Levin v. Tp. Committee of Tp. of Bridgewater

Haneman, J.

(dissenting). We are here confronted with a question of novel impression, i. e., the construction and application of a statute granting a municipality the power of condemnation of vacant, unimproved land, after a munici*546pal declaration of blight. It is to be noted that the condemnation is not for the elimination of a slum or the construction of residential accommodations.

Plaintiffs argue, inter alia, that the action of the municipality in declaring the land here involved to be blighted is unconstitutional in that the facts do not support a conclusion that there is a need to seize said lands for a public purpose and that in any event, the facts fail to meet the criteria embodied in the statute as a basis for the declaration of blight and the ultimate employment of the power of condemnation. Plaintiffs further argue that the declaration of blight is here not motivated by the declared policy of said statute but that the declaration of blight is being used for an ulterior and not public purpose and constitutes, therefore, a perversion of the statute. Accordingly, plaintiffs conclude that municipal declaration of blight is ultra vires, arbitrary, capricious and unreasonable. In final analysis, the questions projected by plaintiffs, regardless of how stated, classified or categorized, are — (1) Did the facts here present warrant a declaration of blight? and (2) Was the municipality’s blight declaration a subterfuge to accomplish results not contemplated and authorized by N. J. 8. A. 40:55 — 21.1, et 'seq ?

Mot only has this State not been confronted with these specific problems, but there are few, if any, cases reported in other states which have considered the precise questions under similar statutes. Some states have tangentially treated the present arguments but are not finally dispositive thereof. Cf. Schneider v. District of Columbia, 117 F. Supp. 705 (D. D. C. 1953) aff'd sub nom. Berman v. Parker, 348 U. S. 26, 75 S. Ct. 98, 99 L. Ed. 27 (1954); People ex rel. Gutnecht v. City of Chicago, 414 Ill. 600, 111 N. E. 2d 626 (Sup. Ct. Ill. 1953); Oliver v. City of Clairton, 374 Pa. 333, 98 A. 2d 47 (Sup. Ct. Pa. 1953); Crommett v. City of Portland, 150 Me. 217,107 A. 2d 841 (Sup. Jud. Ct. Me. 1954); Redevelopment Agency of City, etc. v. Hayes, 122 Cal. App. 2d 777, 266 P. 2d 105 (Dist. Ct. App. Cal. 1954) cert. den. sub nom. Van Hoff v. Redevelopment Agency, 348 U. S. 897, 75 S. Ct. 214, 99 *547L. Ed. 705 (1954); Hogue v. Port of Seattle, 54 Wash. 2d 799, 341 P. 2d 171 (Sup. Ct. Wash. 1959); Cannata v. City of New York, 11 N. Y. 2d 210, 227 N. Y. S. 2d 903, 182 N. E. 2d 395 (Ct. App. N. Y. 1962); Randolph v. Wilmington Housing Authority, 37 Del. Ch. 202, 139 A. 2d 476 (Sup. Ct. Del. 1958); Opinion of the Justices, 332 Mass. 769, 126 N. E. 2d 795 (Sup. Jud. Ct. Mass. 1955).

The entire section of the statute, N. J. S. A. 40:55 — 21.1, subparagraph (e) of which is here involved, reads as follows:

1. As used in this act, the term “blighted area” shall mean an area in any municipality wherein there exists any of the conditions hereinafter enumerated:
(a) The generality of buildings used as dwellings or the dwelling accommodations therein are substandard, unsafe, insanitary, dilapidated, or obsolescent, or possess any of such characteristics, or are so lacking in light, air, or space, as to be conducive to unwholesome living;
(b) The discontinuance of the use of buildings previously used for manufacturing or industrial purposes, the abandonment of such buildings or the same being allowed to fall into so great a state of disrepair as to be untenantable;
(e) Unimproved vacant land, which has remained so for a period of ten years prior to the determination hereinafter referred to, and which land by reason of its location, or remoteness from developed sections or portions of such municipality, or lack of means of access to such other parts thereof, or topography, or nature of the soil, is not likely to be developed through the instrumentality of private capital;
(d) Areas (including slum area), with buildings or improvements which by reason of dilapidation, obsolescence, overcrowding, faulty arrangement or design, lack of ventilation, light and sanitary facilities, excessive land coverage, deleterious land use or obsolete layout, or any combination of these or other factors, are detrimental to the safety, health, morals, or welfare of the community;
(e) A growing or total lack of proper utilization of areas caused by the condition of the title, diverse ownership of the real property therein and other conditions, resulting in a stagnant and unproductive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare.

