Daily Development for Wednesday, January 19, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu
MUNICIPAL LAW; REDEVELOPMENT; BLIGHT: The designation "blighted" can be used to describe affluent areas because to designate land for redevelopment as "blighted," a municipality need only satisfy any one of seven statutory criteria.
Concerned Citizens of Princeton, Inc. v. Mayor and Council of the Borough of Princeton, A-4461-02T2 (N.J. Super. App. Div. 2004); June 30, 2004.
Pursuant to the Local Redevelopment and Housing Law (LRHL), a local governing council designated certain municipal properties in its central business district as being in an area in need of redevelopment. This designation was in response to nearly two decades of the municipality exploring various alternatives to its parking problems. The council retained an urban development consulting firm to address the feasibility of the designation. After a public hearing that no one from the public attended, the planning board unanimously recommended to the municipality's council that the subject site be designated as an area in need of redevelopment. Accordingly, the council enacted the appropriate ordinance.
In response, local merchants and residents opposing the project filed a complaint, seeking a judgment that the subject site was not blighted and was not in need of redevelopment. (In addition to a big parking structure, the project involved some housing, including low income housing.) The lower court dismissed the complaint.
On appeal, the objectors contended that the property could not be considered "blighted" because of the area's relative affluence. In support of this argument, they pointed out that LRHL specifically provides that "[a]n area determined to be in need of redevelopment. . . shall be deemed to be a 'blighted’ area.'" The Appellate Division disagreed, holding that using "blighted" as a descriptor did not mean that affluent areas could not be designated as blighted if the statutory criteria for such a designation were met. It held that the LRHL and its legislative history showed that the Legislature intended that the LRHL would cover a broad range of circumstances under which a municipality could treat an area as being in need of redevelopment, without any conflict with the concept of relative affluence. The LRHL authorizes a municipality to designate areas for redevelopment if only one of seven conditions enumerated in the statute is met. The lower court concluded that the !
counci
l had satisfied two of the subsections.
Nonetheless, the objectors contended that a municipality may only use the limited criteria set forth in subsection (c) of LRHL to designate an area as blighted. Subsection (c) refers to public land or long vacant, unimproved private land that, by reason of remoteness, inaccessibility, topography or soil conditions, is not likely to be developed by private capital. This is the only subsection specifically mentioning public land. The Court disagreed that this was the sole subsection that could be relied upon to support the redevelopment of public land. It held that this subsection does not preclude a municipality from designating public land for redevelopment under any of the other subsections. Therefore, because the council had shown that the designated land qualified under at least one of the other statutory criteria of the LRHL, it affirmed the lower court's decision to dismiss the objectors' claim.
The other sections relied upon by the City provide that redevelopment can take place where:
(1) there are areas with dilapidated or obsolete buildings, or buildings with faulty arrangement or design, lack of ventilation, light and sanitary facilities, “excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors detrimental to the safety, health, morals, or welfare of the community.”
(2) a growing or total lack of proper utilization of areas caused by “the condition of the title, diverse ownership of the real property therein or other conditions. . . .”
(3) areas in excess of five acres where buildings or improvements have been destroyed or altered by natural conditions in such a way that the aggregate assessed value of the area has been materially depreciated.
Comment 1: Note that these three criteria are so general and all encompassing as to permit designation of virtually any land in any city in the country. Essentially it appears that, by saying that the city can turn its own land over to private redevelopment based upon these factors, the court is concluding that there is no Constitutional barrier to this process at all.
Comment 2: The criteria in the New Jersey statute are similar to those in many other jurisdictions. Such definitions of “blight” are likely to become a hot topic shortly, as the Supreme Court reevaluates the power of local government to take private property for private development purposes. That issue was not involved in the instant case, where private development was involved, but the land in question was already municipal land, so the only real “public purpose” question was whether there was an adequate public objective in constructing the parking garage and providing housing. The court didn’t even look at the Constitutional question, but simply concluded that the statutes authorized the city to use its land in this way, and that’s that.
When the Supremes reach the constitutional issue as to when government can undertake private-based redevelopment, it is likely that we will have a more generous “public purpose” standard for when the question is use of land already owned by the public than the standard necessary to support condemnation of private land. But nevertheless, any discussion of “blight” in the present climate is instructive.
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