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Levin v. Township Committee of Township of Bridgewater

Decided: February 22, 1971.


For affirmance -- Justices Jacobs, Francis and Proctor. For reversal -- Justices Haneman and Schettino. The opinion of the Court was delivered by Francis, J. Haneman, J. (dissenting). Justice Schettino joins in this dissent.


[57 NJ Page 509] In this action, plaintiffs Philip J. Levin and Bridgewater Leasing Corp. seek to invalidate a declaration that a certain land area in Bridgewater Township, Somerset County, is "blighted" under N.J.S.A. 40:55-21.1(e). After investigation and hearings, the Township Planning Board resolved that the area was blighted, and thereafter the Township Committee approved that resolution. Plaintiffs then proceeded by complaint in lieu of prerogative writ in the Superior Court, Law Division and, following an adverse result there, sought further review in the Appellate Division.

We granted the Township Committee's petition for certification before argument there.

The declaration of blight was made under subsection (e) of N.J.S.A. 40:55-21.1. Section 21.1(a) through (e) contains five separate definitions of "blighted area." If the condition of the land involved meets the specifications of any one of the five subsections the finding of blight is unassailable. Wilson v. Long Branch, 27 N.J. 360, 392, cert. den. 358 U.S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104 (1958). Subsection (e) provides that an area is blighted where there exists:

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.

Since the subsection seems to have been rarely used or referred to in judicial decisions, it seems worthwhile to look into its legislative origins. Cf. Jersey City Chapter of the Property Owner's Protective Assoc. v. City Council of Jersey City, 55 N.J. 86 (1969). The Blighted Area Act was adopted originally by L. 1949, c. 187, N.J.S.A. 40:55-21.1 et seq. At that time, subsection (e) was not included. In the same session of the Legislature the Local Housing Authorities Law was amended by L. 1949, c. 300, N.J.S.A. 55:14A-31 et seq. That amendment contained a legislative declaration regarding blighted areas to the effect that

there are also certain areas where the condition of the title, the diverse ownership of the land to be assembled, the street or lot layouts, or other conditions prevent a proper development of the land, and that it is in the public interest that such areas, as well as blighted areas, be acquired by eminent domain and made available for sound and wholesome development in accordance with a redevelopment plan, and that the exercise of the power of eminent domain and the financing of the acquisition and preparation of land by a public agency for such redevelopment is likewise a public use and purpose; * * *. (Emphasis added.) N.J.S.A. 55:14A-31(d).

This declaration was implemented by including in the definition of blighted area set out in that statute (N.J.S.A. 55:14A-32(e)) the precise language which is involved in this case and which, as will be noted, was added later to the 1949 Blighted Area Act, supra. Moreover, the Redevelopment Agencies Law, also adopted in 1949, L. 1949, c. 306 (N.J.S.A. 40:55C-1 et seq.) included the same subsection (e) in its definition of blighted area. N.J.S.A. 40:55C-3 (e). That statute likewise contained a legislative determination on which subsection (e) was undoubtedly based. It said that blighted areas or areas in the process of becoming blighted existed in the State "* * * by reason of inadequate planning of the area, or excessive land coverage, * * * or deleterious land use, * * * or the unsound subdivision plotting and street and road mapping, or obsolete layout, or a combination of these factors * * *." Further it declared that "* * * redevelopment of such areas will promote the public health, safety, morals and welfare, stimulate the proper growth of urban, suburban and rural areas of the State, preserve existing values and maintain taxable values of properties within or contiguous to such areas, and encourage the sound growth of communities." (Emphasis added.) N.J.S.A. 40:55C-2. The lack of a subsection (e) definition in the Blighted Area Act was discovered later and it was added by L. 1951, c. 248. The statement attached said:

The purpose of this bill is to make uniform the definition of "blighted area" as given in the act which this bill amends, in the local housing authorities law (P.L. 1949, c. 300), and in the redevelopment agencies law (P.L. 1949, c. 306). R.S. Cum. Supp. 40:55-21.1 (1951).