N. J. S. A. 40:55-21.10 reads:

If the determination is that an area is a blighted area, the governing body of the municipality may, but shall not be required to, ac*548quire the real property within the area by purchase, or by eminent domain proceedings, and may proceed with the clearance, replanning, development or redevelopment of the area as a public purpose and for public use, or the said governing body may, by resolution, agree that a private corporation may undertake such clearance, replanning, development or redevelopment in accordance with statutory authority and subject to the provisions of paragraph 1, Section III, Article VIII, of the Constitution; provided, however, that the power of eminent domain hereinbefore conferred upon the governing body of the municipality shall not be exercised to acquire, for any of the purposes of this act, any property or interests in property owned or used by any public utility (as defined in section 48:2 — 13 of the Revised Statutes) in furnishing any commodity or service which by law it is authorized to furnish; and provided further, however, that in any eminent domain proceeding instituted by virtue of the power hereinbefore conferred, the value of any property sought to be acquired shall be fixed and determined to be no less than the value as of the date of the declaration of blight by the governing body either in the first instance or the date of final action by the governing body upon a report by a planning board.

It is to be seen that the “blight” referred to in paragraphs (a), (b) and (d) of N. J. 8. A. 40:55-31.1, is concerned with neighborhoods becoming “conducive to unwholesome living,” “untenable” or “detrimental to the safety, health, morals or welfare of the community” because of the deteriorating or deteriorated physical condition of existing buildings and improvements. These portions of the statute clearly concern the health, welfare, morals and safety of people — the individual members of the public. The “blight” referred to in paragraphs (c) and (e) concerns neighborhoods where there are no buildings or improvements or so few as to be inconsequential. These latter sections of the statute are directed at the “general public welfare” through improvement of the economic condition of the public by developing, stimulating and increasing the growth of new resources for the employment of capital and labor by private individual transactions. “Blight” as used in (e) has reference to a vacant or predominantly vacant area found to be detrimental to sound economic growth because it is “stagnant and unproductive.”

*549The first of the above categories is directed, as noted, at the elimination of a slum area, deteriorated or deteriorating housing, and the construction of adequate housing in place thereof. This objective constitutes a public purpose as it concerns the protection of the individual members of the public from living conditions in slums directly threatening their health, safety and morals. The existence, cause and cure of this type of blight are more easily discernible than they are in the second category. The public purpose of the second category is the improvement of the economic condition of the general public through the elimination of the lack of use of idle lands and the proper utilization thereof.

It is self-evident that the initial and crucial step to accomplish a “proper utilization” of an unimproved area is the acquisition of title by one desirous of employing the land for that purpose — and this is so whether the section to be ultilized is in a single or diverse ownership. It follows that the 'lack of utilization” at which the statute is directed and which allegedly results in a “stagnant and unproductive” condition has its genesis in the failure of private capital or enterprise to acquire or assemble land for development and improvement. To justify the statutory declaration of blight there must exist a failure or refusal of private capital or enterprise to acquire or assemble land for use because such acquisition or assemblage is too costly and involved due to both a diversity of ownership and the conditions of title. Such conditions must be the cause of and result in the frustration of the desire and willingness of private capital or enterprise to purchase such acreage. The basic cause then, of the “lack of utilization” of the area resulting in a “stagnant and unproductive” condition, which the statute seeks to eliminate, is the failure or refusal of private capital or enterprise to acquire title to a vacant area because ownership and title conditions are such as to make an investment in the land unfeasible or inadvisable. Only when there is such a failure or refusal, so caused, in the face of a desire or *550willingness of private capital or enterprise to so acquire does the need for municipal action arise.

