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Court sides with property owners
(by Karen F. Mrnarevic - March 12, 2008)
On Feb. 25, the Appellate Division of the State Supreme Court handed down a decision that may forebode complications in the Borough of Emerson’s redevelopment plans.
The decision in the case, Harrison Redevelopment Agency v. DeRose, will make it easier for property owners whose property falls within an area designated as “in need of redevelopment” to contest the designation. At present, Emerson property owners Salvatore and Pauline Gebbia, have one such lawsuit filed against the borough, which the borough had previously hoped to dismiss, but which is now likely to proceed.
Prior to the new decision, the Local Redevelopment and Housing Law (LRHL), the state’s redevelopment statute, required on that a municipality formally notify property owners of the planning board’s initial public hearing on whether to designate the area in need of redevelopment. The Borough of Emerson complied with this requirement, and the Gebbias, in accordance with the law, were given 45 days following the announcement to contest the designation. However, according to the court in the
Harrison case, “laypersons who receive such notice cannot reasonably be respected to understand the drastic and permanent consequences of a municipality including their property within an area designated for redevelopment.”
According to Borough Attorney Philip Boggia, the result of the ruling will have an impact on how the borough handles the Gebbia suit. “We’re back to a point where we would be if somebody filed challenge within 45 days,” he said in a phone interview. But Boggia pointed out that while the Gebbia lawsuit will proceed and the property owners concerns will be heard, it “does not mean the redevelopment plan is invalid. … We feel the plan meets statutory criteria. … We just have to go though the process now to address the legal issues.”
At a council meeting on March 3, Councilman Ken Hoffman raised the issue of the
Harrison decision with regard to legal costs that the borough may expect to incur in handing the current suit, or in the event of additional lawsuits. He expressed concern that the borough’s chosen developer, Millenium Homes Inc., should be notified of the impact of the decision and asked to absorb the costs of litigation. He stated in an e-mail dated March 4, “the natural question… is who will be paying for the lawsuits [sic] that may very well occur due to this important ruling.”
Boggia believes that Millenium will cooperate with the borough on the matter. “It is in Millenium’s interest to participate because the outcome directly effects them,” he said. “They will be putting up the money to acquire properties… and [the borough] will hopefully have them involved in defending the plan.”
Boggia made a point of saying that the borough is not insensitive to the concerns of property owners like the Gebbias. “A lawsuit like this is not unanticipated… we certainly knew there would be people who would be opposed, for obvious reasons. I think when the governing body moved froward they knew that.”
However, he stated that the borough still feels that a comprehensive redevelopment plan is the best way to solve the problems afflicting the Emerson business district. In this case, “The public good is weighed against individual’s interest.” This assurance that the plan is for the betterment of the community as a whole is not winning over Salvatore Gebbia, who looks forward to having his day in court.
Gebbia is confident that he will prevail in proving that his property is not in need of redevelopment, and is certainly not “blighted,” a determining factor in the designation. “We have a viable business,” he said in a phone interview, “We pay our taxes.” Furthermore, said Gebbia, since the
Harrison decision was handed down, it is becoming clear to him that the Emerson Redevelopment is looking less and less viable. “It’s got to fall apart,” he said, “I think what [the borough] should do is scrap the redevelopment plan and let property owners make their own improvements.”
But Boggia reiterated that for now, the plan is progressing. “We are all interested in getting this redevelopment moving forward, and it will take time and energy,” said Boggia, “I still believe majority of the residents are behind the plan, and the governing body is behind it solidly.”
Karen F. Mrnarevic's e-mail address is Mrnarevic@northjersey.com.
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