It may be noted from the above that the legislative purpose in enacting the related 1949 statutes was not solely to provide for slum clearance. It was to authorize the public agencies to function for slum clearance and urban, suburban and rural redevelopment, to acquire land for that purpose

and to make it available for redevelopment by private enterprise or by public agencies in accordance with approved redevelopment plans. Another purpose was to authorize co-operation with and the obtaining of funds from federal agencies. Obviously these enactments are in pari materia and warrant liberal judicial construction in order to effectuate the beneficent legislative design. See e.g., N.J.S.A. 40:55C-29. An important aspect of that policy, as indicated by the common inclusion of subsection (e) in all three statutes, as well as the legislative determinations quoted above. is that the lawmakers intended that land areas should be deemed blighted and made available for redevelopment when from the community standpoint " proper development " thereof was being prevented or impeded by title problems, diverse ownership, obsolete and impractical street and lot layouts and the like, any of which have resulted in a stagnant and unproductive condition of the land.

Although the Federal Housing Act of 1949 (Act July 15, 1949, c. 338) is not involved in the present situation, some of its provisions obviously have influenced the pattern of the New Jersey legislation. The Federal Act was adopted to remedy problems of shortages in available housing and to provide federal assistance for the assembly and clearance of areas which would be redeveloped primarily for residential uses. See Legislative History, 1949 U.S. Code Cong. Service 1550, 1563.

The 1949 Act authorized as a redevelopment project "(iii) land which is predominantly open and which because of obsolete platting, diversity of ownership, deterioration of structures or of site improvements, or otherwise substantially impairs or arrests the sound growth of the community * * * or (iv) open land necessary for sound community growth * * *." Act July 15, 1949, c. 338, § 110. Now 42 U.S.C.A. § 1460(c) (1) (ii), (iii) (1964). Although the Act, as initially passed, required that such land be redeveloped for "predominantly residential uses," subsequent amendments have provided that, if the local governing body determines

that redevelopment of such an area for predominantly nonresidential uses is "necessary and appropriate to facilitate the proper growth and development of the community in accordance with sound planning standards and local community objectives and to afford maximum opportunity for the redevelopment of the project area by private enterprise," certain federal financial aid may be extended. 42 U.S.C.A. § 1460(c), p. 146 (1964); 42 U.S.C.A. § 1460(c), p. 145 (1964); Housing Amendments of 1955, Act Aug. 11, 1955, c. 783; Housing Act of 1959, Pub. L. No. 86-372, § 413; and see Blachman v. Erieview Corp., 205 F. Supp. 797 (Ohio D.C., aff'd 311 F.2d 85 (6 Cir. 1962), cert. den. 372 U.S. 941, 83 S. Ct. 934, 9 L. Ed. 2d 967 (1963).*fn1

For an additional perspective of the New Jersey approach to problems of redevelopment, the legislative movement on the national scene may be contrasted. It has been said that the federal movement "suggests two predominant trends: (1) the expansion of the physical area of concern, and (2) emphasis on raising the level of efficiency in the functioning

of the urban mechanism. The scope of renewal has germinated from the 'individual' emphasis of 1934, to the 'project' emphasis of 1937 and 1949, to the 'neighborhood' in the 1956 Act, to the 'community' in 1959 and finally to 'entire urban areas.'" Comment, The Concept and Objectives of Urban Renewal, 37 S. Cal. L. Rev. 55 (1964). On the other hand, in our State, from the very beginning of the efforts to deal with the problem of blight, the vista has been a broad and comprehensive one. The Legislature revealed as its clear purpose not only the clearance, replanning, development or redevelopment of urban blight, but suburban and rural blight as well. See Wilson v. Long Branch, supra, 27 N.J. at 370.