Land is not stagnant in the sense that word is employed in the statute where the failure to acquire title results from the refusal of an owner to sell because he desires to preserve its character as vacant land, to hold for investment purposes or for other reasons satisfactory to himself.

The fact that it may consume less time or be less costly for a municipality to acquire title by condemnation than for an individual to pursue normal recognized methods of removal of clouds on title or of private negotiation for the acquisition are not objectives at which the statute is aimed. Neither convenience nor economy of time or finances for a private entrepreneur are elements justifying a proceeding looking toward a municipal condemnation through a declaration of blight. Accordingly, so long as private capital ox enterprise is proceeding with a bona fide acquisition or assemblage of land for utilization for any of the purposes permitted by the planned unit development, site review, subdivision, zoning and planning ordinances of the municipality, no stagnation exists. Private capital and enterprise must be accorded a reasonable opportunity to so acquire title before it can be said that there is a lack of proper utilization or that the land is stagnant.

The seizure of private property must be for the declared public policy, i. e., to terminate disuse and stimulate use. The statute may not be employed to control the type or manner of land use to which an area is to be put. These objectives must be attained under other statutes governing zoning, planning, subdivision, etc. Nor may it be employed as a vehicle to select the individual who will ultimately develop the land. Thus, the statute may not be used with the purpose of controlling the use of land or selecting the developer thereof or any purpose other than to make land available for a use authorized and permitted under other statutes'.

The statute, as here intended to be used, does not contemplate that the municipality will itself develop the tract *551but rather that it will be a conduit for the passage of title to a private entrepreneur selected by it who will agree to utilize the land. The harsh and extraordinary power of eminent domain is sought to be employed here, not for a public use for a public purpose, but rather for a private use for a public purpose. Appendant to such private use is the right of the private developer to obtain the future income and profits from the land so seized. Government is here taking land from one owner by force and giving it to another, on terms that may not benefit the former but will of necessity benefit the latter. The municipality is in effect acting as a landbroker on behalf of and representing a privileged private purchaser. In this aspect of the municipal relationship lies the inherent danger of an abuse of discretion. Where, as here, property is forcibly taken from one party for the purpose of being transferred to another, thereby excluding the consent of the owner and excluding all other prospective ultimate purchasers and developers except the one selected by the municipality, the facts which allegedly give rise to that municipal power should be closely scrutinized. The exercise of the power of eminent domain should not be permitted unless the substitution of municipal condemnation for private negotiation is clearly needed for the acquisition of title for an economic use of the land. The failure of private capital to develop land in fulfillment of a community economic need, must be the reason and not the excuse for the seizure of private property. Absent such a public need, the power of condemnation may not be employed.

There is no accusation nor hint in the present matter that the township officials are prompted to their action by anything less than what they consider for the benefit of the township. Nonetheless, municipal discretion may be abused absent a venal motive, by a declaration of blight for any purpose other than the alleviation of stagnation. In Kaskel v. Impellitleri, 306 N. Y. 73, 115 N. E. 2d 659, at p. 664 (Ct. App. N. Y. 1953), the court said:

*552If the main purpose of combining these two areas is not slum clearance, but merely to lend color to the acquisition of land for a coliseum under the guise of a slum clearance project, then the combined project is not authorized by statute, and a taxpayer’s action can be maintained to restrain it under section 51 of the General Municipal Law, Denihan Enterprises v. O’Dwyer, 302 N. Y. 451, 99 N. E. 2d 235. In that event, the courts would not be invading the administrative province, but performing their duty in limiting administrative officials, capable and public spirited as they may be, to spending public money for purposes authorized by law.

In Redevelopment Agency of City, etc. v. Hayes, supra, the court said at p. 127 of 266 P. 2d:

Public agencies and courts both should be chary of the use of the act unless, as here, there is a situation where the blight is such that it constitutes a real hindrance to the development of the city and cannot be eliminated or improved without public assistance. It never can be used just because the public agency considers that it can make a better use or planning of an area than its present use or plan. As said in Schneider v. District of Columbia, supra, 117 E. Supp. 716 “* * * it behooves the courts to be alert lest currently attractive projects impinge upon fundamental rights.”

