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Township of Bloomfield v. 110 Washington Street

ESX-L-2318-05 (N.J. Super. Law Div. 2005) (Unpublished)

ZONING; REDEVELOPMENT —In order for a municipality to condemn a property it must find that the property designated for redevelopment is detrimental to public health, welfare or safety.

A company entered into a sale agreement to purchase property. The sale was contingent upon the company receiving a certificate of occupancy from the municipality. The company filed an application with the municipality’s planning board for approval to conduct a manufacturing operation on the property. The planning board advised the company that it couldn’t apply to the planning board, but was instead required to apply to the municipal zoning board of adjustment for a use variance. As instructed, the company applied to the zoning board for a use variance. It was granted, even though the zoning board also ruled that no use variance was required. It then directed the zoning official to issue permits and a certificate of occupancy for the company’s property. One month later, the zoning board rescinded its approval of the use variance on the basis that it lacked jurisdiction grant one in the first place. The company filed an action in lieu of prerogative writs challenging the board’s recession, and the lower court reversed the board’s decision and granted the use variance. Due to the delay in obtaining the variance, the company terminated the sale agreement to purchase the property. In the meantime, the municipal council adopted a resolution declaring the area in which the property was located to be one in need of redevelopment. The municipality filed a complaint and order to show cause to condemn the property. The property owner filed a cross motion to dismiss the municipality’s action, asserting that the municipality was seeking to take the property for a private use in violation of the United States Constitution.

The lower court granted the property owner’s motion and dismissed the condemnation action, but not because the municipality’s actions violated the United States Constitution. It found that the argument that the property was being taken for a private use lacked merit. It held that a municipality is authorized to condemn property for private development so long as the development serves a public purpose. It also held, however, that in order for a property to be condemned, a municipality must find that the property is detrimental to public health, welfare or safety. The Court found that there was no such finding in this case and that the municipality was seeking to condemn the property solely on the basis that it was vacant and underutilized. As a result, it concluded that the municipality’s condemnation was invalid without the requisite findings. It further found that a conflict of interest was present because the same attorney represented the planning board and zoning board during the course of the proceedings. Such representation is expressly forbidden by statute.

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