There is no reported case in our State applying subsection (e) to a sizeable rural or suburban land area as a basis for a blight determination. However, it is plain from a reading of (e) that the land involved does not have to be a slum area. This Court has said that the statute "goes far beyond the elimination of the perceptually offensive slums"; also that an area does not have to be a slum to make its redevelopment a public use nor is public use negated by a plan to turn a predominantly vacant, poorly developed area into a site for commercial structures. Jersey City Chapter of the

Property Owner's Protective Assoc. v. City Council of Jersey City, supra, 55 N.J. at 97-98. In the last analysis, the statute's construction and application must "turn on the breadth of the objectives of the legislation and the commonsense of the situation." Id. at 100. Sensibly then it must be said that the Legislature intended by means of (e) to encourage the proper and sound growth of suburban and rural land, particularly open areas which because of the conditions described therein were stagnant and unproductive but which, in the judgment of the municipal authorities, were potentially useful and valuable.

All the New Jersey statutes referred to above, which as we have said are in pari materia, show a purpose to make possible a comprehensive, coordinated and scientific approach to eliminate the conditions retarding public use and to develop or redevelop the area involved in a unified and integrated manner. The lawmakers recognized that where an undeveloped land area was burdened with defective, questionable or unusual conditions of title, unsuitable lot layouts, diverse ownership, and outmoded and undeveloped street patterns, serious difficulties stood in the way of a unified development which would serve the health, welfare, social and economic interests, and sound growth of the community. They knew that fractionalization could be eliminated and the area dealt with as a whole if it could be treated as blighted and if the municipal power of eminent domain could be exercised to expeditiously bring it into such ownership as would permit realization of its maximum potential as part of an orderly community growth. The conclusion is inescapable that subsection (e) was added to the blighted area statute in order to make such a result possible.

The foregoing discussion brings us to the critical issue, i.e., whether the land area in question was properly the subject of a declaration of blight under subsection (e) of the statute.

The area involved as described by Lindbloom, the Township's planning expert, is roughly triangular in shape and

encompasses approximately 120 acres. For reasons to be mentioned later it was dubbed the "Golden Triangle" (Triangle). It is bounded on the west by Routes 202 and 206, on the north by Eighth Avenue and Interstate Route 287, on the east by North Bridge Street and on the south by Route 22 and Cloverleaf Drive. Block 4488 on the municipality map, in the most southeasterly portion of the area, contains the Somerville Inn, Elks Club property and a gasoline station. That block was not included in the blight declaration.

With the exception of Block 4463 which contains about 17 acres located in the extreme southwest portion of the area bordering on Cloverleaf Drive and which is now owned by the plaintiffs in this action, the entire blighted area is within a larger tract know as "Floral Park."

The Triangle has sparse vegetation, adequate surface drainage and a water table usually more than 10 feet below the surface. It contains 18 or 19 dwelling structures all of which were built prior to 1959 and most of which are situated on the periphery of the area where there is road frontage. Nine of these structures are located within Block 4463 of which plaintiffs assert ownership; the others are scattered throughout the Triangle. A few advertising signs and minor outbuildings are the only other existing structures. The vast majority of the land in the Triangle is undeveloped; a small portion is devoted to agricultural use. Despite the platted streets shown throughout the area on the maps, the only streets which actually exist are Sixth Street which is paved and a part of Lenox Avenue and Shasta Drive which are unimproved. The remainder are "paper streets." According to the report of plaintiffs' planning and urban renewal consultant, Isadore Candeub, of the total of approximately 25,350 feet of platted street length within the Triangle, only 4120 feet or 16% of the total is presently in use. The area is not served by sewers; water lines abut it on North Bridge Street; gas lines run across the area on Sixth Avenue and abut it on Routes 202-206.

Presently the area is zoned C-2, "Regional Business" and requires a minimum lot size of 10 acres. The primary uses permitted in the zone are "regionally oriented retail shopping centers" or malls and the customary accessory uses. Also authorized for the zone by special permit from the Board of Adjustment are hotels or motels, hospitals, public utility installations, schools and quasi-public uses. All of the experts in the case seemed to agree that the highest and best use for the property would be a large scale shopping center or mall. Two of the experts spoke of a center comparable to the Garden State Plaza and Bergen Mall at Paramus.

