable act in adopting
Ordinance 15.053, Plaintiff has suffered, and will continue to suffer, damages.
WHEREFORE, Plaintiff demands Judgment against Defendants in Plaintiff’s favor for the
following relief:
A.

Declaring that Ordinance 15.052 and Ordinance 15.053 are unconstitutional and

are of no force or effect;
B.

Compensatory damages;

C.

Attorneys’ fees and costs of suit;

D.

Interest;

E.

Punitive damages;

F.

Such other and further relief as the Court may deem equitable and just.

COUNT VI
BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
Plaintiff repeats and reiterates each of the aforesaid allegations as if set forth
verbatim herein.
As the Redevelopment Agreement constitutes a valid and enforceable agreement
with Plaintiff, the City possesses a duty of good faith and fair dealing with respect to Plaintiff as
to all matters relating thereto.
City’s actions in adopting Ordinance 15.052 and Ordinance 15.053, without giving
Plaintiff proper notice of the hearings related to the same, and knowing that these Ordinances
would severely prejudice Plaintiff’s ability to rent commercial space in his Property, constitutes a
breach of the implied covenant of good faith and fair dealing with respect to Plaintiff.
Plaintiff has been deprived of the benefit of its bargain with the City as a result of
the breach. Specifically, as a result of the actions of the City, Plaintiff will be unable to rent

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commercial space in the Property to any tenant that qualifies as a formula business, and unless
injunctive relief is granted, Plaintiff also will lose a current prospective tenant that would qualify
as a formula business.
As a direct and proximate result of the City’s breach of the implied covenant of
good faith and fair dealing, Plaintiff has incurred, and continues to incur, damages.
WHEREFORE, Plaintiff demands Judgment against Defendants in Plaintiff’s favor for the
following relief:
A.

Declaring that Ordinance 15.052 and Ordinance 15.053 are unconstitutional and

are of no force or effect;
B.

Compensatory damages;

C.

Attorneys’ fees and costs of suit;

D.

Interest;

E.

Punitive damages;

F.

Such other and further relief as the Court may deem equitable and just.
COUNT VII
DECLARATORY AND INJUNCTIVE RELIEF
Plaintiff repeats and reiterates each of the aforesaid allegations as if set forth

verbatim herein.
Plaintiff brings this Count pursuant to 28 U.S.C. §§ 2201(a) and 2202 and Fed. R.
Civ. P. 57 for a declaratory judgment declaring and adjudging the rights and liabilities of the parties
with respect to the claims and controversies between and among the parties as set forth herein.
Pursuant to Fed. R. Civ. P. 65, Plaintiff also seeks entry of preliminary and permanent injunctive
relief to prevent it from suffering immediate and irreparable harm.

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An actual controversy exists between the parties with respect to the validity and
enforceability of Ordinance 15.052 and Ordinance 15.053.
Ordinance 15.052 and Ordinance 15.053 are invalid as they violate the U.S.
Constitution and/or State statutory law and was an arbitrary, capricious, and unreasonable zoning
ordinance.
Plaintiff is unable to engage prospective commercial tenants because of the illegal
restrictions imposed by Ordinance 15.052 and Ordinance 15.053, thus hindering its ability to
utilize its Property completely.
Moreover, the City’s unilateral adoption of an ordinance impairing Plaintiff’s
existing contract rights with the City violated the Contracts Clause of the United States
Constitution. The City’s action constitute a substantial impairment of the contractual relation
because it thwarted the contracting parties’ legitimate contractual expectations, including the
central benefit of Plaintiff’s bargain: to offer renovated space to corporate tenants at a rate
commensurate to the demand for the premises.
The rationale for the state action was Fulop’s personal political benefit, not any
legitimate public purpose. The impairment was neither reasonable nor necessary to further any
important public interest.
Plaintiff has no adequate remedy other than this action in order to avoid
Defendants’ unlawful discriminatory application of Ordinance 15.052 and Ordinance 15.053 to
similarly-situated persons.
Plaintiff will suffer immediate and irreparable harm if Ordinance 15.052 and
Ordinance 15.053 is not promptly declared invalid.

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WHEREFORE, Plaintiff demands Judgment against Defendants in Plaintiff’s favor for the
following relief:
A.

Declaring Ordinance 15.052 and Ordinance 15.053 are unconstitutional and are of

no force or effect;
B.

A preliminary and permanent injunction prohibiting the Defendants from
enforcement of Ordinance 15.052 and Ordinance 15.053;

C.

Costs; and

D.

Such other and further relief as the Court may deem equitable and just.

Dated: April 5, 2019

SILLS CUMMIS & GROSS P.C.
By:

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s/Joseph B. Fiorenzo
JOSEPH B. FIORENZO
One Riverfront Plaza
Newark, New Jersey 07102-5400
(973) 643-7000
Attorneys for Plaintiff

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JURY DEMAND
Pursuant to Rule 38 of the Federal Rules of Civil Procedure, Plaintiff demands a trial by
jury as to all issues so triable in this action.

Dated: April 5, 2019

SILLS CUMMIS & GROSS P.C.
By:

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6142971 v4

s/Joseph B. Fiorenzo
JOSEPH B. FIORENZO
One Riverfront Plaza
Newark, New Jersey 07102-5400
(973) 643-7000
Attorneys for Plaintiff

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LOCAL CIVIL RULE 11.2 CERTIFICATION
I, counsel of record for Plaintiff in the above-referenced matter, hereby certify that the
matter in controversy is not the subject of any other action pending in any court, or any pending
arbitration or administrative proceeding.
I certify under penalty of perjury that the foregoing is true and correct to the best of my
knowledge.

Dated: April 5, 2019

SILLS CUMMIS & GROSS P.C.
By:

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s/Joseph B. Fiorenzo
JOSEPH B. FIORENZO
One Riverfront Plaza
Newark, New Jersey 07102-5400
(973) 643-7000
Attorneys for Plaintiff

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CERTIFICATION OF NONARBITRABILITY
PURSUANT TO LOCAL RULE 201.1(d)
I, counsel of record for Plaintiff in the above-referenced matter, hereby certify that the
relief requested in this matter includes non-monetary relief, and the damages potentially
recoverable in this matter exceed the sum of $150,000, exclusive of interest and costs and of any
claim for punitive damages. Accordingly, Local Rule 201.1(d) does not apply to this matter.
I certify under penalty of perjury that the foregoing is true and correct to the best of my
knowledge.

Dated: April 5, 2019

SILLS CUMMIS & GROSS P.C.
By:

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6142971 v4

s/Joseph B. Fiorenzo
JOSEPH B. FIORENZO
One Riverfront Plaza
Newark, New Jersey 07102-5400
(973) 643-7000
Attorneys for Plaintiff