“If the court renders final judgment that the condemnor cannot acquire the real property by condemnation or, if the condemnation action is abandoned by the condemnor, then the court shall award the owner of any right, or title to, or interest in such real property, such sum as will reimbursed such owner for his reasonable costs, disbursements and expenses actually incurred, including reasonable attorney, appraisal and engineering fees.”

   
Despite the clear language in the statute, not all courts have allowed property owners to recover legal fees when a condemning authority decides to abandoned a condemnation case.  For example, a case decided in 1999 denied a request for allowance of legal fees and expenses in a condemnation action where Essex County filed a condemnation complaint, but abandoned the lawsuit before the commissioners held their hearing.  Essex County v. RAR Development, 323 N.J.Super. 505 (Law Div. 1999).  The Essex County court relied upon a case from 1941 which held that a property owner’s right to receive attorneys was “conditioned” upon the public entity abandoning the condemnation action within 20 days after the filing of the commissioners’ report or jury’s verdict.  Since the case in question did not reach the commissioners’ hearing stage, the court denied the request for legal fees and expenses.

   
On December 24, 2007, the Appellate Division of the Superior Court of New Jersey decided a case which rejected the Essex County decision.  West Orange Township v. 769 Associates, LLC, ___ N.J.Super. ___, 2007 WL 4472101 (N.J.Super.A.D. 2007).   In 769 Associates, the Appellate Division found that the entitlement to reimbursement of legal fees and expenses is triggered upon the filing of the condemnation action.  Once the complaint is filed, any abandoned entitles the property owner to reimbursement of legal fees and expenses.  In rejecting the Essex County decision, the Appellate Division found that the trial court in Essex County erred when it relied upon a decision interpreting a statute which had been repealed.  The Appellate Division continued by declaring:

      
 “Here, by contrast, there is simply not textual support in N.J.S.A. 20:3-26(b) for such a limitation.  Under our current law, the only condition that must be satisfied to trigger the right of reimbursement is the abandonment of a condemnation action by the public entity.  The point in time in which this occurs is not a relevant consideration in determining whether reimbursement is warranted.”

   
The Appellate Division also held that legal fees and expenses incurred prior to the filing of the condemnation complaint cannot be recovered by the property owner.  This is somewhat problematic because often times a property owner retains counsel to negotiate with the condemning authority before the condemnation complaint is filed.
  
   
769 Associates is an important case for two reasons.  First, is it seems to over-rule Essex County, although there is an argument that the Appellate Division’s discussion of the Essex County case is dicta and not binding on lower courts.  Second, as set forth in the blog posting discussing the Township of Pemberton v. Berardi decision,  a condemnor does not have to commit to the taking until many months into the case.  Now, as a result of the 769 Associates case, property owners have some recourse if a condemnation case is abandoned by the condemning authority late in the case.

In his response, Mr. Duggan discusses the various issues that make eminent domain such a controversial subject, including, the different types of redevelopment, relocation benefits, and the need for adequate compensation.

You can read Mr. Duggan's full response here.

The seminar will provide a case law update and seminars focusing on: representing municipalities, legal challenges one will face during the redevelopment process, updates on redevelopment legislation and a discussion on condemning residential areas vs. commercial/retail/industrial areas.

The conference will also feature a mock trial with the Honorable Douglas J. Wolfso, Esq. and several New Jersey Real Estate attorneys, including Stark & Stark Shareholder, Timothy Duggan.

Mr. Duggan and Vincent Mangini, both Shareholders and member of Stark & Stark's Condemnation and Real Estate Groups, will present the case law update at this year's seminar.

You can log onto CLE's seminar page for registration information and a downloadable brochure of the conference here.

Mr. Duggan commented on Pathmark's potential option of filing an appeal in court in order to save the property, and states that while it is difficult to get a stay granted, several recent court decisions have favored property owners.

You can read the full article here.

    What is at stake is the right to own property on one hand, and the need to encourage and complete redevelopment plans in truly blighted areas.  When used properly, redevelopment can turn a blighted and unsafe area into a thriving and safe neighborhood.  However, when abused, properties which have some deferred maintenance issues (i.e. chipped paint) are being taken to make room for higher end homes and businesses, changes need to be made.  The proper balance can be achieved by focusing on the following issues.

