Redevelopment Designation Affirmed on Appeal

by: Joseph Grather
4 Dec 2017

A two-judge panel of the Appellate Division recently affirmed a decision of the Law Division (Ocean County) upholding a condemnation redevelopment designation in Tradewinds Marina, Inc. v. Borough of South Toms River (A-273-16T2) (unpublished opinion here).  In short, while the sole objecting property owner complained of some clear irregularities in the proceedings, the owner did not present any factual or expert testimony rebutting the opinion of the municipal planner that the area, and the marina property, were in need of redevelopment.

It was pretty easy to anticipate where the appellate court’s decision would land when it started with this summary of the property:

“[U]ntil October 29, 2012, when the property suffered extensive damage during Superstorm Sandy. The property had previously suffered from neglect. Several deteriorating and sunken boats, including an eighty-two-foot-long ferry, a tugboat, and a large wooden schooner had been abandoned on the site. Some of those vessels had discharged oil, gasoline, and other pollutants into the surrounding waters.  The New Jersey Department of Environmental Protection (NJDEP) imposed a civil administrative penalty of $115,000 upon plaintiff, due to the violation of certain environmental laws. In  addition, dilapidated pier and dock structures on the property had encroached upon a New Jersey Department of Transportation (NJDOT) right-of-way, and the NJDOT imposed civil penalties upon plaintiff due to this encroachment.”  (Slip op. at 3).

The “in need of redevelopment” designation was the result of an investigation authorized by the governing body and conducted by the planning board.  Owners within the study area were notified of the proceedings and the owner of Tradewinds Marina appeared with counsel at the planning board hearing to object to the designation.  Counsel was permitted to question the testifying planner (who was not the author of the report), and the owner also testified.  The planning board recommended that the entire area be designated in need of redevelopment.  Thereafter, the governing body held a hearing on the issue, and the property owner was permitted to testify and counsel was permitted to address the body.  The governing body resolved to designate the entire area in need of redevelopment.  The property owner filed an action in lieu of prerogative writs.

A trial was held by the Ocean County Assignment Judge.  The property owner testified at the trial.  Counsel argued that it was reversible error for the Planning Board to have limited cross-examination and to have precluded testimony from an architect who was expected to testify about future improvements to the property.  Counsel also argued that the members of the planning board did not know that eminent domain would be authorized if designated, and lastly that the planner’s report was an impermissible net opinion.  The Assignment Judge rejected all of these arguments and affirmed the designation.

The property owner appealed raising the same legal arguments.  The Appellate Division was “not persuaded by plaintiff’s arguments. We affirm the trial court’s order substantially for the reasons stated by Judge Ford in her thorough and well-reasoned opinion.” (Slip op. at 10).  Again, while there appears to have been some clear irregularities in the proceedings, the appellate court’s legal analysis starts with the familiar refrain:  A” decision by a municipal agency designating an area as in need of redevelopment under the LRHL is “invested with a presumption of validity.” Ibid.  It appears that the owner testified about what she was doing to ameliorate the alleged deteriorated and unsafe condition of her property, but did not offer evidence to rebut the testimony that the current physical condition of the property satisfied the blight standards.  And, the owner did not offer any expert planning testimony to rebut the opinions offered by the municipality.