Appellate court affirms trial court in Lodi eminent domain case

"Now we know that you can't simply say that you can redevelop on the basis that you're not getting the highest return on your land." - Michael Kates, Esq., as reported in the Star-Ledger (July 25, 2007)

Lodi's attempt to blight and ultimately condemn two trailer parks, comprising aproximately 20 acres in the vicinity of Route 46, has come to an end. In a unanimous per curiam opinion by New Jersey Appellate Judges Kestin, Payne, and Lihotz, the court affirmed the decision of Superior Court Judge Richard Donohue throwing out the resolutions of the Lodi Planning Board, Mayor and Council that blighted the subject properties. Download PDF of the opinion:  LBK Associates, LLC and Save Our Homes v. Borough of Lodi and Costa Realty v. Mayor and Council of the Borough of Lodi (A-1829-05T2)

Last week we reported that the new Lodi Council had unanimously agreed to drop the suit. The decision of the Appellate Division is in line with several recent decisions reported in this blog (see blog entries about Belmar, and Mulberry Street) which follow the Gallenthin decision (PDF) in rejecting blight where the municipalities have not provided substantial, credible evidence supporting their findings.

In addition the court said (see Slip Opinion at pages 4-5)

We reject defendants' argument that plaintiffs failed to overcome the presumption of validity attending municipal actions generally. See Concerned Citizens of Princeton, Inc. v. Mayor and Council of the Borough of Princeton, 370 N.J. Super. 429, 452-53 (App. Div.), certif. denied, 182 N.J. 139 (2004). Once plaintiffs demonstrated the redevelopment designation was not supported by substantial evidence, that municipal action was no longer entitled to the deference normatively afforded. See, e.g., Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, ___ N.J. ___, ___ (2007)(slip op. at 40-41); ERETC, L.L.C. v. City of Perth Amboy, 381 N.J. Super. 268, 281 (App. Div. 2005).

We also reject defendants' argument that the matter should have been remanded for further proceedings. The shortcomings in the determinations under review were too basic and too far at variance with current principles governing the redevelopment process to be amenable to repair through further hearings. Defendants are not precluded from beginning the process anew and evaluating the properties by the light of the holdings and underlying policies in cases cited by Judge Donohue and more recent judicial reflections in the subject matter area and cognate fields, especially those dealing with the concepts of obsolescence and underutilization stressed by defendants. See, e.g., Gallenthin Realty, supra, ___ N.J. ___. See also Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005); Vineland Const. Co. v. Township of Pennsauken, ___ N.J. Super. ___ (App. Div. 2007).

In light of its findings concerning blight and the absence of substantial, credible evidence, the court did not address other important issues raised in the amicus briefs filed by the Office of the Public Advocate  (PDF) and the Northeast New Jersey Legal Services regarding the muncipality's constitutional obligation to make provisions for affordable housing and the effect of the exercise of eminent domain, which in these cases, would result in a net loss of affordable housing. This an important public policy issue which may be reached in the recent lawsuit filed by the Kaplan Companies of Highland Park seeking to overturn the Highland Preservation Act on the basis that it prevents the construction of senior and affordable housing in the Borough of Hackettstown.

The recent decisions that follow the Gallenthin ruling indicate that cases in the pipeline, including the cases in Long Branch pending oral argument in the Appellate Division, City of Long Branch v. Anzalone and Brower, will receive similar scrutiny regarding the propriety of municipal actions declaring blight and instituting eminent domain proceedings.  

Written By:Bruce MacCloud On July 26, 2007 7:54 AM

It's nice to see the Appellate Court starting to wake up for the survival of the peoples in N.J.

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