    First, the issue of what constitutes “blight” must be addressed.  The New Jersey Constitution limits the taking of private property for private redevelopment to blighted properties only. Some believe that the vague definitions in the Local Redevelopment and Housing Law have greatly expanded this limitation and would allow virtually all of New Jersey to be placed in an “area in need of redevelopment” since a land planner could most likely find a problem in every home and conclude that, based upon today’s design and land use standards, the property in not fully productive or fully utilized.  The proper balance can be achieved by changing the definition of an “area in need of redevelopment” to one that is closer to the constitutional requirement of blight.

    Second, all public notices should be use plain language and delivered to homeowners, not just published in the local newspaper.  The public must be told that their local government is considering action that may involve the condemnation of their homes or business.  For a person to understand the type of notice used by most towns seeking to designate an area in need of redevelopment, he or she would have to enroll in law school and take several classes in land use law.  The law needs to be changed so that property owners receive notice in a manner designed to allow them to seek professional advice on how to proceed.

    Third, make it clear that the condemning authority must prove, at every stage, that the property is blighted.  All hearings need to be open to the public with a detailed explanation of what exactly will happen if a redevelopment plan is approved.  Each step must be explained, with an opportunity to ask questions and present proofs.  A detailed record needs to be made in order to allow for proper judicial review when the time comes.

    Finally, compensation needs to be fair. Under the present law, compensation is often inadequate and the relocation benefits minimal, at best.  Property owners should not be given a windfall, but need to be made whole in order to meet the requirement of just compensation.  It is the “making whole” that needs to be addressed. Much of the resistence to the legitimate exercise of eminent domain would be eliminated if property owners felt adequately compensated and relocation costs covered.

    In regards to residential property owners, they must be paid enough money to find  replacement housing in a safe and comparable neighborhood.  In some circumstances, replacement housing may cost more than the property being taken.  Under existing law, the measure of damages is generally the fair market value of the property being taken.  In many cases, the fair market value standard works.  However, when replacement housing cannot be purchased with the fair market value taking proceeds, a property owner must have some other recourse in order to be justly compensated.

    As for businesses, New Jersey law only requires a condemning authority to compensate a property owner for the real estate, not the business itself.  The only requirement is to relocate the business.  Often times, a business is dependent upon a certain location (i.e. down town location) and cannot afford a rent increase.  If there are no affordable business locations available, the business may be forced to close. The law needs to be reformed to take into consideration rent differentials and allow business owners an opportunity to prove that additional compensation is needed to allow them to survive.

    Redevelopment is a necessary planning tool for many parts of New Jersey.  We have neighborhoods and cities that need to be revived for the long-term health of our State and its residents.  However, eminent domain cannot be used simply because a town decides it prefers a more upscale neighborhood or needs additional tax ratables.  The proper balance will allow blighted areas to be redeveloped, but stop the abusive practice detrimental to the rights of property owners.   

The New Jersey Supreme Court started its review by taking us back to the Blighted Areas Clause of the New Jersey Constitution which confines the taking of private property for private redevelopment to those areas considered “blighted.”  When the New Jersey Constitution was amended in 1947 to add the Blighted Areas Clause, the New Jersey Legislature was concerned that certain sections of older cities had fallen in value and become “blighted” or “depressed.”  To facilitate investment in blighted areas, governing bodies needed the ability to assemble blighted properties in order to attract private investment in the hopes of reviving a depressed area.  This is a sound policy.  Years later, the legislature adopted the Local Redevelopment and Housing Law which adopted the concept of an “area in need of redevelopment” which, for all intents and purposes, was an expanded definition of blight.

In this case, the fact that the property was not fully productive, standing alone, clearly cannot be the basis for a taking under the limitations imposed by the Blighted Areas Clause of the New Jersey Constitution.  The New Jersey Supreme Court confirmed that to meet the requirements of the New Jersey Constitution, more must be shown.  Evidence must be presented as to why the property is not fully productive and that evidenced must be viewed in light of the other criteria set for in the Local Redevelopment and Housing Law.

Equally important is the New Jersey Supreme Court’s statement the a municipality must present “substantial evidence” to support its case.   A record must be created with facts and expert opinions that are more than a cursory review of the property and recitation of the statutory criteria. Trial courts are reminded that in order for a municipality to get the decision making deference it seeks, it must first come forward with substantial evidence to support its designation of an area in need of redevelopment.