Recent disclosure of the conduct of some public officials emphasizes the conclusion that in a world where polities is seldom absent from municipal administration there is a real and ever present risk that without a severe restriction of the power of municipal acquisition of property by condemnation, an individual without political connections runs the risk of having his property taken from him by force for the benefit of a better connected or more highly regarded individual. A prospective competitive purchaser can similarly be eliminated by the power of the municipality to later convey by a private transaction. That the owner may receive what at the time of taking may be considered reasonable compensation is, of itself, no excuse for a forcible taking.

The following cases express other and further reasons for the foregoing conclusions. They so adequately delineate the dangers attendant upon the power granted under comparable statutes and the measures which should be taken for the protection of the private owner and prospective purchaser *553that I see no reason to rephrase or paraphrase the language. In Schneider v. District of Columbia, supra, the court said at p. 716 of 117 F. Supp.:

These extensions of the concept of eminent domain, to encompass public purpose apart from public use, are potentially dangerous to basic principles of our system of government. And it behooves the courts to be alert lest currently attractive projects impinge upon fundamental rights. The reasoning upon the point begins with the basic concept of natural rights and of property as one of those rights. To secure those rights governments were instituted, says the Declaration, and to secure them governments may impose limitations upon them; moreover, by clear implication the Fifth Amendment authorizes the taking of private property for public use. But here is the end of government power. That the Government may do whatever it deems to be for the good of the people is not a principle of our system of government. Nor can it be, because the ultimate basic essential in our system is that individuals have inherent rights, and as to them the powers of government are sharply limited. There is no general power in government, in the American concept, to seize private property. Hence it is universally held that the taking of private property of one person for the private use of another violates the due process of law clauses of the Fifth and Fourteenth Amendments. The reasoning which applies to this right is the same as that which applies to other rights guaranteed by the Constitution.

Again, at p. 724:

But as yet the courts have not come to call such pleasant accomplishments a public purpose which validates Government seizure of private property. The claim of Government power for such purposes runs squarely into the right of the individual to own property and to use it as he pleases. Absent impingement upon rights of others, and absent public use or compelling public necessity for the property, the individual’s right is superior to all rights of the Government and is impregnable to the efforts of government to seize it. That the individual is in a low-income group or in a high-income group or falls in the middle of the groups is wholly immaterial. One man’s land cannot be seized by the Government and sold to another man merely in order that the purchaser may build upon it a better house or a house which better meets the Government’s idea of what is appropriate or well-designed.

And again at p. 720:

It is said that the established meaning of eminent domain includes measures for the “general welfare” and that new social doctrines *554have so enlarged the concept of public welfare as to include all measures designed for the public benefi,t. The difficulty lies somewhat in the unqualified philosophical declaration, but it lies more in the practicality that some person or persons must determine, if that be the rule, what is the public benefit. Therein lies the insuperable obstacle, in the American view. There is no more subtle means of transforming the basic concepts of our government, or shifting from the preeminence of individual rights to the preeminence of government wishes, than is afforded by redefinition of “general welfare”, as that term is used to define the Government’s power of seizure. If it were to be determined that it includes whatever a commission, authorized by the Congress and appointed by the President, determines to be in the interest of “sound development”, without definition of “sound development”, the ascendancy of government over the individual right to property will be complete. Such ascendancy would logically follow over the rights of free speech and press, it seems to us.

• In Gaimata v. Gity of New York, supra, Judge Yan-Yoorhis said in Ms dissenting opinion at p. 908 of 227 N. Y. 8. 2d, at p. 399 of 18.2 N. E. 2d:

It might be thought, perhaps, that in the march of progress there is no limit to the power of the Legislature even short of authorizing municipal officials to determine, through zoning or eminent domain, who shall be permitted to own real estate in cities and to what purpose each separate parcel may be devoted. The sound view is still, however, that due process includes substantive as well as merely procedural limitations and that under the mores of the day there are substantive limits to what municipalities can do with private property, even by means of statutes enacted under the spur of single-minded city planners imbued with evangelistic fervor. At some stage the rights of private property owners become entitled to be respected, even if their use of their properties does not coincide with the ideas, however enlightened, of the avant garde.

