Due process issue in three redevelopment cases gives notice to Harrison

NOTICE: YOUR PROPERTY MAY BE CONDEMNED.  If you own a property in an "area in need of redevelopment," (a.k.a blighted area") you would expect to see those exact words at the top of the notice you receive from a municipality. The notice issue was first discussed on this blog in a commentary about the Shennett case, when the Passaic Redevelopment Agency justified taking Charlie Shennett's land and said they did what they were legally required to do. I wrote then: This is not enough. The notice requirement does not spell out in the text what the ultimate outcome will be: in this case, condemnation and acquisition of the property through eminent domain proceedings. How is this due process?

Yesterday the Appellate Division of the New Jersey Superior Court decided the due process issue in three cases. Writing for the court, Judge Jack Sabatino issued an 88-page opinion, approved for publication, in Harrison Redevelopment Agency  v. De Rose v. Town of Harrison, et al. The companion cases are Harrison Redevelopment Agency  v. Amaral and Harrison Redevelopment Agency  v. Harrison Eagle.

The court ruled that the 45-day limit to file suit against a municipality's effort to blight property for redevelopment is constitutional only if the owner received notice that the action contemplated by the redevelopment may result in the condemnation of their property. The court said:

We hold that, unless a municipality provides the property owner with contemporaneous written notice that fairly alerts the owner that (1) his or her property has been designated for redevelopment, (2) the designation operates as a finding of public purpose and authorizes the municipality to acquire the property against the owner's will, and (3) informs the owner of the time limits within which the owner may take legal action to challenge that designation, an owner constitutionally preserves the right to contest the designation, by way of affirmative defense to an ensuing condemnation action. Absent such adequate notice, the owner's right to raise such defenses is preserved, even beyond forty-five days after the designation is adopted.

Althought the Local Redevelopment Housing Law (LRHL) does not specifically provide for this, the court said clearly that this provision goes to the heart of due process, the Eminent Domain Act of 1971, and the LRHL.

The notice issue has been a frequent topic on this site, and here are some of the relevant posts:

  • In one of his reports the Public Advocate described due process deprivations, in which towns fail to provide clear notice to residents that their property may be condemned and do not hold fair hearings. Property owners and tenants do not receive proper notice. When property owners appear at meetings, that agenda item can be tabled and carried to another meeting, thereby frustrating and dissipating potential opposition to a project.
  • In City of Passaic v. Charles Shennett , the court said, "In exercising their powers of eminent domain, government entities must strictly comply with the rules and statutes governing condemnation. The circumstances here are so egregious that no remedy will suffice but to void the judgment and require the City to properly serve defendant with the requisite precondemnation notice pursuant to N.J.S.A. 20:3-6 and proceed from that point forward in accordance with the rules and statutes governing condemnation proceedings. "
  • Also download my article, Eminent Domain: Getting Noticed, which appeared in the New Jersey Lawyer a year ago today.

While the decisions in the Harrison redevelopment cases clearly state that a property owner must be told that the blighting of their property may result in eminent domain proceedings against them, the notice provision is among several changes to the LRHL proposed in pending bills before the New Jersey Legislature. I believe that the Legislature should go further and provide specific notice language in the statute revisions so that there is no question as to the meaning, no ambiguity in the text. This would avoid confusion and require conformity by all municipalities that wish to utilize their powers of eminent domain under the LRHL.

The three Harrison cases now revert back to Hudson County Assignment Judge Maurice Gallipoli for further hearings. In the DeRose case, the Appellate Court stated:

On remand, the trial court shall consider the merits of appellant's contention that the
proposed taking of his property for redevelopment violates the LRHL and the Blighted Areas Clause of the New Jersey Constitution. In particular, the trial court must assess, among
other things, whether the forced acquisition of appellant's land for redevelopment satisfies the criteria the Supreme Court recently expressed in Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007).

Manuel Amaral, a victor in one of the companion suits, was the owner of Amaral Auto Center and other family run corporations formerly located on Frank Rodgers Blvd, near the New Jersey Transit line in Harrison. Mr. Amaral has been a tireless advocate for property owner rights and testified before the Senate Community and Urban Affairs Committee in October of 2006. In an emotional appeal, he told Senator Ronald Rice, “I called my mayor...How come you guys are taking my property? I’m very concerned for my future, my kids’ future, and my neighbors….I see my future, my kids’ future going down the drain... There’s no place in Harrison to go. I’ve worked 30 years for this….We’re losing our freedom.”

Given the admonition of the Appellate Division in these cases and the New Jersey Supreme Court decision in Gallenthin, Harrison faces an uphill battle to prove blight by substantial credible evidence as required by the New Jersey Constitution (Section VIII, Paragraph 3) and the LRHL, N.J.S.A. 40A: 12A – 3, 5 et seq.

There are two practical problems in the Amaral case: One, he was forced to relocate. Amaral has relocated to Lyndhurst and now leases the former DeMassi Cadallac facility. A further complication is that Amaral withdrew a portion of the funds deposited with the clerk of the Superior Court. In the event that Judge Gallipoli rules in Amaral's favor, the declaration of taking would have to be vacated, Amaral would have to return funds to Harrison, and Harrison potentially would be obligated to pay Amaral legal fees and costs pursuant to N.J.S.A. 20:3-26b (See  Township of West Orange v. 769 Associates (A-5677-05T5), approved for publication on December 24, 2007).