This decision does not change the law - it merely enforces the law.  The Blighted Areas Clause of the New Jersey Constitution has been around for over 50 years and the New Jersey Supreme Court confirmed its limitation on redevelopment projects.  The Supreme Court’s decision re-enforces the growing trend of striking designations that resulted from net opinion reports and cursory review of properties.  More important, the decision will have no impact on legitimate (constitutional)  redevelopment projects.  Towns that do their homework and hire qualified planners will still be able to redevelop blighted and depressed parts of town as envisioned by the drafters of the Blighted Areas Clause of the New Jersey Constitution.

The New Jersey Turnpike will be widened between Interchanges 6 and 9, including widening the existing roadway from three to six lanes in each direction between 8A in Monroe Twp. and 6 in Mansfield Twp. The Authority also intends to widen the Garden State Parkway between mileposts 30 and 80. Other road projects are occurring on local, county and state roads. Many road-widening projects require that some private property be purchased or condemned under the power of eminent domain.

As a general rule, a property owner is entitled to just compensation for the value of property taken through eminent domain. If the entire property is acquired, the general measure of compensation is fair market value. However, the matter becomes complicated when only a portion is taken in what is referred to as a “partial taking.”

In a partial-taking, the owner is entitled to be paid for the value of the property taken and any damage to the property they retain, referred to as the “remainder.” Partial takings are generally more complicated than full taking since they require more thorough analysis of the impact on the remainder which may have lost parking, access, highway views and certain future land use rights.

However, what happens when the road widening causes the highway to be so close to the buildings that the owner is forced to close its business and move, or is being so disrupted that operating the business is problematic? Can the property owner force the state to acquire the balance of the property to have a complete taking? The answer depends on whether the value of the remaining property is essentially zero.

The legislature passed a law in 1971 stating, “if as a result of a partial taking of property, the property remaining consists of a parcel or parcels of land having little or no economic value, the condemnor, in its own discretion or at the request of the condemnee, shall acquire the entire partial.” N.J.S.A. 20:3-37. The property left with little or no economic value is commonly referred to as a “uneconomic remnant.” Although at first read the statute seems straightforward, the words “little or no economic value” have caused litigation and heartaches.

Case law interpreting the statute in New Jersey and other states focuses on the economic value of the remainder, not the present use of the property. If the owner can no longer use the property for its present use, they must still prove that the property cannot be put to some other use that has value to force the State to take the entire property.

For example, a New Jersey Court failed to require the State to condemn an entire parcel being utilized as a church when a highway was expanded. After the widening, the highway was 41 feet from the front door of the church and the right of way extended to the lower steps of the entrance. At trial, the pastor testified that the church was unable to conduct services as a result. Although the court did not dispute that the church was deprived of the use of its building, the church failed to show that the property was “unfit for all uses.” As a result, the church was only entitled to the value of any damage it could prove to the property it retained.

In another case, the court did require the State to acquire an entire parcel when it sought to expand a road. In that case, part of the building was taken and what was left could not be put to any economic use. In addition, the remainder lands saddled the property owner with a building that had to be demolished and potentially could cause safety hazards.

It is very difficult to prove that a remainder has little or no economic value. When an owner’s existing use is no longer viable, the property may still have some economic value, thereby precluding a complete taking. This is particularly disturbing when an owner is required to move his business as a result of the taking, but is saddled with a property that no longer meets his needs. Although the condemning authority may be required to pay relocation expenses, the condemning authority is not required to pay for loss of business.

Uneconomic remnants cases are very difficult to win. As a result, it is important for property owners to perform a thorough investigation of every possible way the remainder may have been damaged by the taking in order to be made whole. If an owner does argue the remainder has little or no value, the property must have strong testimony from a qualified appraiser.

You can read the full article here.

The seminar will address:

• Case Law Developments
• The State of Eminent Domain Legislative Reform
• Environmental Issues
• Valuation Issues
• Planners in the Process
• Relocation Assistance Issues
• The Ethics of Redevelopment

You can download the brochure here.

In New Jersey, a business operator (owner or tenant) is entitled to relocation assistance if the business is required to be moved as a result of an eminent domain case. However, under New Jersey law, the mandated relocation benefits are skimpy at best and are presently under review as part of the pending legislation seeking eminent domain reform. As evidenced by a recent Appellate Division decision, business owners must be very diligent in order to maximize their potential recovery of relocation benefits. Jersey City School District v. Marathon Enterprises, docket no. A-6188-03T5, Jan. 4, 2007).

