Under the Local Redevelopment and Housing Law, a determination that the area is blighted or “in need of redevelopment” is required before the municipality may acquire the property by eminent domain for redevelopment. N.J.S.A. 40A:12A-8(c) and 15. Many places in the state, especially where the State Development and Redevelopment Plan encourages revitalization, have the conditions described in the statute. N.J.S.A. 40A:12A-5. One of the statutory “blight” criteria, N.J.S.A. 40A:12A-5(e), focuses on the “not fully productive” condition of the land. If the United States Supreme Court were to determine that redevelopment takings cannot take place where the sole purpose is to achieve the public purpose of economic development, arguments would no doubt be made that area in need designations based only on N.J.S.A. 40A:12A-5(e) are unconstitutional. Realistically, however, reported cases generally include multiple bases on which the area in need determination rests. Moreover, the courts have interpreted these criteria broadly, recognizing their remedial purpose, and have focused on the need to improve existing conditions in the area. For example, the New Jersey Supreme Court has stated:
… the legislative purpose is not confined to the elimination of “perceptually offensive slums.” … In recent years, recognition has grown that governing bodies must either plan for the development or redevelopment of blighted areas or permit them to become more deteriorated, obsolescent, stagnant, inefficient and costly. … Nor is it questionable that the ultimate taking of such land for redevelopment for the benefit of the community as a whole is a constitutional taking for “public use.” … [C]ommunity redevelopment is a modern part of municipal government. Soundly planned redevelopment can make the difference between continued stagnation and decline and a resurgence of healthy growth. Levin v. Tp. Committee of Tp. of Bridgewater, 57 N.J. 506, 537-541, app. dismissed, 404 U.S. 803 (1971).
The Appellate Division has also recently observed ” … the Legislature had recognized, as early as 1951, … that commercial blight embraced … all the adverse physical conditions of property that individually or in combination impeded its reasonable productivity and resulted in its negative impact upon the general welfare and economic well-being of the community.” Forbes v. Bd. of Trustees of Tp. of South Orange Village, 312 N.J. Super. 519, 525 (App. Div. 1998). Thus, the purpose of the statute, and each of the area in need criteria, is grounded in the general welfare, not only the economic advancement of the municipality that embarks upon a redevelopment program. For these reasons, a challenge to N.J.S.A. 40A:12A-5(e) based upon a narrow holding in Kelo, would be unlikely to succeed.
A few New Jersey cases have perceived that public takings were proposed primarily for a private purpose rather than a public one, and have rejected such takings. In Casino Reinvestment Development Authority v. Banin, 320 N.J. Super. 342, 354-59 (1998) (a non-redevelopment case) and Quagliariello v. Tp. of Edison, 2004 WL 842000, *7-8 (N.J. Super. 2004), they have rejected the condemnations. See Kelo at 40-45, 48-52, 52-54, 70-73 (discussing other states that relied upon their courts to monitor the use of eminent domain). The New Jersey courts can be expected to continue to provide an appropriate safeguard to ensure that the use of condemnation powers in redevelopment projects is primarily for a public use, consistent with this state’s constitutional and statutory standards, regardless of the outcome in Kelo.
Babineau is a partner at Wilentz, Goldman & Spitzer of Woodbridge. She is the leader of the firm’s redevelopment group, which has served as counsel to public and private clients throughout the state in connection with redevelopment projects.
