Case Law Summaries

Cherry Hill Palace, L.L.C. v. Cherry Hill Township

• Opinion Date: April 12, 2001
• Real Property Law
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REDEVELOPMENT; BLIGHT—In determining if a property is properly declared to be in need of redevelopment, a court can consider the availability of private capital to correct or ameliorate the blighted conditions.

A property was declared to be an area in need of redevelopment, as authorized by New Jersey statute. It consisted of two high-rise apartment buildings with 433 units on twelve acres of land located across from a major shopping mall and adjacent to a new development. There was no question that the property was in deplorable condition, was substantially vacant, and had been that way for at least ten years. The owner obtained site plan approval to renovate the complex, but never devoted any resources or took any action toward that renovation. The municipality’s governing body adopted a resolution directing its planning board to conduct a preliminary investigation and hearing as to whether the complex was an area in need of redevelopment. There was no disagreement that the buildings were in terrible condition and there was testimony that the property was “deplorable, an absolute disgrace, perhaps the worst in” the county. The property owner testified to a large personal investment and to an estimate that considerable additional money would be needed to complete a renovation. It also testified about several tentative agreements to sell the property, each of which fell through. On appeal, the property owner contended that the municipality’s determination must be set aside because it never found that the substandard conditions could not be cured by an infusion of private capital. The applicable statute allows the governing municipality to declare an area in need of redevelopment if it met any of seven conditions. There was no argument that it met three of those conditions. One of the conditions, applicable only to property owned by a governmental authority, included as a factor, that the property was “not likely to be developed through the instrumentality of capital.” The factors relied upon by the municipality did not include any such consideration. Nonetheless, the property owner pointed out that the legislative declaration accompanying the statute spoke about property, which without public effort, would likely be corrected or ameliorated by private effort. Accordingly, the property owner argued that this legislative finding “plainly requires that the municipality conduct an analysis of the availability of private capital or enterprise to correct or ameliorate the relevant conditions of deterioration before it can properly declare an area to be in need of redevelopment or in need of rehabilitation.” The Court recognized that when the Legislature has carefully included a term in one place and excluded it in another, it should not be implied where excluded, but nonetheless pointed out that such a rule, like all canons of statutory construction, is subordinate to the overriding principle that a statute should be construed to effect the intent of the Legislature. There was not much prior case law on the subject. The property owner relied on a dissenting opinion in a case which stated, “[t]o justify the statutory declaration of blight there must exist a failure or refusal of private capital or enterprise to acquire or assemble land for use because such acquisition or assemblage is too costly and involved due to both a diversity of ownership and the condition of title.” The majority in that case appeared not to reject the language used by the dissenter, however it also did not endorse the proposition. The Court in this case was willing to assume, for the purpose of discussion, that the majority in the earlier case was willing to accept the dissenter’s proposition under different facts. Nonetheless, it held that those facts were not present in this case. Further, the earlier case proceeded under one of the grounds for a declaration of a blight having to do with consolidation of lands that were “idle.” Here, the municipality sought to protect the public from living conditions in slums directly threatening health, safety, and morals. Further, the Appellate Division found ample support for the lower court’s conclusion that the property owner had demonstrated, through its action and inaction over the years, that it lacked sufficient capital or lacked the willingness to raise the capital to rehabilitate the property. Consequently, the Court upheld the declaration and finding of blight.

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