Marathon Enterprises owned a building which was acquired by the Jersey City School District to build a school. After a trial, the jury awarded Marathon $5.2 million as just compensation for the building. Marathon also sought relocation benefits arising from the relocation of machinery and equipment to its new facility. After a three day trial before an administrative law judge, the court awarded Marathon $2,039,265 in relocation benefits. The New Jersey Department of Community Affairs adopted the decision and the Appellate Division affirmed. Why did Marathon receive so much money for relocation benefits? The answer is:

1.  The business involved a meat processing operation (Sabrett hot dogs) which was subject to strict regulation by the United States Department of Agriculture (USDA). The USDA regulations require raw and cook meat to be kept separate, the plant must be cleaned and sanitized daily, and the floors must have drains and be slanted to allow for proper water flow . The administrative law judge’s opinion will tell you everything you always wanted to know (or not know) about hot dogs! As a result of the unique operation, it was not a simple move. 

2.  Neither the school district nor property owner could find a suitable place to relocate the business in the surrounding towns. Marathon decided to buy a building adjacent to its operation in the Bronx, New York, and renovate the building to make it USDA-compliant and accommodate the equipment being relocated from Jersey City. The total cost of the land acquisition and renovations to the building was $11 million. 

3.  Among some of the big ticket items in the renovations of the building were (a) lowering the floor several feet, (b) new electrical service necessary for the equipment being moved, and (c) modifying the building to keep the raw meat process separate from the cooked meat process. The attached decision goes into detail on what was done to the building. Since the USDA has onerous requirements for meat processing operations, the cost of the new facility was exorbitant.

 4.  Most important, Marathon had outstanding documentation to prove its case. During the trial, Marathon was able to separately identify which expenses were directly related to machinery and equipment being moved to the new location. For example, invoices for electrical work were broken down by area of the plant which enable Marathon’s witnesses to relate the invoice to specific equipment (ie. machine being relocated or a new piece of machinery).

This case is important to both condemning authorities and property owners. Condemning authorities must understand the nature of a business to be relocated and investigate any unique needs of the business. The time to do this is before the Workable Relocation Assistance Plan (WRAP) is completed. Properties owners must prepare their case while renovations are being made and ask their contractors to provide detailed invoices for work which may be recoverable under New Jersey law.

Read the decision here.

Technorati Tags: New Jersey : Redevelopment : Condemnation

Redevelopment planning is a multifaceted task, approached in any number of ways depending upon the circumstances. First, before conceptualizing a redevelopment project, a builder should find a geographic area that elected municipal officials are interested in revitalizing. As an initial step, a developer should research government records to see whether any neighborhoods within a given municipality have already been designated as redevelopment areas. Certainly, municipal officials may be more receptive to a proposed redevelopment project for an existing redevelopment zone than one that will require the municipality to designate a brand new area, which, in turn, might necessitate the expenditure of public resources. In any event, the builder should be satisfied that the location it is interested in pursuing, whether it be within an established redevelopment zone or a non-designated area that needs to be studied and approved, actually satisfies the statutory criteria for redevelopment.

Under the Local Redevelopment and Housing Law (“LRHL”), a municipality shall not declare an area to be in need of redevelopment unless the municipal governing body concludes after investigation, notice to the public and the conduct of a public hearing, that the properties within the delineated area satisfy any one of the statutory criteria or are otherwise determined to be necessary for the effective redevelopment of the said area. Due to these legal requirements, it would be a mistake for a builder to spend time and money formulating a redevelopment proposal without first conducting some due diligence into the validity of an existing or proposed redevelopment area, which could include, for example, hiring a professional planner to evaluate the eligibility of properties within the subject area for redevelopment or, if the builder is considering an existing redevelopment zone, hiring an attorney to examine whether there is substantial, credible evidence in the record to support the determination and whether the municipality complied with all procedures required by the LRHL.

Indeed, the aforesaid due diligence inquiry is crucial if a builder’s proposal contemplates the acquisition of private property by eminent domain. Although the issue has not been determined definitively by the courts, there are several unpublished decisions that have permitted a property owner to challenge a condemning authority’s power to acquire property under a redevelopment plan by eminent domain as an affirmative defense. Therefore, irrespective of the enthusiasm that municipal officials might have about a particular redevelopment proposal, it would be unwise for a builder to pursue the matter further unless it were clear that the existing or proposed delineation, as applicable, would likely withstand a legal challenge.

Once a builder has found a geographic area that is acceptable to municipal officials and qualifies for redevelopment, the next step is to prepare a concept plan for the redevelopment project. How this is accomplished will depend to some degree upon whether the property that the builder seeks to redevelop lies within an existing redevelopment area and, if it does, whether a redevelopment plan for such area is in place.

