7/30/2007

A Reversal of Blight - Eminent domain and redevelopment: New Jersey Eminent Domain Blog, 7/2/07

By Bill Ward

Recent case law suggests that more than a few municipalities declare blight based on reports that cite statutory language without analysis of the property and the categories selected, and most importantly, without linking the criteria to the health, safety and welfare of the community. Many experts presented by the municipalities do not provide substantial, credible evidence to support a conclusion that the study area is in need of redevelopment. These cases and others are discussed in my recent article, Defining Blight: First Steps in the Redevelopment Process published in the New Jersey Law Journal.
  • Prior to the Kelo case, Camden County Assignment Judge Francis J. Orlando, Jr. set aside a municipal decision designating an apartment complex as an area in need of redevelopment in Spruce Manor Enterprises v. Borough of Bellmawr 315 N.J. Super 286 (Law Div. 1998). No evidence was presented to show how obsolescence, faulty design, excessive land coverage or obsolete layout was detrimental to the safety, health, morals, or welfare of the community.

  • In Winters v. Township. of Voorhees 320 NJ Super 150 (Law Div 1998), Judge Orlando reversed a blight designation on an 18-acre municipal-owned tract that the township intended for construction of an ice rink. Voorhees argued that the revision of the statute in 1992 created two categories of land eligible to be designated as in need of redevelopment: land that is used by public entities and unimproved land that is not likely to be developed by private capital. The township argued that municipal ownership is all that is needed in order to declare the site a redevelopment area. Judge Orlando disagreed, concluding that ownership of a tract of land by a municipality is not, standing alone, sufficient to support a redevelopment designation; it additionally requires substantial evidence that the land is not likely to be developed through the instrumentality of private capital in order to declare a site a redevelopment area. 320 N.J. Super at 156.

  • In a post-Kelo case, ERETC LLC v. City of Perth Amboy 381 NJ Super 268 (App Div 2005), the blight designation was reversed because city’s decision to designate the property as in need of redevelopment was not supported by substantial evidence. The court noted:
    You can’t just say by reason of dilapidation you’re in an area of redevelopment. You have to indicate how that’s detrimental to the safety, health, morals, or welfare of a community. And in order to demonstrate that … that’s where the evidence comes into play. That could have been demonstrated or possibly demonstrated through zoning violations, building code violations, fire reports, something of that nature. Again, that wasn’t present in the report. (381 N.J. Super at 275)

  • In Quagliariello v. Township of Edison (L2922-02), Middlesex County Superior Court Judge James Hurley set aside the township’s determination that the property, a charter bus facility, was an area in need of redevelopment. Edison was unable to demonstrate any public purpose for the taking and would have used its eminent domain powers for private purpose to build a Walgreen’s Pharmacy. The township’s expert only made exterior inspections of the property. As Judge Hurley noted in his opinion:
    The totality of the Township’s complaints essentially amount to a pothole in the pavement, two boarded-up windows, a few cracks, and a gutter that needed to be cleaned. The Subject Properties were kept in better condition than many people keep their own homes.

  • Judge Richard J. Donahue dismissed a blight designation for a Bergen County trailer park in 2005, concluding that the municipal planner failed to address the important criteria of the LRHL. In LBK Associates, LLC and Save Our Homes v. Borough of Lodi, (Law Division, A-001829-05), now in the Appellate Division, the planner failed to do interior inspections of the trailers or cite specific safety violations. Judge Donahue said that a mere finding of a need for redevelopment is not enough, and there would have to be an additional showing of public purpose.

  • In an unreported decision, Township of Bloomfield v. 110 Washington Street Associates, Essex County Assignment Judge Patricia Costello dismissed the eminent domain complaint against 110 Washington Street. None of the criteria cited by Bloomfield were connected to health, safety, or welfare of the community:
    In essence, the municipality took the brief description of the property (which arguably was underutilized, vacant and externally neglected as a result of the municipalities’ own actions – see supra), and concluded without any further analysis that this condition equated to a detriment to the public health, safety and welfare. (page 6)

All of these cases paved the way for Gallenthin Realty v. Paulsboro. Contrary to Justice Kennedy's statement in the Kelo arguments, blight is not in the eye of the beholder. Defining blight requires substantial evidence. The Gallenthin opinion will be read carefully by trial and appellate judges when they consider municipal attempts to blight properties under the criteria in N.J.S.A. 40A:12A-5 (a-h).


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