Local Law Blogs

Designating Property For Redevelopment Using the "A" Criteria

Under the Local Redevelopment and Housing Law a municipality may declare private property to be blighted if “[t]he generality of buildings are substandard . . . dilapidated, or obsolescent . . . or are so lacking in light, air, or space,” and such conditions are “[c]onducive to unwholesome living or working conditions.” This is the first of eight enumerated criteria set forth in the statute, which is sometimes referred to as the “a” criteria (because it is codified at N.J.S.A. 40A:12A-5a).

 

In order to prove that property within a redevelopment study area meets the “a” criteria it is essential for municipal officials to do their homework and actually document findings of fact that support both prongs of the “a” criteria test. In 2005, the Appellate Division of the New Jersey Superior Court in case entitled ERTEC v. City of Perth Amboy, which is reported at 381 N.J.Super. 268, identified the types of data that need to be collected and analyzed in evaluating whether property satisfies the first prong of the “a” criteria - that is whether “[t]he generality of buildings are substandard . . . dilapidated, or obsolescent . . . or are so lacking in light, air, or space[.]” Among these data items are (i) land use and topographic information, (ii) environmental conditions (iii) building and fire code violations, (iv) exterior and interior building conditions and (v) building permit data. As for the second prong of the “a” criteria, that being the linkage between substandard, dilapidated, obsolescent or overcrowded conditions and “unwholesome living or working conditions,” the Court suggested in ERTEC that municipal officials undertaking a redevelopment study look at such things as “occupancy rates” within the study area. Indeed, if a “dilapidated” area, which may be “lacking in light, air, or space” is, nevertheless, a functional commercial, residential or mixed use neighborhood, it may not be declared in need of redevelopment under the “a” criteria.

 

More recently, on August 7, 2008, in an unreported decision entitled City of Long Branch v. Anzalone, the Appellate Division, among other things, examined the methodology of obtaining and evaluating evidence to support a redevelopment designation using the “a” criteria and the quality of such evidence. In that case, municipal officials conducted a “windshield” survey of exterior conditions of properties being considered for redevelopment using six assessment criteria derived from city and state building codes that included “broken windows; ‘deteriorating’ paint; exterior columns that were falling or rotten; masonry veneer that was cracked or chipped; structural parts like walls, roofs, stairs, porches, balconies, and siding that showed ‘evidence of deterioration’; and ‘evidence of apparent defects’ in gutters, leaders, drains, window frames and doors.” According to the city’s data evaluation methodology, a building that satisfied one or two of these criteria would be categorized as “fair” and a building that satisfied three or more of these criteria would be considered in poor condition. The Court in Anzalone found the city’s system to be wholly deficient criticizing the city’s procurement of data through a windshield survey and its examination of property characteristics that “might well be deemed more cosmetic than substantial.” The Court was also concerned about the lack any “expert opinion setting forth standards by which blighted structures should be gauged.”

 

In light of the foregoing, there is little doubt that the task of delineating a redevelopment zone using the “a” criterial is a formidable one that requires a clear methodology for obtaining and evaluating relevant data that establishes the required linkage between certain deleterious property characteristics and unwholesome living and working conditions.

Full post as published by New Jersey Law Blog on December 15, 2008 (boomark / email).