On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-702-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Baxter.
In this appeal, we review the trial judge's determination that a resolution, which declared plaintiff's property to be in need of redevelopment, was neither arbitrary, capricious nor unreasonable. We reverse.
Plaintiff MIFCO, Inc. is the owner of property located on Highway 35 in Neptune Township (Block 559, Lots 2 and 3) where plaintiff has operated the Midway Ice and Fuel Oil Company for approximately seventy years. By resolution dated June 13, 2005, the Township's governing body authorized the Planning Board to investigate whether an area on both sides of the North Channel of the Shark River Inlet, which included, among others, plaintiff's property, exhibited the characteristics of an area in need of redevelopment as defined by the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -73.*fn1
The Planning Board authorized T&M Associates to investigate the area*fn2 and render a report. Public hearings were conducted on December 5 and 20, 2006. At the end of the second hearing date, the Planning Board adopted a resolution recommending the study area to be in need of redevelopment except for certain lots within the area that were only declared in need of rehabilitation. As for the excepted lots, the resolution declared that "in making its recommendation for an area in need of rehabilitation, the Planning Board made no conclusions or findings as to whether [the excepted lots*fn3 ] either meet or do not meet the statutory criteria for an area in need of redevelopment."
Of those lots excepted from the Planning Board's finding of a need for redevelopment were businesses on the west side of Route 35, known as Mac's Bait and Tackle Shop (Block 555, Lot 15) and Jack's Rib and Ale House (Block 555, Lots 7-14 and 16), and one business on the east side of Route 35, known as Pilot Electric Company (Block 559.01, Lots 4-8). Both Pilot Electric's property and plaintiff's property are located on and consume the entirety of a small area -- described as a teardrop-shaped island -- surrounded by Route 35 and Railroad Avenue, which is depicted in the following reproduction of part of a map included in T&M's report*fn4
Plaintiff filed a timely complaint in lieu of prerogative writs seeking to set aside the resolution that declared plaintiff's property in need of redevelopment. Plaintiff asserted that the factual record failed to support a finding that its property was in need of redevelopment and, also, that defendants' actions were arbitrary, capricious and unreasonable because Pilot Electric's property was excepted from redevelopment despite the allegation that its location and condition is essentially indistinguishable from plaintiff's.
In considering plaintiff's contentions, the trial judge accurately recognized that "[t]he power to declare an area in need of redevelopment is granted to local governing bodies in order to correct housing, commercial and industrial deterioration which is not likely to be corrected by private action," citing N.J.S.A. 40A:12A-2(a). The judge also observed that the Planning Board found that plaintiff's property met the criteria set forth in N.J.S.A. 40A:12A-5(d), (e) and (h).
In examining the record to determine whether there was evidence to support the Planning Board's finding, the trial judge concluded that the subsection (e) criteria were not met because the Planning Board relied upon an interpretation of subsection (e) struck down by our Supreme Court in Gallenthin v. Borough of Paulsboro, 191 N.J. 344 (2007). Because defendants have not cross-appealed, we need not consider that point further.
In considering the Planning Board's application of subsection (d), the trial judge distinguished Spruce Manor Enterprises v. Borough of Bellmawr, 315 N.J. Super. 286 (Law Div. 1998), upon which plaintiff greatly relied both then and now, and held that unlike Spruce Manor Enterprises, the problems associated with the subject property are easily determined from an external inspection of the property.
The subject property is a nonconforming parcel in a size of only .39 acres. An external view of the property illustrates that it is overcrowded with numerous refrigerated storage containers, fuel tanks, trucks, vans and other heavy equipment on the premises.
Given the small size of the property, the intensity of the land use, and the substantial amount of ingress and egress into the site from a major highway (Highway 35) the subject property posed a threat to the public health and safety. In this situation, there was no need for an internal inspection [as in Spruce Manor ...