Appellate Division Affirms Town’s Right to Take Redevelopment Property

by: Michael Realbuto
14 Apr 2022

In New Jersey, redevelopment designations are often a precursor to the government exercising its eminent domain power. However, in order for the government to use eminent domain, it must first obtain a final judgment from the court authorizing the “right to take.” On April 6, 2022, in Lindenwold v. Jackson, et al., the Appellate Division affirmed the Borough of Lindenwold’s right to take a particular property and clarified the time frame to challenge a condemnation following a redevelopment designation. The facts of that case are as follows.

Lindenwold adopted a resolution (1) recognizing that certain areas and properties might qualify as “in need of redevelopment” and (2) authorizing an investigation to identify areas to be redeveloped in accordance with the Local Redevelopment and Housing Law. Lindenwold sent a notice of hearing to defendant, who accepted the notice sent by certified mail. The land use board recommended that the Redevelopment Area be deemed “in need of redevelopment.” In May 2017, the Lindenwold governing body adopted the recommendation, sending a copy of the approval resolution by certified and regular mail to defendant. The resolution advised that any property owners seeking to challenge the redevelopment designation should do so by filing an action in lieu of prerogative writ in the Superior Court within forty-five (45) days of receipt of the notice. Once again, defendant accepted the certified mailing at her address.

Thereafter, Lindenwold determined that it would acquire defendant’s property and filed an order to show cause and complaint seeking condemnation of the property. Lindenwold extended an offer of $22,000 to defendant for the purchase of her property. Defendant declined the offer and filed a motion challenging the redevelopment designation and requesting the Borough to “clearly define” the public purpose of the condemnation. The trial court ultimately granted the order for condemnation. The trial court found that the property owner had failed to timely object to the condemnation. The trial court also held that Lindenwold had demonstrated a public use for the condemnation by finding that the property and the area in which it was located was “in need of redevelopment.”

On appeal, the court affirmed the decision for the reasons expressed by the trial court. It held that defendant was time-barred from challenging the condemnation of the subject property because she did not appropriately object, pursuant to N.J.S.A. 40A:12A-6(b)(5) and R. 4:69-6(a), within forty-five days of receipt of the governing body’s May 2017 resolution. In sum, the Court found that the property owner had adequate notice under the law to challenge Lindenwold’s redevelopment designation back in 2017.

The Appellate Division’s decision makes it clear that property owners should carefully review any mailings received from a governmental entity regarding the redevelopment and potential condemnation of their property. In this case, the May 2017 resolution clearly stated that any property owners seeking to challenge the redevelopment designation should do so by filing an action in lieu of prerogative writ in the Superior Court within forty-five (45) days of receipt of the notice. Had the property owner been aware of that language, she could have filed a challenge within time and potentially overturned the redevelopment designation impacting her property. Notwithstanding the language in this case, redevelopment and condemnation law is a very nuanced and difficult area of law to parse through and understand. There is no better way to safeguard your property rights than to consult with experienced counsel. Our firm has specialized in these particular fields for over 50 years. If you are confronted with a redevelopment designation or a governmental taking and need guidance regarding the proper procedure to follow, please contact McKirdy, Riskin, Olson & DellaPelle, P.C. to speak with an experienced attorney. To view the entire Lindenwold v. Jackson, et al. decision, click here.