For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Jacobs, J.
The plaintiffs filed a complaint in lieu of prerogative writ attacking resolutions of the Planning Board and the Municipal Council of Jersey City which determined that a specified area within the City constituted a blighted or renewal area within the contemplation of N.J.S.A. 40:55-21.1. There were cross motions for summary judgment and the Law Division granted the plaintiffs' motion. The defendants appealed and we certified while the matter was awaiting argument in the Appellate Division. R. 2:12-2.
The specified area consists of space above the railroad tracks of the Penn Central Transportation Co. near Jersey City's Journal Square on the west side of Kennedy Boulevard.
The tracks run in an east-west direction beneath the boulevard. The space commences 23 feet above the ground and the railroad, which requires no more than 23 feet for its operations, has indicated its readiness to sell it. The land beneath is depressed 40 feet below street level and is occupied by the railroad tracks. There are no buildings in the specified area except a single commercial structure at the southwest corner which was built in 1955 and is occupied by J. M. Fields, a department store. This structure was erected in space above the railroad tracks at two levels, one below street grade and one at street grade.
The City is of course vitally concerned with the development potential of its important central business district known as Journal Square. To the north of the specified area it has already initiated a Civic Center project. To the east the Port Authority Trans-Hudson Corporation (PATH) has undertaken the construction of a 34 million dollar Journal Square Transportation Center. So far as the specified area itself is concerned, the City hopes to construct a municipal parking facility at a level below street grade and to induce private enterprise to construct either a commercial or a housing complex or both at street grade. The City was convinced that is was in no position to develop the area without the aid of private enterprise and was equally convinced that it could not successfully induce private enterprise to participate without the benefits afforded to it by renewal acts such as N.J.S.A. 40:55C-40 et seq. Accordingly, it set in motion the various statutory procedures which culminated in the resolution now under attack.
The first formal step taken by the Municipal Council was the adoption of an appropriate resolution under N.J.S.A. 40:55-21.2. The resolution noted that, pursuant to the cited statute, the governing body of any municipality having a planning board may provide for a preliminary investigation by the planning board of any area in order to determine whether it qualifies as a blighted or renewal area under N.J.S.A. 40:55-21.1. It then noted that the Mayor
had requested the Council to resolve that the Planning Board conduct a preliminary investigation and make its recommendations as to whether the specified area, described with adequate particularity, was a renewal area within the provisions of the appropriate statutes. And finally it set forth that the Municipal Council resolved that a preliminary investigation be made and that the matter be referred to the Planning Board "in accordance with the provisions of R.S. 40:55-21.1 et seq. "
After its receipt of the Municipal Council's resolution, the Planning Board prepared a map showing the boundaries of the area to be investigated and the locations of the various parcels of property located therein. Copies of the map were filed in the offices of the City Clerk and the Division of Planning and were available for public inspection. A date for hearing was fixed and notice thereof was sent to all persons interested in the parcels of property and was advertised in the Jersey Journal, a newspaper published in the City of Jersey City. Before the hearing date, written objections were filed with the Planning Board by Mr. Richard E. Friedman, the attorney for the plaintiffs acting on his own behalf and on behalf of the Jersey City Property Owner's Association and its President, Mr. Abraham Kravetz. A hearing was duly held on October 17, 1968 before the Planning Board and was attended by various persons including the attorney who had filed the written objections.
At the hearing Mr. Alan Canter, Director of Jersey City's Division of Planning, described in detail the area in question, noted that it had been under study by the Division for some time, and reported on affirmative findings of the Division as to whether the area was a blighted or renewal area within the contemplation of N.J.S.A. 40:55-21.1. He pointed out that the terms "blighted area" and "renewal area" may be used interchangeably (N.J.S.A. 1:1-2b) and that it is legally sufficient if any one of the enumerated criteria in the statute is satisfied. See Wilson v. City of Long Branch, 27 N.J. 360, 392, cert. denied, 358 U.S. 873,
79 S. Ct. 113, 3 L. Ed. 2 d 104 (1958). He referred primarily to the criteria set forth in paragraphs (c) and (e) of N.J.S.A. 40:55-21.1 which read as follows:
(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;
(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.
Mr. Canter stressed the obvious fact that the very presence of the railroad cut at Journal Square was in itself a blighting influence which had through the years substantially precluded the proper development of the area. He noted that the Division's concern was not with so-called air rights or airspace generally but only with the question of whether the designated space "above certain parcels of land now in railroad use" properly qualified as blighted land or as renewal area within the statutory contemplation. He cited N.J.S.A. 46:3-19 which explicitly provides that estates, rights and interests in areas above the ground may be validly created in persons other than the owners of the ground and "shall be deemed to be estates, rights and interests in lands." And addressing himself directly to the statutory verbiage in paragraphs (c) and (e) of N.J.S.A. 40:55-21.1 he noted that "[t]his land has stood in its vacant and unimproved state for a time in memoria", that because of its location, topography, lack of access, etc. it is not likely to be developed through the "instrumentality of private capital" and that lack of proper utilization of the area because of the attendant "conditions" is resulting in a stagnant and unproductive condition
of land potentially useful and valuable for "contributing to and serving the public health, safety and welfare."
Mr. Canter submitted excerpts from pertinent study reports including a 1966 report prepared for the Jersey City Redevelopment Agency by Larry Smith & Company of New York. That report specifically noted that the railroad tracks forty feet below ground level and the land surrounding the tracks owned by the railroad form a bowl and "[t]his bowl section of approximately eight acres has a blighting effect on the Journal Square area due to the fact that with the exception of the tracks used by the PATH, the land has remained undeveloped." It then went on to point out that although the Journal Square area had the highest valued property in Jersey City, with excellent transportation facilities and a densely populated trading area, it had not been developed to its commercial potential and that "[p]resent and proposed urban renewal action is directed towards strengthening Journal Square." After Mr. Canter's presentation, supporting statements in favor of blighting the specified area were made by Fred Babcock, President of Frederick M. Babcock and Company of Washington, D.C., a ...