Skip to main content



D&M Asbury Realty, LLC v. City of Asbury Park

A-3022-03T5, A-3239-03T5, and A-3240-03T5 (N.J. Super. App. Div. 2006) (Unpublished)

REDEVELOPMENT—A court carefully analyzes nine claims by local property owners that a particular municipality’s redevelopment plan was invalid.

A municipality hired a planning firm to create a redevelopment plan to rehabilitate certain blighted areas. The planning firm drafted a redevelopment plan and the municipality submitted the plan to its planning board for review. The planning board issued recommendations and the municipality adopted the redevelopment plan, accepting some, but not all, of those recommendations. A major distinction between this redevelopment plan and prior redevelopment plans affecting the same property was that individual property owners would not have the unqualified right to redevelop their own land. However, each property owner could negotiate with the master developer for “subsequent developer” status and submit plans for redevelopment of their property as part of the larger redevelopment plan.

The affected property owners sued, claiming: (1) the redevelopment plan impermissibly deprived them of the right to redevelop their own property; (2) the municipality imposed an illegal building moratorium; (3) the redevelopment plan constituted inverse condemnation; (4) the municipality lacked support to include certain properties in this redevelopment plan that it had omitted from earlier redevelopment plans; (5) the municipality provided insufficient discovery to explain its decision to include certain property in the redevelopment plan; (6) the municipality improperly ceded unchecked legislative authority to a private entity (i.e. the master redeveloper); (7) the redevelopment ordinance violated the property owners’ equal protection rights because it unfairly discriminated between similarly situated property owners; (8) the municipality had an improper motive in including some property within the redevelopment plan; and (9) by relying on an unlicensed planner, the municipality’s ordinance was arbitrary and capricious. The lower court granted summary judgement for the municipality on each claim, and the Appellate Division affirmed.

The property owners put forth five bases for their claim that the redevelopment plan impermissibly deprived them of the right to redevelop their own property. (1) Prior redevelopment plans did not prohibit the property owners from redeveloping their own land. The Court rejected this argument, ruling that each redevelopment plan stood on its own merits; the property owners had several decades under previous redevelopment plans to redevelop their own properties but had failed to do so; and this redevelopment plan took a city-wide approach to redevelopment, not a parcel-by-parcel approach, allowing the municipality to impose redevelopment restrictions. (2) The prohibition against redevelopment by the property owners was ultra vires because the municipality lacked authority under the Redevelopment Law to impose such a restriction. The Court rejected this argument, ruling that the Redevelopment Law granted to the municipality all powers “necessary and convenient” to effectuate the redevelopment plan. (3) Prohibiting property owners from redeveloping their own land constituted a taking. The court held that a redevelopment plan is akin to zoning restrictions that regulate the use of property. Because the redevelopment plan did not deny the property owners of all beneficial uses of their property, it was not a taking. The imposition of restrictions on a property’s use (whether through zoning or a redevelopment plan) does not entitle the property owner to compensation. (4) Neither the redevelopment Law nor the Municipal Land Use Law (MLUL) restricts redevelopment to a single developer. The Court held that just because statutes do not exclude property owners from being redevelopers does not mean a municipality must permit them to be so. (5) Under the Redevelopment Law, the property owners were to be considered “applicants” for “redevelopment.” In rejecting this argument, the Court indicated that the statute is procedural in nature, and the redevelopment plan superceded certain procedural elements of the MLUL.

The Court rejected the property owners’ second claim that the redevelopment plan imposed an illegal building moratorium in contradiction of the MLUL. It held that redevelopment plans are subject to the Redevelopment Law, and the MLUL is not controlling. Further, because the property owners were entitled to apply for “subsequent developer” status, there was no absolute ban on the property owners from redeveloping their own property.

As to the third claim that the lack of a redevelopment schedule constituted an inverse condemnation by imposing an impediment to the use and development of their property, the Court held that mere planning in anticipation of condemnation is not a taking. Also, the property owners were not deprived of all beneficial uses of their property, and they could still apply for “subsequent developer” status.

Holding that legislative authorities may reconsider earlier findings, the Court rejected the claim that the municipality lacked the ability to include certain properties in the later redevelopment plan that it did not include in prior redevelopment plans.

The property owners’ fifth claim that the municipality provided insufficient discovery to explain its actions was also rejected by the Court. A municipality only needs a reasonable basis for adoption of a redevelopment plan, which was demonstrated by the evidence presented at trial.

The sixth claim alleging that the municipality improperly ceded unchecked legislative authority to a private entity was rejected. Here, the Court found that the redevelopment plan and ordinance set forth, with specificity, the limits of the master redeveloper’s authority. In any event, where a private entity acts on behalf of a municipality, it has the municipality’s obligation to deal fairly with the property owners.

The Court further ruled that the redevelopment plan did not violate any equal protection rights. The property owners claimed the redevelopment plan unfairly discriminated between similarly situated property owners. The Court held that the redevelopment plan was not vague for failing to identify a public purpose for each property, but rather the overall purpose of the redevelopment plan to rehabilitate the municipality was the public purpose and that purpose was not vague. Also, because the master developer and the municipality provided evidence at trial to explain why certain properties were not included in the redevelopment plan, the redevelopment plan was neither arbitrary nor unreasonable.

The Court similarly rejected the property owners’ claim that the municipality had improper motives when it included certain property in the redevelopment plan. Because the municipality’s stated intent to use the property was valid under the overall purpose of the redevelopment plan, the court refused to find an ulterior motive.
Lastly, the Court rejected the claim that the municipality acted in an arbitrary and capricious manner by relying on an unlicensed planner. In rejecting this claim, it found that the planner was an architect and planner of international renown and possessed the knowledge and ability to advise on a redevelopment plan, and did not misrepresent his status.


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com