Neither the United States Supreme Court in Schneider nor the majority in Gannata disavowed the foregoing excerpts.

It becomes necessary to assay the testimony in the light of the foregoing. The facts adduced demonstrate that the statutory test for a declaration of blight has not been met and that the municipality’s action was unreasonable and constituted an abuse of discretion. The evidence discloses that the section of the township here involved, of an area *555of approximately 122 acres, was plotted into some 480 residential building lots in 1911. Additionally there is a 17 acre unmapped plot in the section. The major portion of the lots were thereafter sold to the public. Although there were subsequent resales of individual lots, out of 26 acres of delineated streets, but one was actually laid out on the ground and improved. The balance are “paper” streets. Only 18 dwelling units scattered mostly through the periphery of the section have been constructed. Quite patently, the 1911 residential development was premature and the anticipated improvement of lots failed to materialize. The land continued to lie idle and unimproved. The reason for the lack of utilization of the lots was compounded by the municipality, prior to 1962, in adopting a zoning ordinance which restricted the use of the land to residential purposes — again a use for which there was no demand. There is no proof, nor was it even contended that this so-called lack of utilization, antedating the year 1962, was attributable to a “condition of title [and] diverse ownership of the real property.” The actual reason for the area lying fallow from 1911 to 1962 is to be found in the fact that there was no demand for residential property. Approximately two-thirds of the entire municipality remains in a similar undeveloped condition. The lack of demand for the commodity rather than a title problem or divers ownership, caused the land to remain unimproved at least until 1962. ISTot until 1962 was the zoning ordinance amended to include the area here involved within a “regional business” zone and to exclude use for residential purposes. Thus, the municipality recognized and determined for the first time in 1962 that the “proper utilization” of the area was for commercial rather than residential purposes. It is conceded that there now exists a prime demand for said land for use as a regional shopping center. The municipality agrees that the land has such a potential, that it is properly and commonly now referred to as the “Golden Triangle.” It is the alleged lack of actual use for the erection of a *556regional shopping center which the municipality seeks to make the basis for a blight declaration. The inception of any alleged lack of “proper utilization” for that purpose upon which to bottom a finding that a “stagnant and unproductive condition” of the land existed must post-date 1962 as only since that date has the municipality permitted that type of utilization.

Additionally, the area was not suitable as a regional shopping center until it became accessible to motorists from large centers of population by construction of Interstate 287 which was opened to traffic in 1964-1965. Some time between 1962 and 1964 — the former being the date of initial availability of the area for regional shopping use under the zoning ordinance, and the latter being the genesis of actual physical accessibility of the area to the public, private capital became interested in the development of shopping centers and commercial businesses in said area and undertook to assemble land for that purpose. In this undertaking they were reasonably successful as is hereafter shown. The price paid for land more than tripled between 1964 and 1967, going from $7,000 per acre to a sum in excess of $25,000 per acre.

In 1965, Louis Schlesinger Company (Schlesinger), an agent of Yornado Inc. (Vornado) (Two Guys retail store), made an offer to defendant municipality to purchase the lands owned by the township in the area, for development as a shopping and civic center. These lands encompass over 47 acres and together with mapped streets, represent 60% of the land in this section. The proposal contemplated a consideration of $600,000 for the purchase and an immediate construction expenditure of $3,000,000. The offer was rejected after receipt of an advisory letter from Herbert H. Smith Associates (Smith Associates), planning consultants, who subsequently determined that the area was blighted. The letter, dated August 17, 1965, reads in part:

