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Wilson v. City of Long Branch

Decided: June 16, 1958.

HARRY J. WILSON AND LUCY WILSON, ET AL. (EXCEPT PLAINTIFF, JESSIE A. HOWLAND AND SONS, INC.), PLAINTIFFS-APPELLANTS,
v.
CITY OF LONG BRANCH, A MUNICIPAL CORPORATION, DEFENDANT-RESPONDENT



On appeal from final judgment of dismissal of the Superior Court, Law Division.

For affirmance -- Chief Justice Weintraub, and Justices Heher, Wachenfeld, Burling, Francis and Proctor. For reversal -- None. The opinion of the court was delivered by Francis, J.

Francis

On February 15, 1955 the Mayor and Board of Commissioners of the City of Long Branch adopted a resolution pursuant to N.J.S.A. 40:55-21.1 et seq., requesting the planning board to make a preliminary investigation and to hold a public hearing for the purpose of determining whether an area of the city referred to therein was blighted. The area, which is located on the portion of the northwestern perimeter of Long Branch fronting on the Shrewsbury River and on a creek flowing into the river, was described as follows:

"Beginning at the intersection of the Shrewsbury River and Branchport Creek; thence eastwardly along the Shrewsbury River to the extension of Manhasset Avenue; thence eastwardly along Manhasset Avenue extended and Manhasset Avenue to Patten Avenue; thence westwardly along Patten Avenue to Florence Avenue; thence southwardly along Florence Avenue to Joline Avenue; thence westwardly along Joline Avenue to the westerly bank of Troutman's

Creek; thence northwardly along the westerly bank of Troutman's Creek to Atlantic Avenue; thence westwardly along Atlantic Avenue to Branchport Creek and along Branchport Creek to the point and place of beginning."

The board undertook the preliminary investigation and conducted public hearings on May 3, 17 and 25, June 8, 22, July 13 and August 2, 1955. On September 8, 1955 it adopted a resolution declaring the area to be blighted within the meaning of the statute. After receiving a copy of the resolution and report and reviewing the entire matter, on October 4, 1955, the board of commissioners approved the determination of blight.

On October 31, 1955, 27 days thereafter, the plaintiffs instituted this action in lieu of prerogative writ in which they sought a judgment that the resolutions of both boards are illegal and void because the Blighted Area Act is unconstitutional (for various reasons to be discussed) and because the proceedings before both bodies were not conducted in accordance with the requirements set forth in the act. The trial court sustained the municipal action and we certified the matter for review on our own motion.

I.

THE ISSUE OF CONSTITUTIONALITY.

Section 1 of the act, N.J.S.A. 40:55-21.1 defines a "blighted area" to mean an area

"wherein there exists any of the conditions hereinafter enumerated:

(a) The generality of buildings used as dwellings or the dwelling accommodations therein are substandard, unsafe, insanitary, dilapidated, or obsolescent, or possess any of such characteristics, or are so lacking in light, air, or space, as to be conducive to unwholesome living;

(b) The discontinuance of the use of buildings previously used for manufacturing or industrial purposes, the abandonment of such buildings or the same being allowed to fall into so great a state of disrepair as to be untenantable;

(c) Unimproved vacant land, which has remained so for a period of ten years prior to the determination hereinafter referred to, and which land by reason of its location, or remoteness from developed

sections or portions of such municipality, or lack of means of access to such other parts thereof, or topography, or nature of the soil, is not likely to be developed through the instrumentality of private capital;

(d) Areas (including slum areas), with buildings or improvements which by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals, or welfare of the community;

(e) A growing or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real property therein and other conditions, resulting in a stagnant and unproductive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare."

The legislation provides that if, after certain proceedings have been taken, a portion of a municipality is found to be blighted within that definition, the governing body "may, but shall not be required to, acquire the real property within the area by purchase, or by eminent domain proceedings, and may proceed with the clearance, replanning, development or redevelopment of the area as a public purpose and for public use, or the said governing body may, by resolution, agree that a private corporation may undertake such clearance, replanning, development or redevelopment in accordance with statutory authority and subject to the provisions of paragraph 1, Section III, Article VIII, of the Constitution." N.J.S.A. 40:55-21.10.

