In Cottage Emporium, Inc. v. Broadway Arts Center, L.L.C., No. A-0048-97T2 (Apr. 16, 2010) (per curiam), the New Jersey Superior Court (Appellate Division) struck down the city of Long Branch, New Jersey’s declaration that properties located in an area of the city known as the “Broadway Corridor” are blighted. The court held that the city must do more than recite the statutory criteria for blight and then assert the properties met the criteria.
The city determined the properties were in “poor” condition using only “cosmetic and superficial” criteria, and by visually inspecting the buildings’ exteriors. Nor did the city attempt “even in small part to establish what Gallenthin [Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007)] requires, namely a degree of ‘deterioration or stagnation that negatively affects surrounding areas’ by promoting conditions that can develop into blight.” Slip op. at 36.
Although a city’s blight determination is presumed valid and challengers have the burden of overcoming the presumption by demonstrating that the determination was not supported by “substantial evidence,” the appellate division noted that in Gallenthin, the New Jersey Supreme Court held that the “substantial evidence” standard required that the city do more than recite the “applicable statutory criteria [regarding blight] and a declaration that those criteria are met.” Slip op. at 27.
The court contrasted Long Beach’s blight determination with the survey taken in Lyons v. City of Camden, 52 N.J. 89 (1968), where the city looked at the exterior and interior of each structure, and three engineers and an architect evaluated each building’s deficiencies before a structure was declared to be substandard. Slip op. at 37. Long Branch’s blight report, by contrast, concluded the Broadway Corridor properties were blighted because “[t]he generality of the buildings are substandard, unsafe, unsanitary, dilapidated or obsolescent, or possess any of such characteristics.” Slip op. at 38. The court held this was a “bland recitation of statutory criteria” that failed to explain its basis.
The court concluded:
We conclude that the City’s designation of the study area properties as in need of redevelopment does not satisfy the heightened standard made applicable to such determinations by the Supreme Court’s decision in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, 191 N.J. 344 (2007). Therefore, because the record does not contain substantial evidence to support the City’s findings under any of the subsections upon which it relied, we reverse the judgment appointing condemnation commissioners and vacate the declarations of taking.
Slip op. at 5. The court remanded the case to the trial court to allow the city to make a better record, if possible. More on the decision here from NJ.com. According to the story:
[Long Branch] Mayor Adam Schneider said he does not see the point in pursuing an appeal given the way courts have ruled in recent eminent domain cases.
“I think eminent domain is a dead issue in New Jersey and Long Branch at this point,” he said, adding he would no longer propose using eminent domain — the seizing of private property by governments for public projects — for any redevelopment in the city.
Thanks to Robert Poliner for the heads up on this decision.