*557The proposal that the Schlesinger Company acquire the properties involved privately, without recourse to Township Participation under the New Jersey Redevelopment Statutes, should be studied in detail. While it might be preferable for the redevelopment not to require municipal financial involvement, this would only be true if all other benefits to the Township were equal. Problems in acquiring all properties desired may develop if the Township is not involved, but perhaps more important is the control which the Township loould have over the project and the financial return to the Township for the property it now owns. It would seem that these properties would take on substantial additional value if assembled into a single tract. This additional value would have to be measured against the cost of acquisition, including legal and administrative costs of acquisition of the remaining properties. Prom the standpoint of the Township control of the project, if the Township is not involved in acquisition, it can only regulate the project through the Zoning and Subdivision Ordinances. Boivever, with involvement, it could add to these regulations any further conditions which appeared reasonable and desirable through the sales agreement and deed restrictions.
ii?> * * * * * *
The Schlesinger proposal involves a “two Guys” unit of 115,000 sq. ft. as the primary initial developer on the site. While the stature of this organization has grown somewhat in recent years, it is not the type and quality of department store which I had hoped to see located in this area. It has always been my hope that the site would be capable of attracting a department store unit which would be of a type and quality which is not now available in the area, and in doing so would attract business which is now going outside of the area. “Two Guys” would, in my opinion, merely attract business which is not supporting the Somerset Shopping Center, stores in Somerville, and such establishments which are now found along Route 22 in the immediate area.
*■ * -!= * J!i * * *
At the same time, the Township should retain a qualified real estate appraiser to provide a report which would determine the following questions: (1) the market value of the present Township lands: (2) the likely acquisition cost of the lands not held by the Township; and (3) the market value of the overall tract once assembled. This information is basic to a determination of whether or not it would be best, from the Township’s pomt of vieto, to proceed as suggested by the Schlesinger Company, or as an alternative, to proceed with Township acquisition and subsequent re-sale to Schlesinger and Vornado. (Emphasis supplied)

Thereafter, early in 1966, Milton Wollman, an agent of E. H. Macy & Co. — Bamberger (Macy), department store entrepreneur, having acquired title to a number of properties *558from private individuals, made an offer to the municipality to purchase its lands for a consideration of approximately $621,000 with the objective of constructing a shopping center. The municipality tentatively accepted the offer subject to conditions and pursuant to N. J. 8. A. 40:60-26, scheduled a hearing to finally consider said offer. Contending that the offer had been tailored to Macy’s specifications, the present plaintiffs filed a suit contesting the sale. The municipality withdrew its acceptance of the Wollman offer prior to trial of that issue. The withdrawal was not nor is it now stated to be grounded on inability to convey title. The reason given in the municipality’s brief is that plaintiffs “successfully attacked its legality.” It is noteworthy that Wollman who assembled the land for the Garden State Plaza at Paramus — encompassing 110 acres, testified that neither the paper streets nor alleged conflicting title presented a hindrance to a development of the area. He stated that he was and is willing and satisfied to accept the municipal title, having searched the title. Wollman has also been active in other land assemblages for regional shopping centers.

In October 1966 the Planning Board adopted a master plan, also prepared by Smith Associates, which recommended that the most logical use of the area sub judice would be as a regional shopping center. In November 1967 in response to a request from the municipality as to “the best method of assuring the proper development” of a regional shopping center in the Golden Triangle area, special counsel advised that the “blight” method, N. J. 8. A. 40:55-21.1(e) offered an orderly and controlled means for development of the territory as a unit. The resulting power of condemnation, said counsel, would permit the preservation of space for “municipal * * * uses and assure the Township of the highest return on the sale of Us property, through the instrumentality of a subsequent unadvertised and private sale.” (Emphasis supplied). Smith Associates on August 17, 1965 in analyzing the Schlesinger proposal, as above noted, also stressed that employing the blight tactic would *559have the effect of increasing the “financial return to the Township for the property it owns” (lands which both Schlesinger and Wollman had theretofore sought to purchase). “It would seem that these properties would take on substantial additional value if assembled into a single tract.” On December 4, 1967, the Township Committee adopted a resolution directing the Planning Board to undertake a preliminary investigation as to whether the area was blighted. The directory resolution recited its predetermination of the existence of blight and the suggested result of such an investigation, as follows:

WHEREAS, there exists in a section of the Township of Bridge-water, bounded by U. S. Routes 202-206, Eighth Avenue, Interstate Route 287, North Bridge Street and U. S. Route 22, a lack of proper utilization of the area caused hy he condition of the title, diverse oionership of the real property therein and other conditions, resulting in a stagnant and unproductive condition of land potentially useful and valuable for contributing to and serving the public health, safety and welfare * * * (Emphasis supplied)

Erank W. Dittman, a member of the Township Committee, who was Mayor at the time of the blight hearings, testified that the object of the township committee was to obtain a “good, high quality store”; that he was aware of the continued interest of private developers in acquiring land and building in the area and that several were purchasing and assembling property for that purpose even during the blight hearings.