In 1911, Floral Park (which, as noted above, did not include Block 4463, title to which is now claimed by plaintiffs) was owned by Prudential Development Company. Prudential planned to develop the area as a residential suburb of Somerville and subdivided it into a gridiron pattern of small lots, blocks and streets. None of the major highways, Routes 22, 202 and 206, and 287, now circumscribing the area, existed at the time. Floral Park originally consisted of 1089 separate lots of 100' X 100' or 100' X 40' dimensions; portions of some of these lots were sold later, resulting in a number of 20' X 100' parcels. About 450 of these lots were located within the Triangle, and all but about 50 of these were conveyed by Prudential to other owners prior to 1935.

Although there were many transfers of title in the tract, very little residential development occurred. As indicated above, there are only 18 or 19 dwellings in the entire Triangle, 10 in the Floral Park area, and the other nine in Block 4463. Over the years, primarily through tax foreclosures, the Township acquired title to many of the lots. In the spring of 1968, when the blight hearings commenced, the tax records showed that the Township owned 268 of the 450 parcels in the Triangle. Thus by 1968 the Township owned more than 39% of the Triangle land and, with the 21.47% represented by the dedicated streets, controlled more than 60% of it. As will be noted later with more particularity, the validity of a number of these foreclosures

and of the Township's resulting title has been cast into doubt by a title examination which was completed while these proceedings were in progress. These Township holdings are scattered throughout the Triangle in every block but five. In addition, in April 1968, 29 parcels were listed on the municipal assessor's records as in "unknown" ownership.

In 1935, Prudential Development Company was dissolved. At that time, its trustees in dissolution gave an assignment of its interests in the remaining land to City Hall Land & Improvement Corporation. No deed was given and the assignment was not recorded until January 22, 1969, during the course of the present proceedings. On January 10, 1969, City Hall Land assigned its interests in the Triangle properties to Capital Property Associates (whose president, William Grimaldi, was associated with a developer interested in the Triangle). Capital claims title to whatever "property interests" were transferred by the assignment. Between the 1935 assignment from Prudential to City Hall Land and the 1969 assignment from City Hall Land to Capital Property Associates, the Prudential trustees in dissolution by two deeds recorded on March 6, 1963 had conveyed to the Township:

These various assignments and deeds create a dual claim of title to some 50 lots in the Triangle.

At the advent of the 1960s, the land in Floral Park had remained largely undeveloped and stagnant for many years. Routes 22, 202 and 206 and their interchange had been developed but with the development of Interstate Highway 287 in the early 1960s, the potential of the Triangle for commercial development thrust itself upon both the municipality

and developers. By 1964, its tremendous potential had brought to it the sobriquet "Golden Triangle" and developers set out to assemble land within it.

Although at this time much of the land had been acquired by the Township by way of tax foreclosures, many parcels were still privately owned. Two local developers succeeded in acquiring some contiguous parcels. Edward Chandler assembled nine parcels, aggregating approximately one acre in the extreme easterly portion of the Triangle; James Atria assembled 30 parcels, not all of them contiguous, comprising about five acres in the southerly portion of the Triangle fronting on Route 22. In July or August 1965, Milton Wollman, in association with William Grimaldi, through the Golden Triangle Corporation, began to accumulate parcels with the intention of developing a shopping center complex having Bamberger's or Macy's as a lead store. Ultimately, he acquired 14 1/2 acres, largely in Block 4463, most of which, as noted above, had not been in the original Floral Park area and so had never been platted and subdivided as extensively as the Floral Park portion of the Triangle. Finally, plaintiff Philip J. Levin, a major shopping center developer, and Vornado, Inc., owner of Two Guys Stores (and the latter's subsidiaries, plaintiff Bridgewater Leasing Corp. and Brick Stores, Inc.) combined by oral agreement in a joint venture allegedly to develop the entire Triangle; their main interest, however, was apparently the establishment of a Two Guys Store. By April 1968, Bridgewater Leasing had acquired five acres consisting of ten parcels mainly in Block 4463. As of December 1967, there were 55 private owners of parcels in the Triangle. Most of them (38) owned only one parcel; 12 owners held two to five parcels; and five owned nine or more parcels. In spite of what the trial court called "frenetic" efforts to assemble land parcels, and the tremendous increase in the sale price of acreage, in early 1968 according to the tax records, the property ownership appeared as follows:



