Approximately one year ago, a Bergen County Court struck down a redevelopment designation finding that the Borough of Lodi did not prove by substantial credible evidence that certain property was in need of redevelopment. LBK Associates v. Lodi, Docket No. BER-L-8766-03 (Oct. 6, 2005). After reviewing the evidence, the court concluded that the report was “a vague criticism of the conditions at the complex based upon superficial observations” and not sufficient to have the area deemed in need of redevelopment. The Borough of Lodi appealed the trial court’s decision.
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.