The Planning Board admittedly based its conclusion of “blight” upon the investigation and report of Smith Associates. It was disclosed upon examination of Carl G. Lind-bloom, Director of Urban Design and Renewal, of Smith Associates, who supervised the investigation and preparation of the report, that the information concerning the conditions of title and divers ownership was obtained from the Bridge-water Tax Assessor — an unreliable source — and not from a title search. Actually, no final title search of the County Clerk’s records had been received by the municipality by *560October 1969. No opinion was obtained as to the feasibility, expense or time required to clear title to any lot, a title to which was alleged to be doubtful. No inquiry was made of anyone as to the feasibility of a developer acquiring title to any of the property in private hands. None of the known owners were interviewed to ascertain whether they would sell and if so for what consideration. To the contrary, Wollman testified that he had received no refusals to sell. Those who had a willingness to purchase and develop were not interviewed. All of the conclusions contained in the Smith Associates report, in the foregoing respects were based upon speculation without any factual support.

The schedule of ownership included in the Smith Associates report, compiled from information obtained from the Tax Assessor, discloses:

OWNERSHIP ACRES PER CENT OE TOTAL
Streets 26.21 21.47
Township Owned (Exe. of lots claimed by Township but on assessment rolls) 47.64 39.03
Private Owners: 44.22 36.23
Wollman 14.48
Bridgewater Leasing 5.05
Atria 5.18
Chandler 1.68
Elks 2.46
Other Owners 15.37
Unknown 3.99 3.27
TOTALS 122.06 100%

Why streets should be catalogued as property owned is not clear as title to the bed of the streets is vested in abutting owners and cannot be conveyed separate from a conveyance of title by the abutting owner. However, accepting these figures as accurate, they disclose that the title to 81.36% of the acreage, including streets, is vested in five owners (Wollman and Bridgewater titles are now combined); 15.37% is vested in 55 parties and 3.99% is vested in "un*561known owners” — whatever that means. Surely, the ownership of 94.73% by 60 owners furnishes no basis for a finding that title is held by “divers” owners.

Except for the “unknown” owners who, according to Smith Associates, constitute 3.99% of the acreage, the principal thrust of the faulty “condition of title” is directed by the municipality at its own holdings. The record discloses the peculiar spectacle of the municipality denigrating its own title as an apparent excuse for not selling and as an additional item to bolster its proof that there are faulty titles in the area which contribute to a lack of utilization thereof because of the unmerchantability of the land due to condition of title. This proof it submits in the face of the fact that (1) in 1965 an offer was made to the municipality by Schlesinger for these holdings for $600,000 and an agreement to spend $3,000,000 on improvements; the offer was rejected by the municipality not because of the status of its title, which the offerer was satisfied to accept and is presently satisfied to accept, but because the purchaser was not the “type and quality department store” which it desired to have operated in the Golden Triangle; (2) in 1966 the municipality accepted an offer from Wollman to purchase its holdings, but subsequently reneged and withdrew its acceptance. The acceptance was withdrawn not because of the status of its title, which the offerer was willing to accept, but because of the suit which successfully contested the validity of the sale conditions on the ground that the conditions were tailored so as to exclude Yornado from bidding; (3) Yornado and Levin have expressed a willingness and continue to express such willingness to purchase the municipal lands and are presently willing to purchase and develop said lands for use as a regional shopping center. The bona fides of this offer are not questioned nor is the experience, capacity and ability of Levin to finance and construct a shopping center disputed. Levin is an admittedly sophisticated shopping center entrepreneur, having financed and constructed over 100 shopping centers along and adjacent to the eastern coast from Yer*562mont to Florida. Had the municipality made its lands available for purchase there would now exist no lack of utilization.

