Eretc v. Perth Amboy

The winds are changing and it appears that New Jersey courts are taking a closer look at redevelopment plans being proposed in the State of New Jersey. In the past, courts would accept “net opinion” reports of township planners and rubber stamp redevelopment plans. Net opinion reports contain no support, just bare conclusions. Now, courts are requiring condemning authorities to truly prove that any proposed redevelopment plan meets the requirements of New Jersey Law.

In Eretc v. Perth Amboy, 2005 N.J.Super. Lexis 337 (App. Div. November 15, 2005), the Appellate Division of the Superior Court of New Jersey reversed and remanded a trial judge’s decision holding that the evidence presented to the planning board was not sufficient to sustain a finding that the properties included in the area in need of redevelopment meet the requirements of the New Jersey Local Housing and Redevelopment Law (N.J.S.A. 40A:12A-5).

After the municipality approved a redevelopment plan, a property owner filed a complaint in lieu of prerogative writ to challenge the municipality’s decision. The property owner owned a manufacturing building that was not only in good shape and 75% occupied, but employed 345 people. The majority of the employees lived within five to eight miles of the business. The owner of the business appeared at the planning board hearings and asked numerous questions. As a result, a second investigation was prepared. The council adopted a resolution accepting the planning board’s recommendation that the property in question was in need of redevelopment.

At trial, the property owner presented the testimony of his own land planner. The planner attacked the city’s evidence and pointed out the deficiencies in the city’s expert reports, and explained what the law requires:

You can’t just say by reason of dilapidation you’re in an area of redevelopment. You have to indicate how that’s detrimental to the safety, health, morals, or welfare of a community. And in order to demonstrate that . . . that’s where the evidence comes into play.”

Without getting into a detailed analysis of the planner’s report, the court ultimately found that the city failed to meet its burden of proof of providing substantial evidence on the condition of the property. The planner’s report relied upon by the Planning Board and Council contained bare conclusions without any substance.

To defeat a redevelopment plan, a property owner must have a thorough understanding of the criteria used to determine whether properties are in need of redevelopment and, more important, be prepared to attack the evidence offered by the condemning authority. The condemning authority must be prepared to offer an extensive report with detailed findings on the condition of properties in the area to be redeveloped. In the end, land planners and other experts must be retained and work closely with counsel if a plan is to be approved to defeated.

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