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Winters v. Township of Voorhees

320 N.J. Super. 150, 726 A.2d 1013 (Law Div. 1998)

REDEVELOPMENT—A governmental entity that desires to declare its own land as being in “need of redevelopment” must still show that it is unlikely that the land otherwise would be developed by private effort.

To entice a developer to build a state of the art ice skating facility there, a municipality designated a tract of land it owned as an area in need of redevelopment pursuant to N.J.S. 40A:12A-1 to -63. It contended that municipal ownership of the tract was all that was needed to make such a declaration. This view was based on an opinion received by the municipality’s planning board from counsel to a state improvement authority relying on subpart (c) of N.J.S. 40A:12A-5 which reads: “Land that is owned by the municipality, the county, a local housing authority, redevelopment agency or redevelopment entity, or unimproved vacant land that has remained so for a period of ten years prior to the adoption of the resolution, and that by reason of its location, remoteness, lack of means of access to develop sections or portions of the municipality, or topography, or nature of the soil, is not likely to be developed through the instrumentality of private capital.” The municipality argued that in light of how this language had changed from the prior statutory language, there were two distinct categories of land eligible to be designated as “areas in need of redevelopment.” One category is land that is owned by public entities. The second category is unimproved vacant land that is not likely to be developed by means of private capital. Essentially, the municipality argued that the qualifying language, “and that by reason of its location, . ” does not qualify “[l]and that is owned by the municipality.”

The Court found that the municipality’s interpretation did not comport with accepted rules of statutory construction. It is a rule of grammatical construction that separation of a qualifying phrase from antecedents by a comma evidences an intent that the phrase apply to all antecedents instead of solely to the immediately preceding one. Consequently, in the Court’s view, the qualifying phrase, “and that by reason of its location, . ” also applies to land that is owned by a municipality. Hence, ownership of the tract by the municipality is not itself sufficient to support a redevelopment designation. In addition, the Court, looking at the slim legislative history, opined that the Legislature did not want municipal governing bodies to declare tracts to be in need of redevelopment without there being a demonstration that it was unlikely that the property would be developed by private effort.


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