Community redevelopment is a modern facet of municipal government. Soundly planned redevelopment can make the difference between continued stagnation and decline and a resurgence of healthy growth. It provides the means of removing the decadent effect of slums and blight on neighboring property values, of opening up new areas for residence and industry. In recent years, recognition has grown that governing bodies must either plan for the development or redevelopment of urban areas or permit them to become more congested, deteriorated, obsolescent, unhealthy, stagnant, inefficient and costly. As a result, at least 38 states now have remedial legislation similar to that of New Jersey. Jacobs & Levine, "Redevelopment: Making Misused and

Disused Land Available and Usable," 8 Hastings L.J. 241 (1957). Even if there were no express constitutional sanction for redevelopment of the type described in our statute, ample authority to do so might be found in the well of police power. Manifestly, the purposes to be served are intimately related to the public health, welfare and safety and so are consonant with both Federal and State Constitutions. Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954); Sorbino v. City of New Brunswick, 43 N.J. Super. 554 (Law Div. 1957); Redfern v. Board of Com'rs of Jersey City, 137 N.J.L. 356 (E. & A. 1948); Ryan v. Housing Authority of City of Newark, 125 N.J.L. 336 (Sup. Ct. 1940); Romano v. Housing Authority of City of Newark, 123 N.J.L. 428 (Sup. Ct. 1939), affirmed 124 N.J.L. 452 (E. & A. 1940); Annotation, 44 A.L.R. 2 d 1414, 1420 (1955). As the former Supreme Court said in Mansfield & Swett, Inc., v. Town of West Orange, 120 N.J.L. 145, 150 (Sup. Ct. 1938):

"The state possesses the inherent authority -- it antedates the Constitution -- to resort, in the building and expansion of its community life, to such measures as may be necessary to secure the essential common material and moral needs. The public welfare is of prime importance; and the correlative restrictions upon individual rights -- either of person or of property -- are incidents of the social order, considered a negligible loss compared with the resultant advantages to the community as a whole. Planning confined to the common need is inherent in the authority to create the municipality itself. It is as old as government itself; it is of the very essence of civilized society. A comprehensive scheme of physical development is requisite to community efficiency and progress. * * * The police power of the state may be delegated to the state's municipal subdivisions created for the administration of local self-government, to be exerted whenever necessary for the general good and welfare. It reaches to all the great public needs; * * *."

For an early forward looking expression in a related field, see Tide-water Company v. Coster, 18 N.J. Eq. 518 (E. & A. 1866).

In the Berman case, supra, the United States Supreme Court dealt with the constitutionality of the 1945 Redevelopment Act of the District of Columbia -- an act quite similar

in scope to that now before us. Its validity was sustained with a broad expression of the vista of the police power:

"Public safety, public health, morality, peace and quiet, law and order -- these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power and do not delimit it. * * * Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river.

We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. * * * The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. * * *." 348 U.S. at pages 32, 33, 75 S. Ct. at page 102; compare Redevelopment Agency of City and County of San Francisco v. Hayes, 122 Cal. App. 2 d 777, 800-802, 266 P. 2 d 105 (Dist. Ct. App. 1954), certiorari denied 348 U.S. 897, 75 S. Ct. 214, 99 L. Ed. 705 (1954).

Moreover, if there were any doubt at the state level of the compatibility of the statute in question with our organic law, it would be dispelled by the 1947 Constitution, which contains specific approval and authorization of redevelopment projects. Art. VIII, Sec. III, par. 1 declares:

"1. The clearance, replanning, development or redevelopment of blighted areas shall be a public purpose and public use, for which private property may be taken or acquired. Municipal, public or private corporations may be authorized by law to undertake such clearance, replanning, development or redevelopment, * * *."

Thus we come to the more specific charges of unconstitutionality.

(a)

It is urged that the act violates Art. IV, Sec. VII, par. 4, of the 1947 Constitution, which demands that every law shall embrace but one object and that shall be expressed in the title. The argument is that the title contains three objects, to wit:

"An Act (1) defining 'blighted area,' (2) authorizing municipalities to determine that areas are blighted areas, and (3) to undertake the clearance, replanning, development and redevelopment of such areas." L. 1949, c. 187. (Insertions ours)

The standard prescribed for the title does not require that it contain a resume of the provisions of the act. Compliance exists when it expresses the general purpose and when all of the provisions of the legislation appear to be in furtherance of that purpose and appropriate to the end expressed. General Public Loan Corp. v. Director of Div. of Taxation, 13 N.J. 393, 403 (1953). In the present instance (1) the definition, (2) the authorization of municipalities to decide whether a particular area conforms to the definition, and (3) the authorization of municipalities to proceed to clear and redevelop the area are matters integrally related to the single objective, municipal improvement of blighted areas. State on Information of Dalton v. Land Clearance for Redevelopment Auth., 364 Mo. 974, 270 S.W. 2 d 44, 54 (Sup. Ct. 1954). Nor does the fact that section 10, N.J.S.A. 40:55-21.10, permits the governing body, by resolution, to agree that a private corporation may undertake such clearance, etc., require a different conclusion. The section does not confer a power which is beyond the orbit of the title. It simply specifies one method by which the municipality may "undertake [the] * * * redevelopment." No authority is granted directly to a private corporation.