That the municipality has the discretionary right to refuse to sell its real estate holdings is indisputable. However, it may not exercise this discretion to refuse to sell said holdings in order to use the resulting lack of utilization of the area as a ground to obtain the power of condemnation of adjoining lands. It is plain that the municipality has chartered a course directed at wresting the power of purchase, sale and control of operation through the instrumentality of a blight declaration, from private enterprise and capital so that it may itself be vested with these powers. What the municipality has here contrived is a means to seize title not in order that dormant land may be utilized but to obtain additional value for its presently owned lands and to direct who shall conduct the merchandizing business to be conducted on the lands so seized. Restated, what the municipality seeks is to dictate the merchandizing methods, manners and practices to be observed and followed by the operator of a shopping center. It is plain that what it wants is a more “exclusive” department store than it anticipates plaintiffs will operate. So employed, the municipal action is a perversion of the statute. The purpose of the statute is to force the development and use of property, not to furnish control over the means of development and the method of discharging the use for which it was developed.

It is to be noted that the municipal zoning ordinance mandates only 10 acres for the purpose of establishing a shopping center. There is no testimony of the immediate need of the entire 122 acres for use as a regional shopping center. To the contrary, it is undisputed that there is no immediate demand for such a large area and that the development of the entire section as a regional shopping center will of necessity consume a period of years.

As an additional reason for a blight declaration defendants argue that such a declaration is necessary so that *563eminent domain may be employed to clear the titles. Aside from the fact that the statute was not enacted for this purpose, there is no necessity to proceed by condemnation to remove a cloud upon title. The alleged faulty titles ensuing from municipal tax foreclosure, titles of unknown owners, and any other questionable titles, could have long since been cured and can yet be cured in a normal accepted proceeding, i. e., either suit to quiet title or a new strict or in rem foreclosure. But says the municipality, even recognizing that these other remedies are available and that the same title searches would be required for condemnation as for any of the other foregoing suggested curative measures, the same parties defendant would have to be joined and served in either event, the condemnation proceeding is preferable because title can be positively obtained and possession can be obtained more expeditiously. This, says the municipality, results because condemnation prevents an establishment of title or redemption by a true owner and thus succeeds in eliminating the real owner from establishing and retaining his title. This statement discloses another of the ulterior purposes of the blight proceeding not encompassed in the statute. N. J. S. A. 40:55-21.1 is not concerned with furnishing an alternative remedy to presently existing remedies available to private or corporate persons to clear title, nor a substitute for a tax foreclosure. Use for any of such purposes constitutes a perversion of the statutory proceeding and an abuse of discretion.

The foregoing analysis of the evidence demonstrates that not only is the municipal declaration of blight not “supported by substantial evidence,” Lyons, et ux, et al, v. City of Camden, et at, 52 N. J. 89, 98 (1968), but to the contrary, the record discloses an absence of the statutory criteria upon which such a declaration of blight may be bottomed. Private capital has and is continuing to assemble title to lands privately held in spite of the dog-in-manger attitude of the municipality. After two short years, 1965-1967, of such private assemblage, the munici*564pality lias undertaken a proceeding for a blight declaration which is certainly a retardant rather than a stimulant for the expenditure of money for private development. No compelling community economic need has been shown here to warrant the exercise of the power of eminent domain. See Redevelopment Agency of City, etc. v. Hayes, supra, 266 p. 2d at p. 116. The municipality has exhibited a clear intent to frustrate private development of the Golden Triangle. Additionally, there can be no- doubt, that the municipality is attempting through a declaration of blight, to accomplish purposes other than an elimination of an alleged “stagnant and unproductive” condition. Accordingly, the declaration of blight is arbitrary, capricious and unreasonable and constitutes an abuse of the municipal discretion. I would reverse.

Justice Sohettino joins in this dissent.

For affirmance — Justices Jacobs, Francis and Proctor —3.

For reversal — Justices Haneman and Sohettino — 2.