Trial Court Permits Redevelopment Challenge in West Windsor Despite Timeliness Objection
Mercer County Assignment Judge Linda R. Feinberg issued an opinion finding that the notice requirements in Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (App. Div. 2008), applied to a redevelopment study adopted by the Township of West Windsor for its Princeton Junction Redevelopment Area. In IC/L-A Washington Road v. Twp. of West Windsor, MER-L-1131-09, (Law Div. January 15, 2010), the plaintiff challenged a redevelopment study that had been adopted in December 2005, and a redevelopment plan that was later adopted in May 2009.
Plaintiff’s eight count complaint included claims that the redevelopment plan unconstitutionally limited residential development, violated COAH requirements, lacked evidence supporting the designation of the property as an area in need of redevelopment, incorporated unlawful fiscal zoning considerations, and failed to provide adequate notice. Plaintiff thereafter filed a motion for summary judgment to invalidate the in need designation and redevelopment plan as violative of DeRose and Gallenthin v. Paulsboro, 191 N.J. 344 (2007). Defendants responded and additionally filed a motion to dismiss, or alternatively for summary judgment, claiming that plaintiff’s action was filed out of time, or should be barred because plaintiff actively participated in the redevelopment plan hearings.
Plaintiff first argued that the forty-five day statute of limitations should be expanded because its claims are novel and important constitutional questions, and involve a significant public interest. The court rejected defendants’ argument that plaintiff should be estopped from raising a claim because plaintiff actively participated in the formation of the redevelopment plan, and that DeRose only applies once a condemnation has commenced. The court found that plaintiff’s participation did “not dilute the serious prevailing constitutional issues raised by the approved Redevelopment Study and subsequent Redevelopment Plan.” Additionally, the court stated that it is desirable to resolve notice and in need designation issues before condemnation proceedings are commenced.
The court also agreed with plaintiff’s arguments regarding the redevelopment study’s reliance on an “underutilization” standard under N.J.S.A. 40:A12-5(e). The court noted that every property in the redevelopment zone was summarily marked as “smart growth inconsistency”, and half of the properties were simply marked “underutilized.” This, the court found, was similar to the designations provided in Gallenthin, and supported the conclusion that the redevelopment study was insufficient.
Finally, the court found that the notice provided to plaintiff and the other property owners did not satisfy the basic elements of due process. The court relied on the DeRose court’s requirement that notice of an in need designation required identifying the relevant statutory requirements and the implications of a blight designation. The court found that the “equities thus weigh in favor of allowing plaintiff to proceed with its claim and challenge the in need designation based on the allegedly insufficient Redevelopment Study.”
The judge found the remaining issues to be moot until the in need designation was resolved. Because the parties had failed to provide the necessary transcripts for the court to rule on the merits of the designation, the court required the planning board attorney to provide transcripts and exhibits from all proceedings. The parties would then be provided an opportunity to submit supplemental briefs before the matter is scheduled for oral argument.
Read more about the DeRose case, in which the property owners were represented by McKirdy & Riskin’s Richard DeAngelis, Edward McKirdy and Anthony Della Pelle, on our New Jersey Condemnation Law Blog.
The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.