If the builder is developing a concept plan for property that has not yet been delineated or a concept plan for property that has been delineated, but is not yet governed by a redevelopment plan, the builder initially will have to work closely with municipal officials in developing an overall vision for the proposed or existing redevelopment area, which will serve as the basis for the redevelopment plan. Only after this task has been accomplished should the builder do any significant work on formulating a proposal for the redevelopment of all or any portion of the proposed or existing redevelopment area. The easier, less time-consuming road is to focus effort on redeveloping an existing redevelopment zone for which the governing body has already prepared and approved a redevelopment plan. In this instance, a builder may proceed directly to the preparation a concept, which should as closely as possible conforms to the design, dimensional, density and use requirements contained in the redevelopment plan. Of course, the developer will still have to meet with municipal officials to refine the concept into a proposal that may be presented to the planning board for approval. In the event that an existing redevelopment plan is outdated or otherwise inadequate, the builder must seek to have the municipal governing body amend the redevelopment plan to accommodate a particular proposal.

In addition to working with municipal officials to develop concepts for a redevelopment project, the builder would be well advised to contact and meet with all owners of property and tenants, both commercial and residential, who may be impacted by the proposal. Certainly, there is some risk in reaching out to residents and businesses within a project area. However, by informing and being open to comments and suggestions from the public, a builder may actually enlist allies for, or at least neutralize potential opposition to, a redevelopment project. Moreover, interaction with persons who have lived and/or worked within the project area may result in the acquisition of valuable insight about the project area and surrounding neighborhoods, which could be used by the builder to refine the proposed redevelopment project in ways that address the concerns of all interested parties.

The process of achieving redevelopment by consensus-building is a formidable task, which entails many nuances and potential pitfalls that are beyond the scope of this article. However, builders should not shy away from this challenge. On the contrary, it is critical for builders to become adept at working with municipal officials and the communities they are seeking to reshape if they are to compete in the redevelopment arena.

Technorati Tags: New Jersey : Redevelopment : Eminent Domain

For more information see our media advisory on this decision here.

Read and listen about the history of the Mt. Laurel v. MiPro case here, here, here and here (podcast).

You can read Stark & Stark's press release on the Mt. Laurel decision, which includes audio clips of Gary Forshner discussing the decision's impact here.

Technorati Tags: New Jersey : MiPro : Eminent Domain : Open Space

Recently, Public Advocate Ronald K. Chen filed an amicus brief (“friend of the court” brief) with the Appellate Division of the Superior Court of New Jersey in support of the lower court’s ruling. Mr. Chen is asking the Appellate Division to carefully consider the following legal issues: (1) the appropriate standard of review for a municipality’s determination declaring an area as “blighted” or in need of redevelopment; (2) the allocation of the burden of proof when such a determination is challenged; (3) the quantity and quality of proof that constitutes “substantial credible” evidence of blight; (4) the appropriate standard for assessing the relationship between a finding of blight and the size of the redevelopment area; and (5) heightened scrutiny that must be applied when a municipality’s blight designation will eliminate affordable housings. A copy of the Public Advocate’s brief can be found here.

This is an important case to follow. The Appellate Division is being asked to review another case where the property owner was successful in challenging a redevelopment designation because the condemning authority failed to prove the property was in need of redevelopment. In the event the Appellate Division reviews and decides the issues raised by the Public Advocate, the burden of proof may change once again. This decision, along with the pending legislation seeking to change the eminent domain laws in New Jersey, may alter the redevelopment landscape in New Jersey.

Technorati Tags: New Jersey : Condemnation

After reviewing the legal briefs and hearing oral argument, the trial judge stayed the condemnation case to allow Solberg Aviation to conduct discovery in order to prove its case. The discovery will focus on the Township’s “true motivation” in seeking to acquire the property. Under New Jersey law, acquisition of property for open space is generally deemed a valid public use which permits the government to use its power of eminent domain. However, New Jersey law also prohibits the use of eminent domain where there has been a “showing of improper motives, bad faith, or some other consideration amounting to a manifest abuse of the power of eminent domain.” These types of cases are generally referred to as “pretextual takings.”

