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Saturday, March 29, 2008

Harrison Redevelopment Agency v. Anthony J. DeRose v. Town of Harrison and Planning Board of the Town of Harrison

02-25-08 A-0958-06T2; A-0382-07T2

These consolidated appeals address legal issues that have
been the subject of several conflicting unpublished opinions in
the Appellate Division and the Law Division. Appellant, a
property owner in Harrison who was sued in condemnation by the
Town's redevelopment agency, wishes to contest the blight
designation of his property under the Local Redevelopment and
Housing Law ("LRHL"), N.J.S.A. 40A:12A-1 to -49, and the
criteria of Gallenthin Realty Dev., Inc. v. Borough of
Paulsboro, 191 N.J. 344 (2007).
The trial judge ruled that the condemnee's defense was
time-barred, because he had not filed a timely action in lieu of
prerogative writs under R. 4:69-6 after the Town's governing
body had designated his property for redevelopment. Although
appellant had received notice by mail of the local planning
board's "preliminary investigation" of the proposed blight
designation under N.J.S.A. 40A:12A-6, he and others in the
proposed redevelopment zone were not individually notified when
the Town's Mayor and Council later adopted a resolution
approving that designation. Appellant contends that the notice
provisions of the LRHL unconstitutionally violate Federal and
State norms of due process, as well as the State Judiciary's
paramount authority over matters of practice and procedure.
We reverse, and hold that, unless a municipality provides
contemporaneous written notice that fairly alerts an owner that
(1) his or her property has been designated by its governing
body for redevelopment, (2) the designation operates as a
finding of public purpose and authorizes the taking of the
property against the owner's will, and (3) informs the owner of
the time limits within which the owner may take legal action to
challenge that designation, an owner constitutionally preserves
the right to contest the designation, by way of affirmative
defense to an ensuing condemnation action. Absent such adequate
notice, the owner's right to raise such defenses is preserved,
even beyond forty-five days after the designation is adopted.
In reaching this result, we save the LRHL from a finding of
unconstitutionality. We also harmonize the LRHL's notice
provisions with the terms of Eminent Domain Act, which in
N.J.S.A. 20:3-5 confers jurisdiction in condemnation actions
over "all matters" incidental to the condemnation, specifically
including the condemnor's "authority to exercise the power of
eminent domain."
We also apply this holding today in two companion
unpublished decisions, Harrison Redevelopment Agency v. Harrison
Eagle, LLP, et al., A-4474-06T2, and Harrison Redevelopment
Agency v. Amaral Auto Center, Inc., et al., A-3862-06T2.