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You Can't Take That: Judge Blocks Township's Bid To Declare Property As 'Area In Need Of Redevelopment' To Make Way For New Pharmacy



January 27, 2005

Salvatore Quagliariello was getting ready to retire. He had operated a gas station, towing company, and school and charter bus service from his property in Edison long enough. The gas station had not even been open for several years, due to ongoing remediation work to clean up soils that had been contaminated by leaking underground tanks. But the towing company was still in business, and so was the bus company, although due to his retirement plans, Mr. Quagliariello had decided not to replace several buses that he had sold because they were too old to use legally as school buses. Several residences on the property were also occupied by tenants, as they had been for some thirty years. The property was not beautiful, but the business was functioning, and assuming the soil cleanup didn’t get in the way, Mr. Quagliariello hoped to sell everything — six adjoining parcels, plus the businesses — so he could retire.

Meanwhile, the Township had issued permits for the construction of a Walgreen’s Pharmacy on a parcel diagonally across the street from the Quagliariello property. A public outcry put an end to those plans, however, so the Township had to look elsewhere. It looked right across the street, to the Quagliariello property.

The Planning Board, acting at the direction of the Township Council, asked its planner to examine the property. While he found no tax liens and no violations of building or safety codes, the planner concluded that the site’s layout was obsolete and that the site had been in an unproductive state for at least ten years. Based on his report, the Planning Board found that the Quagliariello property was an “area in need of redevelopment” within the meaning of the Local Housing and Redevelopment Law, and recommended that the Township Council make such a declaration. The Council agreed, began the process of acquiring the property, and designated as the redeveloper JSM at New Dover, LLC (“JSM”), which planned to construct . . . a Walgreen’s Pharmacy.

Against that factual background, when Mr. Quagliariello sued to have the Township’s plans to acquire his property set aside, Judge James P. Hurley did not hesitate to do so, finding that the Township had failed to point to substantial evidence to support its conclusion that it was an area in need of redevelopment. Quagliariello v. Township of Edison, No. L-2992-02 (Law Div. Mar. 31, 2004). In the absence of such evidence, said Judge Hurley, the Council’s decision was arbitrary, and the redevelopment served no legitimate public purpose. Instead, it constituted “nothing more than a mechanism used to acquire private property for a private purpose,” i.e., the construction of the Walgreen’s Pharmacy. Opinion at 13.

Government can take private property only for public use, i.e., some public purpose. Normally, redevelopment constitutes a legitimate public purpose, and a municipality’s decision to declare property to be an area in need of redevelopment is presumed to be valid, and will be upheld as long as there is substantial evidence in the record to support the decision. In Mr. Quagliariello’s case, however, Judge Hurley found that the evidence supporting the Township’s decision, as set forth by the report of the planner (who did not testify) and by the Township’s expert (a different planner who did testify), boiled down to “a pothole in the pavement, two boarded-up windows, a few cracks, and a gutter that needed to be cleaned.” Id. This paltry evidence, in combination with evidence concerning the failed bid to build a Walgreen’s across the street, the small size of the parcel to be taken and its ownership by just one party, the inclusion in the redevelopment area of two Quagliariello parcels that were concededly not in need of redevelopment in order to implement the redevelopment plan, the exclusion from the redevelopment area of other parcels owned by others, and the fact that a specific party (JSM) would benefit from the taking, showed that the Township’s actions in taking the private property in question were not motivated by any real public purpose, but rather by the “improper motive” of benefiting another private party. Id. at 9, 13.

Quagliariello serves as a reminder that despite the latitude given to municipalities to take property for redevelopment, government officials can and do overstep their constitutional bounds in their zeal to remake properties to fit in with their — or a redeveloper’s — vision of what is most desirable. The requirements of the Local Housing and Redevelopment Law, and of the Constitution, cannot be satisfied by a sort of linguistic alchemy that transforms potholes and sub-optimal traffic patterns into “blight.” A property is an “area in need of redevelopment” only when conditions there have become so bad that they meet the statutory criteria — not whenever town officials — or private parties — think redevelopment would be a good idea.