Property Owner's Challenge to Redevelopment Testing Dismissed as Moot
A New Jersey appellate court dismissed a property owner’s challenge to redevelopment activities in the Town of Kearny on the basis that the appeal was moot. Town of Kearny v. RLR Investments, Inc., Docket No. A-3174-07T2 (read the opinion here). The property owner, RLR Investments, owns and operates a commercial trucking terminal which is located in an area designated by the Town of Kearny as an “Area in Need of Redevelopment” under New Jersey’s Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to 73.
Kearny instituted suit in the Law Division of the Superior Court seeking the right to have its representatives gain access to RLR’s property to perform pre-condemnation testing as is permitted by New Jersey law. RLR opposed Kearny’s request on the grounds that RLR had previously filed suit in the United States District Court to preclude the condemnation and the pre-condemnation testing of its property. RLR also suggested that Kearny did not have the right to preliminarily enter the property because the property was not in a “blighted area” within the meaning of New Jersey’s redevelopment law, as clarified by the 2007 New Jersey Supreme Court opinion in the matter of Gallenthin Realty Development v. Borough of Paulsboro, 191 N.J. 344.
In the RLR matter, the trial court had entered an order permitting Kearny’s entry for testing, and the appellate court had previously denied RLR’s application for an emergent stay pending its appeal. By the time that this case was heard by the Appellate Division on appeal in May, 2009, the trial court’s order permitting entry had expired and all testing had been completed. Kearny therefore contended that the issues presented by RLR on appeal were moot.
The Appellate Division indicated that issues involving government’s eminent domain power might be matters of “extraordinary public concern” warranting review as a matter of public policy, even where the underlying issues are moot or otherwise resolved. However, because RLR had initiated suit in federal court to address these issues, and that matter remained pending, the State court concluded that the issues were better left for resolution in the federal action, and dismissed RLR’s appeal as moot.
