Shelton v. Planning Board of the City of Trenton The Superior Court of New Jersey appears to be taking a closer look at redevelopment designations and striking approvals that are based upon the unsubstantiated net opinions of land planners. Courts are willing to review the record before the planning board and governing body to determine whether the designation of an area in need of redevelopment is supported by “substantial credible evidence” as required under the Local Redevelopment and Housing Law (“LRHL”). For example, on December 16, 2005, the Superior Court of New Jersey found that the City of Trenton’s approval of an expansion of the Champale Redevelopment Area and amendments to the redevelopment plan was not supported by the record and sent the Trenton Planning Board and City of Trenton back to the drawing board. Shelton v. Planning Board of the City of Trenton, et. al., docket no. MER-L-0068-05 (N.J. LawDiv. Dec. 16, 2005). In Shelton, the City of Trenton sought to amend a redevelopment area to include additional parcels. Among the parcels to be included in the redevelopment area were lots owned by two individuals who were in the process of developing plans to build residential units on the property (which was the same use as the redeveloper). Although the property owners objected at the public hearings, the Planning Board and City Council approved the area designation and amendment to the redevelopment plan. The property owners filed a complaint in lieu of prerogative writ to challenge the approvals on both procedural and substantive grounds. In regards to the procedural challenges, the court held that the defects were de minimis and did not rise to the level necessary to overturn the approvals. The decision provides a good overview of the procedure for designating an area in need of redevelopment and is good reading for those interested in learning the process. However, the main challenge was to the evidence, or lack thereof, before the Planning Board and City Council. The property owners argued that the Planning Board’s expert offered a “net opinion” which was not supported by a sufficient study of the properties to be included in the redevelopment area. As a result, the Planning Board and City’s reliance on the study was arbitrary, capricious and unreasonable and should be vacated. In reviewing the challenge, the Shelton court reviewed the record in light of the procedures and techniques developed in ERETC v. City of Perth Amboy, 2005 N.J.Super. Lexis 337 (App. Div. November 15, 2005). In ERETC, the Appellate Division found that the planning board’s expert:

he did not inspect the interiors of the buildings, did not review applications for building permits, did not review occupancy rates or the number of people employed in the area. He did no investigation into whether the properties were “properly utilized” or whether they were “fully productive” or “potentially useful and valuable for contributing to and serving the public health, safety and welfare.”

In Shelton, the planner did a “windshield survey”, which the court found troubling, and the record did not indicate that the planner took the steps outlined in the ERETC decision. In the end, the Shelton court held that the planner’s report was an unsubstantiated “net opinion” and failed to prove that the expanded area met the requirements of the LRHL. Township of Bloomfield v. 1101 Washington Street, Docket No. ESX-L-2318-05 (August 3, 2005), ERETC v. Perth Amboy, LBK Associates, L.L.C. v. Save Our Homes, et. al., docket no. BER-L-8766-03 (October 6, 2005), and Shelton v. City of Trenton, are cases decided over the past six months in Essex County, Middlesex County, Bergen County and Mercer County, respectively. In each case, the planning board’s expert failed to perform an adequate study of the properties in question resulting in a successful challenge to the approval of an area in need of redevelopment. Technorati Tags: : : :