On Jan. 14, 2021, Lt. Gov. Sheila Oliver, in her day job as commissioner of the Department of Community Affairs (DCA), sent a one-page letter to the mayor of Franklin Township in Warren County, rejecting his ill-conceived designation of 100-plus acres of prime farmland — continuously tilled for nearly a century — as “blighted.”
Every mayor and municipal governing body should read this letter before initiating the formal process for declaring private property an “area in need of redevelopment” — the statutory euphemism for “blighted area” — when there is no sign of “actual blight.” All too often the real motivation is to gain access to those extraordinary powers constitutionally limited for eradication of blight.
What makes Commissioner Oliver’s letter so noteworthy — and praiseworthy — is that DCA, which normally is something of a cheerleader for municipal redevelopment efforts, however misguided, issued it at all.
The Local Redevelopment and Housing Act, the 1992 successor to the 1952 Blighted Areas Act, provides that the DCA has 30 days to review and, if merited, veto a faulty redevelopment/blighted area determination. Otherwise, the designation — even if patently faulty such as the Franklin Township ruling — takes legal effect immediately.
Out of some 1,400 municipal blight designations statewide, only a handful have received scrutiny from the DCA, never mind a flat rejection as seen in Oliver’s Jan. 14 letter. In fact, although I have been active in opposing evidence-free blight designations for more than a decade, this is the first DCA rejection that I have seen.
Prominent among the extraordinary “blight fighting” powers conferred on municipalities is the coercive taking of private property — aka eminent domain or condemnation — for the “public purpose of redevelopment” by a “redeveloper” chosen by the governing body typically behind closed doors and without anything resembling a public process or competitive solicitation.
Tax abatements often in play
Additionally, to sweeten the pot, the chosen redeveloper, can be awarded a lucrative PILOT (“Payment in lieu of taxes”) agreement to finance the redevelopment through a long-term tax abatement that will zero out any tax revenues going to support local public schools. With a PILOT in place, reduced taxes go directly into the municipal budget, bypassing the school district — despite the increased school-age population resulting from the redevelopment.
This is a process founded upon the best of good intentions as enshrined in the state Constitution. It is also a virtual formula for cronyism, tempting corruption, as local government officials hand out these lucrative “redevelopment agreements” along with PILOTs for the redeveloper of their choice.
All too often local government officials declare demonstrably “non-blighted” property — such as the prime farmland in the Jan. 14 letter — as “blighted” not for the public purpose of combating actual blight but to obtain those extraordinary powers granted by the Constitution and by the 1992 Local Redevelopment and Housing Act.
The Jan. 14 Oliver letter refuted any basis for treating the farm as a source of blight. She noted that the property “is predominately located in Planning Area 4B, (Rural Environmentally Sensitive Area) in the State Development and Redevelopment Plan. The intent of this planning area,” she continued, “is to maintain the environs as large contiguous areas of farmland and to protect environmental resources through the protection of large contiguous areas of land.”
In other words, consistent with the state plan, productive farms should be off limits to intensive residential or commercial development. In this case the mislabeled redevelopment area has been farmed for 90-plus years and should stay that way, if New Jersey is to maintain a viable agricultural presence.
Moreover, as Peter Steck, among New Jersey’s pre-eminent land use planners, testified, this working farm doesn’t need to be “redeveloped” in order to eliminate blight where there is none. Why then did the land use board recommend to the township committee that it be declared a “redevelopment area”?
Steck found the answer in the transcript of the May 1, 2019 public hearing which “provides important information about the motivation of the Township, the Land-Use Board, and its consulting planner. By far the dominant discussion was about the benefits of the … [PILOT] agreement with a redeveloper. No discussion occurred about how the subject site was in fact blighted, and how its continuation as agricultural land was detrimental to the public welfare,” as required by the redevelopment law and the Constitution.
Steck reminded the township that the “constitutional foundation for the [law] is the elimination of blight. A PILOT agreement is just one of the financial tools authorized to eliminate blight. However, a PILOT agreement is not warranted or authorized for the purpose of subsidizing the cost of constructing a [1,300,000 sq. feet] warehouse on an unblighted parcel of property… The farm property simply does not qualify for a PILOT agreement because there is no need that the property be redeveloped.”
Indeed, as Steck further explained, the proposed warehouse developer “selected the farm property specifically because it is an attractive property that suits the developer’s needs. The developer then proposed a PILOT agreement to Township officials as a means of subsidizing its planned construction. And the Township, seeking to accommodate the developer in order to make a deal, is inventing a supposed blight that does not exist at the request of the developer.”
Honoring the planning process
The Oliver letter has done something else of note: It has resurrected the state’s oft-ignored planning process, stating: “The site is located within an agricultural development area in the State plan … And Warren County’s Comprehensive Farmland Preservation Plan identifies this parcel as a targeted farm for preservation with … the Franklin Township Comprehensive Farmland Preservation Plan, an element of its master plan …”
As if that were not enough basis for exempting the farmland from ersatz “redevelopment” masquerading as blight fighting, the commissioner’s letter also points out that the property has been identified “for preservation within the Townships Musconetcong Project Area,” thus to protect an exceptionally clean trout-bearing stream from the inevitable effects of run-off pollution.
In sum, Jan. 14, 2021 was a good day for the environment and farmland preservation through the enforcement of state, county and local planning efforts. Let us hope Commissioner Oliver’s letter is but the first of many careful DCA reviews of developer’ and local officials’ use of the state’s blighted area laws.