Streets 26.21 21.47

Township Owned (exc. of lots

claimed by Township but on

assessment rolls) 47.64 39.03

Private Owners: 44.22 36.23

Wollman 14.48

Bridgewater Leasing 5.05

Atria 5.18

Chandler 1.68

Elks 2.46

Other Owners 15.37

Unknown 3.99 3.27

TOTALS 122.06 100%

There is no doubt from the record that from the early 1960s the Township was acutely aware of the increasing potential of the Floral Park area for commercial development which was being created by the construction of Interstate Route 287. In September 1964, at a joint meeting of the Township Committee and the Planning Board, consideration was given to the possibility of an urban renewal project for the area. Appearing at that meeting were four planning consultants, including Isadore Candeub and Carl C. Lindbloom (a representative of Herbert Smith Associates) both of whom, as it turned out, testified later in this case.

Lindbloom suggested use of the municipal authority under the Blighted Area Act, N.J.S.A. 40:55-21.1, and particularly subsection (e) thereof, to assemble and develop the area. Candeub at that time concurred with Lindbloom's view but later testified to the contrary in behalf of the plaintiffs at the Law Division hearing although he did not appear as a witness before the Planning Board. At any rate, the minutes of the September 1964 meeting (which are in the record) reveal that Candeub suggested

He said "his firm could do everything necessary for the township except appraisals and legal work; * * *" and that the land "should be developed as a unit, and it could be broken up later." In his opinion, "acquisition of fringe areas" would be required, except the Elks Club property.

On September 25, 1964, two days after that meeting, Candeub wrote to the Chairman of the Planning Board summarizing his earlier comments, indicating his interest in the selection of his firm to handle the redevelopment project and attaching a "typical" form of his firm's employment contract. Among other things, Candeub wrote: "It is our opinion that the area is eligible as a 'blighted' area under state statutes," and "[w]e are therefore suggesting that you initiate a program to redevelop the land in accordance with the state requirements." Not having been chosen as planning consultant, he turned up in this action as a witness for the plaintiffs with a new view that the area was not blighted within the meaning of the State statute. The trial court declined to admit this letter in evidence because it was not produced until the end of the hearing and Candeub was not cross-examined about it. But he had been cross-examined about substantially the same oral statements which he had made at the earlier meeting before the Planning Board and Township Committee. Moreover, since plaintiffs charge in this case that both the Planning Board and the Township Committee acted in bad faith in declaring the Triangle blighted in September and October 1968 -- four years after Candeub expressed his original opinion -- we believe the letter should have been admitted on that issue at least. Cf. Wilson v. Long Branch, supra, 27 N.J. at 387.

During 1965-1966, the Township received at least two proposals for development of the Triangle. The Louis Schlesinger Company, acting for Vornado, Inc. (Two Guys), proposed a regional shopping center, industrial park and civic center to be developed privately. Among other things, the Company offered to

[A]dvise and assist the Planning Board and the Township Committee in the investigation of "blight" and the blighted area hearings required by state statutes and in all other procedures required for the consolidation and redevelopment of the project area.

At the request of the Planning Board, Smith Associates, its planning consultant, considered the matter and in the course of an elaborate and seemingly dispassionate review of the proposal, recommended further study. In October 1965, the Board rejected the Schlesinger Company proposal.