It is important to note that the trial court did not find that there was an improper motive or bad faith on the part of the Township. Rather, based upon the limited evidence before the court, the trial judge found that Solberg Aviation made a prima facie case for a pretextual taking entitling Solberg Aviation to take discovery in the form of depositions, document review and the like. Among the evidence presented at the hearing was “admissions made by township officials as well as the auspice under which the $22 million bond was secured, both of which state that the reason for this action was to prevent expansion of the airport, and not the preservation of open space.” Solberg Aviation now has an opportunity to question township officials under oath, which ultimately may help Solberg Aviation prove its case. This case is another important case in New Jersey following on the heals of the Mipro case which is being considered by the New Jersey Supreme Court.

Technorati Tags: New Jersey : Condemnation: Mipro

Courts look at the proposed public purpose at the time of the taking to determine whether the taking is constitutional. However, most governmental takings are political in nature and subject to changing administrations and funding availability. In addition to governmental uncertainties, the economic climate may also impact construction projects, especially redevelopment projects. There are numerous redevelopment projects on the drawing board throughout New Jersey which are at various stages of planning and implementation. If housing demand drops, it is questionable whether redevelopers will seek to complete projects immediately, or look to delay the construction until the housing market improves. The recent bankruptcy filing by Kara Homes may be a telling sign.

Technorati Tags: New Jersey : Eminent Domain : Condemnation : School Construction

According to Mrs. Shelton, as reported in the October 4th edition of the Trenton Times, four council members in the past have expressed reservations about using eminent domain for K. Hovnanian's proposed 84-unit condominium complex known as the Villages at Delaware Run. At least one councilman, Jim Coston, has continued to buck K. Hovnanian's redevelopment effort due to, apparently, the City's and K. Hovnanian's less-than-satisfying approach in their attempts at acquiring the subject properties. Indeed, The Times reported in the October 4th news story, among other things, that "Coston complained" about the administration's failure to "sen[d] the property owners letters about the the [C]ity's intentions" regarding eminent domain, forcing property owners "to learn about it through a local newspaper."

City Council is expected to vote on proposed ordinances giving the City of Trenton authority to take the Sheltons' property and others by eminent domain at its meeting on October 10, 2006.

Technorati Tags: New Jersey : Eminent Domain : Condemnation

On behalf of our clients, Mr. and Mrs. Shelton, we were successful in having an amendment to an area in need of redevelopment to include the Shelton's property stricken by the court. (Decision - PDF) The City (and its redeveloper) went back to the planning board and are seeking a "do over" to once again go after the Sheltons' property. Although this is permitted, a certain City councilman who is concerned over Eminent Domain abuses has voiced his opposition to any amendment that would allow the condemnation of property. Mr. and Mrs. Shelton have done a terrific job of staying on top of this project and making certain that City council is aware of what is going on.

Technorati Tags: New Jersey : Eminent Domain : Condemnation

The discussion was focused around the current eminent domain controversy taking place in Readington Township.  A group called the Taxpayers' Alliance of Readington is suing township officials over concerns that lawmakers may abuse their authority by spending more than the publicly approved $22 million to purchase the development rights to Solberg-Hunterdon Airport.

Technorati Tags: New Jersey : Condemnation : Eminent Domain

The seminar discussed the redevelopment process under New Jersey law and what property owners need to know.

You can listen to the seminar here.

Technorati Tags: New Jersey : Podcast :  Eminent Domain : Redevelopment : Condemnation

On August 8, 2006, in the matter of City of Asbury Park v. Asbury Park Towers, et. al. the Appellate Division of the New Jersey Superior Court affirmed the trial court’s denial of an application by a redeveloper to intervene in a condemnation action. Although the Court recognized that “. . . Asbury Partners, as the Master Developer, has a significant stake in this specific acquisition . . . we are satisfied that the interest of the redeveloper is adequately represented by the condemning authority in the valuation proceedings.” The Court based this decision on a multitude of factors. For example, the Court noted the impracticality of allowing a private redeveloper “. . . to micro-manage the proceedings once the matter is turned over to the condemning authority.” The Court also found that the City of Asbury Park’s track record clearly demonstrated a zealous and unyielding commitment to the acquisition of property necessary for redevelopment. The Court focused most of its attention on this circumstance and the failure of the redeveloper to offer any contrary evidence. Indeed, according to the Court, “[i]n the absence of a clear showing, by specifically articulated facts, of conduct by the public entity that palpably evinces a derogation of its fiduciary responsibilities, there is no basis upon which to conclude that the interest of the redeveloper is not adequately represented in these valuation proceedings. No such showing has been made here.”

The Appellate Division’s decision in City of Asbury Park v. Asbury Park Towers has been approved for publication.