First Liberty Principle: No Eminent Domain for Private Gain
Rejected redevelopment revisited by Union Township
New Jersey Eminent Domain Law Blog
(Source – http://www.njeminentdomain.com/state…-township.html)
This Friday, December 5, attorneys for Union Township will move before the Hon. Walter R. Barisonek for reconsideration of the court’s rejection of the township’s redevelopment plan. The township will present their alternative theory for rehabilitation, in place of redevelopment. This theory is equally without merit, as was the township’s original argument in support of redevelopment, based on the findings of fact and conclusions of law issued by Union County Assignment Judge Walter R. Barisonek issued on October 18, 2008. Judge Barisonek’s 55-page oral opinion rejected Union Township?s attempt to blight its downtown area. Download the transcript of Judge Barisonek’s opinion [http://www.njeminentdomain.com/uploa…01 62008.pdf].
Judge Barisonek’s opinion is significant for two reasons. The court rejected Union?s attempt to find this area located at the intersection of Stuyvesant and Morris Avenues to be an area in need of redevelopment. The Planning Board had adopted the opinion of its planning expert, The Metro Company, that the properties within the study area were blighted under the Local Redevelopment Housing Laws (LRHL). N.J.S.A. 40A:12-5c, d and e. The court first identified a misapplication of the law by the Planning Board based on the erroneous advice of counsel, Planning Board Attorney, Daniel McCarthy and Special Redevelopment Counsel Jennifer Credidio of McManimon & Scotland, Newark, New Jersey. The court found that the advice of counsel was misleading involving the use of the term ?blighted area?. N.J. Constitution, Article 8, Sec. 3, paragraph 1 and ?area in need of redevelopment? as found and defined in the LRHL N.J.S.A. 40a:12-5. It should be noted that the New Jersey courts have found these phrases to be synonymous. See N.J.S.A. 40A:12A-6(c) and Concerned Citizens of Princeton, Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007). The court also cited the recent Appellate Division case of City of Long Branch v. Anzalone, Docket No. A-0067-06T2, which was decided on August 7, 2008, and reiterated that the blighted areas clause of the New Jersey Constitution controls when redevelopment is the sole public purpose for a taking. Anzalone, supra. at p. 16.
The court concluded ?not only were the legal instructions (to the Planning Board) erroneous, to make matters worse, they clearly influenced the Board?s decision.” Transcripts of the Planning Board hearings showed clearly that the Planning Board members misunderstood the legal concepts being applied to these properties.
The court further found a fatal flaw in the Metro Report relied upon by the Board:
?There is also a fatal flaw to the Planning Board?s adoption of the Metro Report, I find, in the fact that this report failed to utilize the proper statutory criteria for designated area in need of redevelopment.?
?Metro, basically, says that if it violates the zoning laws and is in good condition, but not productive, it?s in need of redevelopment. That is not what the law says under Gallenthin or Anzalone. This is directly contrary, I find, to the holding in Gallenthin, that it has to be blighted and it has to lack a fully productive use. This is not a proper ground on which a determination of redevelopment should be made. It has to be blighted. See Gallenthin, at 365. Furthermore, it?s clear from a reading of the statements made by the Planning Board members at the hearings that some members did not believe the area in question to be blighted, but still recommended the area to be classified as an area in need of redevelopment. This is contrary to the correct wording of 40A:12A-6(c). It?s quite apparent that the Metro Report, and subsequently the Planning Board, misapplied the proper law in making the determination of this area as being in need of redevelopment.?
Based on the flawed legal advice and misapplication of the law by the Planning Board, the court rejected Union?s argument that the township decision to declare this an area in need of redevelopment was entitled to a perception of validity. See Levin vs. Town of Bridgewater, 57 N.J. 506 (1971). The court found that Union?s expert report was completely devoid of the ?substantial credible evidence? necessary to support a finding of blight. ERECTC v. Perth Amboy, 38 N.J. Super. 268, 277-281 (App. Div. 2005). The court quoted the New Jersey Supreme Court in Gallenthin in general:
?If a board member who otherwise should not have taken part in the hearings does so, and this has the potential to taint the outcome of the proceedings, the action of the Board pursuant to this improper influence should be voided.?
The court here found that the participation and comments by Committeemen Florio was improper. The court concluded Mr. Florio?s comments and participation at the Board hearing was calculated to influence the Board and was in part based on the erroneous advice of counsel discussed above.