Rejected redevelopment revisited by Union Township

Union Township business owner Raul Rodriguez was one of 22 property owners who successfully fought the blight designation and the use of eminent domain in Union Township, New Jersey.

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 here.

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.

Written By:RAY MILLER, JR. On December 4, 2008 10:54 AM

There is administrative law on the books and in the N.J. Statutes that prohibits any N.J. City Council from acting as a zoning board. Often times Mayors and their city attorney(s)force zone changes upon tax paying citizens and business owners in order to create blight. BOGUS BLIGHT AND BOGUS APPRAISALS GO HAND IN HAND. Mayors and Council members can be charged under these administrative NJ statutues.
In order to fight back, all that is needed is 35 signatures from taxpaying "freeholders" in the city, town, or boro as stated in N.J. Law.
Taxpaying "freeholders" are people who own land in the city, town or boro. It can be vacant land, business land and obviously includes homeowners. The dwellings of the taxpaying freeholders do not have to be occupied. So the best bet is to get twice as many signatures as needed (like 70 or 100).
Then you take it to a Superior Court Judge in your County and it forces an audit on your town. This action stops all ordinance introductions, zone changes and effectively shuts down local government until the audit is complete. It does not shut down schools or police forces.
Honestly Yours,
Ray M Miller, Jr.

Written By:William J. Ward, Esq. On December 4, 2008 3:07 PM

I believe the statute you reference is the Municipalities and Counties Local Fiscal Affairs Law 40A:5-22. Investigation of Expenditures of local unit, which says:
"A judge of the Superior Court may, in his discretion, make a summary investigation into the affairs of any local unit and appoint an expert or experts to prosecute such investigation whenever
a. a petition for such investigation shall be presented to him, signed by 25 freeholders, who have paid taxes on real estate located within the local unit within 1 year, and such petition sworn to and subscribed by them sets forth that they have cause to believe that the moneys of such local unit are being, or have been, unlawfully or curruptly expended, in which case, a least 10 days' notice of the hearing theron shall be fiven to the disbursing officer and the governing body of the local unit; or
b. a resolution of the govening body requesting such investigation shall be presented to him."