(b)

The novel argument is presented that prior to actual condemnation, the act permits a taking of property without just compensation in violation of Art. I, par. 20, of the

1947 Constitution. Plaintiffs point out that N.J.S.A. 40:55-21.10 says that after a determination that an area is blighted, the municipality "may, but shall not be required to acquire the real property within the area by purchase, or by eminent domain proceedings * * *" and may redevelop it. And they urge that the "very determination of blight in itself constitutes a taking of property" because its market value is thereby lessened or destroyed, and with the threat of condemnation hanging over it, they cannot sell or improve it. In effect, they say that a statute is contrary to our basic law which permits a municipality to impair the value of property and restrict its use by a declaration of blight without requiring compensation for such loss. But this is not a taking in the constitutional sense. It is akin to the result which flows from municipal zoning. If some diminution in market value can be said to follow from a finding of blight inspired by the valid exercise of police power, it is damnum absque injuria. As Justice Heher said in Mansfield & Swett, Inc., v. Town of West Orange, supra:

"The principle is firmly established in our federal jurisprudence that injury to private property ensuing from governmental action in a proper sphere, reasonably taken for the public good, and for no other purpose, is not necessarily classable as a 'taking' of such property within the intendment of the constitutional guaranties against the deprivation of property without due process of law, or the taking of private property for public use without compensation. * * *

A limitation of private property rights in land to the extent reasonably necessary to meet a public exigency is justifiable under this sovereign power. Block v. Hirsh, 256 U.S. 135, 41 S. Ct. 458, 459, 65 L. Ed. 865. Ordinarily, a course of action may be deemed to be in the public interest when it fairly tends to promote the good of the community at large. State Board of Milk Control v. Newark Milk Co., 118 N.J. Eq. 504. And an ulterior public advantage may support 'a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use.' Noble State Bank v. Haskell, 219 U.S. 104, 31 S. Ct. 186, 188, 55 L. Ed. 112."

And see: Collins v. Board of Adjustment of Margate City, 3 N.J. 200 (1949).

A similar issue was raised in Bauman v. Ross, 167 U.S. 548, 17 S. Ct. 966, 984, 42 L. Ed. 270 (1897). Congress enacted a law "To Provide a Permanent System of Highways in that Part of the District of Columbia Lying Outside of Cities." It directed the formulation of a general plan by the Commissioners of the District for the extension of such highways and for the making and recording of a map showing such plan. And the further provision was made that after the filing of the map, no non-conforming subdivision of any land covered thereby should be admitted to record. An affected land owner charged that by reason of the language of the statute his property was taken without compensation when the map was filed. The United States Supreme Court rejected the claim, saying:

"The recording of the map under section 2 does not constitute a taking of any land, nor in any way interfere with the owner's use and enjoyment thereof. * * * The object of the recording of the map is to give notice to all persons of the system of highways proposed to be established by subsequent proceedings of condemnation. It does not restrict in any way the use of improvement of lands by their owners before the commencement of proceedings for condemnation of lands for such highways, nor does it limit the damages to be awarded in such proceedings. The recording of the map, therefore, did not of itself entitle the owners of lands to any compensation or damages."

And in Danforth v. United States, 308 U.S. 271, 60 S. Ct. 231, 84 L. Ed. 240 (1939), the same court, speaking in a similar vein, said:

"* * * Until taking, the condemnor may discontinue or abandon his effort. * * * A reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project. Such changes in value are incidents of ownership. They cannot be considered as a 'taking' in the constitutional sense." 308 U.S. at pages 284, 285, 60 S. Ct. at page 236.

To the same effect see Kean v. Union County Park Commission, 130 N.J. Eq. 591 (E. & A. 1941); Zurn v. City of Chicago, 389 Ill. 114, 59 ...


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