In early 1966, the Golden Triangle Development Corporation (Wollman and Grimaldi's corporation) proposed to buy Township owned land in the Triangle on such terms and conditions as the municipality might require. Wollman proposed establishment of a retail shopping center with a principal occupier being a Macy-Bamberger's type of operation. The Township was interested in this proposal and tentatively accepted the Wollman bid subject to a number of conditions it imposed. For example, it required a 10 acre tract ownership -- as was set out in the zoning ordinance; also that "[t]he principal tenant of the * * * shopping center shall be a retail sales establishment of a quality and type equivalent to that of a standard Bamberger Branch department store." Explaining the conditions, the Mayor of Bridgewater at the time of the Wollman proposal, said the Township was "looking for a high type shopping center." He did not consider the Two Guys operation as having the same quality as a Macy-Bamberger's store. The conditions of sale, which were published as required by the sale of public lands statute, N.J.S.A. 40:60-26, and the fact that Wollman was the only owner of 10 acres of the Triangle at the

time, prompted plaintiffs to attack the proposed sale by a prerogative writ proceeding. Before hearing, the Township abandoned the effort to consummate a sale to Wollman's corporation.

It is worthy of note that following the termination of this litigation, counsel for one of the plaintiffs, in a friendly and cooperative fashion, wrote to the Township as an interested citizen saying that he joined in "wanting to see not only a substantial ratable brought in but also wanting it to be of a level and type that will make us all proud to have participated in its acquisition." The letter said also:

You are aware that there are many out-parcels in the general area which could cause problems for any purchaser. You are also aware that some of the titles which allegedly belong to the Township are in question. It would seem to me that you might wisely exercise some of the powers vested in municipalities, such as in the field of urban renewal, which would permit you to acquire titles at fair prices and put together a total package with which you could approach all available bidders, but on your own terms and according to the best interests of the Township.

In October 1966, the Planning Board adopted a Master Plan, prepared by Smith Associates, which recommended that the most logical use of the Triangle would be a "major regional shopping center." In the consultants' view, "[s]uch a center would attract business from a very extensive trade area due to the outstanding access it would have to all elements of the regional highway system."

Thereafter, the Township engaged special counsel to furnish advice on how best to develop the Triangle as a regional shopping center. This resulted in a lengthy opinion letter of November 30, 1967 which, after a review of the situation, concluded that N.J.S.A. 40:55-21.1 offered an efficacious procedure for orderly and controlled development of the Triangle as a unit. The view was expressed that the diversity of ownership and the condition of titles qualified it as blighted under N.J.S.A. 40:55-21.1(e); also that the "blight" route would enable the Township to judge developers'

proposals on the basis of community interest and not solely by the highest bid test.

On December 4, 1967; undoubtedly as the result of that legal opinion which was compatible with the views previously expressed by Lindbloom, Candeub, the Schlesinger Company and counsel for one of the present plaintiffs, the Township Committee, by resolution pursuant to N.J.S.A. 40:55-21.2, instructed the Planning Board to make a preliminary investigation as to whether the Triangle was a blighted area under subsection 21.1 of the statute. In preparation for the public hearing required by subsection 21.4, the Planning Board commissioned Smith Associates to study and evaluate the area with respect to the existence of conditions warranting a declaration of blight. The study and evaluation were made under the supervision of Lindbloom; his report was completed in April 1968 and was thereafter submitted to the Planning Board which fixed June 12, 1968 as a public hearing date.

At the hearing, the Lindbloom report was submitted and orally summarized by the author. It was his opinion that the Triangle area was blighted within the meaning of subsection (e) of the statute. In his view,

Plaintiffs, through counsel who represented them at the hearing, requested a 30 day adjournment to study the report. In addition, counsel represented that they wished to present expert testimony in opposition to a declaration of blight at a later date. For example, counsel for Bridgewater Leasing Corp. said:

We are here to suggest to this Planning Board that we will join with Mr. Levin in presenting to you through experts, expert witnesses,

planners, shopping center experts, the kind of development that this land needs and should have, a development which should come about by private enterprise without the necessity of blight declaration * * *.

We would suggest to you that you * * * await the opportunity for us to present to you additional testimony by experts of the kind I had described so that you ...

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