Case Law Summaries

Hirth v. City of Hoboken

• Opinion Date: February 15, 2001
• Real Property Law
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REDEVELOPMENT; BLIGHT—A party need not file a written objection to a proposed blight determination in order to be entitled to seek judicial review of that determination.

A municipality’s governing council adopted a resolution authorizing its planning board to conduct a preliminary investigation of an industrial area to determine whether the area was “in need of redevelopment” and, if so, to prepare a redevelopment plan in accordance with the Local Redevelopment and Housing Law (LRHL). The board engaged a planning consultant who submitted a report concluding that part of the municipality was blighted because it “suffer[ed] from a substantial degree of long-standing vacancy of land, commercial and industrial building abandonment, lack of maintenance and a general sense of stagnancy and under-utilization.” The report identified specific blocks as being in need of redevelopment. It also submitted a second report setting forth proposals for revitalization of the area. That report suggested that the municipality “create a reasonable level of residential density tied to directly to provision of parking ... create opportunities for large-scale retail (such as supermarkets) and encourage development of much needed public parking garages.” The planning board adopted a resolution recommending that the redevelopment plan be accepted by the municipality’s governing council. The council held a public hearing that adopted the redevelopment plan and amended the municipality’s zoning map to incorporate the zoning changes set forth in the plan. The redevelopment plan created three zoning districts and permitted residential uses in two of them. The third zone included both large and small retail stores, restaurants, and professional business offices. The contract-purchaser of property in the third zone who intended to develop the property for residential uses brought an action in lieu of prerogative writ challenging the redevelopment plan on the basis that zoning solely for non-residential use was “arbitrary and capricious.” The contract-purchaser also claimed that this zoning resulted in an unconstitutional “taking.” The lower court granted summary judgment in favor of the municipality, ruling that the contract-purchaser did not have standing to challenge either the blight determination or the redevelopment plan because it did not file a “written objection” with the planning board as required by New Jersey statute. In the alternative, the lower court rejected the challenges on their merits. It accepted the consultant’s report as “substantial evidence” that the “area in question is, in fact, ‘blighted.’ It further ruled that the fact that the contract-purchaser was not afforded the use he desired, i.e. residential use, did not constitute a taking.

The Appellate Division concluded that the lower court erred in ruling that the contract-purchaser did not have standing to bring the action because “he failed to file a written objection to the blight determination and redevelopment plan.” Nevertheless, the Court agreed that the blight determination was valid. However, it did hold that the lower court erred in granting summary judgment dismissing the contract-purchaser’s “challenge to the part of the redevelopment plan which rezone[d] the property [it had] contracted to purchase solely for non-residential uses.” Basically, the Appellate Division believed that the lower court should have reviewed the full record of proceedings before the planning board and the municipality’s council to determine whether the blight determination was “supported by substantial evidence.” Summary judgment is not the appropriate vehicle for development of that record. Nonetheless, the Appellate Division reviewed the transcripts of the proceeding of the planning board and of council and determined that “they could not have any effect on the trial court’s decision that the blight determination [was] valid.” As to the issue of standing, the Court looked to N.J.S. 40A:12A-6b(7), which provides that any person who files a written objection to a determination by a municipality within forty-five days after the adoption of the determination shall “apply to the Superior Court,” and “the court may grant further review of the determination by procedure in lieu of prerogative writ… .” The Court concluded that the Act does not preclude an objector from challenging the blight determination solely because it failed to file a written objection with the planning board. Basically, the Act provides that if written objections are filed in connection with a hearing, a municipality is barred from taking any further action to acquire property by condemnation within a redevelopment area for forty-five days following its determination. “However, it does not expressly state that if a party failed to file a written objection to a proposed blight determination is prohibited from seeking judicial review,” and the Court saw no reason why it should be so construed. In New Jersey, the right to seek judicial review of an administrative action is of constitutional dimension. “Courts are reluctant to foreclose such review on procedural grounds such as lack of standing. ... One reason for this reluctance is that judicial review of administrative action may serve not only the private interests of the appellant but also broader public interests.” As to the substance of the matter, the Court pointed out that “a governing body’s decision that an area is blighted is ‘invested with a presumption of validity.’ A review of the facts on the record persuaded the Court that the board and the municipality were presented with substantial evidence upon which they could rely.

“When an area is found to be blighted, the adoption of a redevelopment plan is an independent municipal action which is governed by separate provisions of the ]LRHL].” Redevelopment plans must be adopted by ordinance and must include an outline for the planning, development, redevelopment, or rehabilitation of the project area. In addition, the plan must indicate proposed land uses for the project area. Further, no notice beyond that required for the adoption of ordinances by a municipality is required for the hearing on or the adoption of the redevelopment plan or subsequent amendments to it. Consequently, the procedures of the Municipal Land Law do not apply to adoption of a redevelopment plan. However, the LRHL contains its own procedures for adoption of a redevelopment plan. The governing body governing body has its choice of two procedures but, under either one, the only hearing required before adoption of the plan is a legislative hearing before the council. “Consequently, if an action is brought challenging a redevelopment plan, there ordinarily is no administrative record other than whatever report that planning board may have submitted to the governing body and a transcript of the quasi-legislative hearing before the governing body.” Therefore, a challenge to the validity of the redevelopment plan follows the same procedures that governs the challenge of the validity of a municipal ordinance. There is no requirement that evidence be presented providing a factual foundation for a municipal ordinance and a governing body does not ordinarily make any findings of fact to justify its action. Consequently, an action in lieu of prerogative writs challenging the validity of an ordinance is subject to different procedures that one challenging the quasi-judicial action of a municipal agency. If a municipality seeks summary judgment dismissing a complaint challenging the validity of an ordinance, “it has the same burden as any other civil litigant to show that ‘there is no genuine issue as to any material fact’ and that it ‘is entitled to ... judgment ... as a matter of law.’ Accordingly, part of the summary judgment dismissing the contract-purchaser’s challenge to the municipality’s determination that the industrial area was in need of redevelopment was affirmed but the challenge to the redevelopment plan was reversed and the matter was remanded to the lower court.

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