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New Eminent Domain Case Wends Way Through Courts 5.10.2006

By C.M. Mattessich

Was Kelo v. New London, in which the United States Supreme Court permitted municipalities to take private property and convey it to a private developer for the purpose of “economic development,” the Court’s last word on the sweeping power of eminent domain?
Some think that a pending New Jersey case may be the next to make its way
“all the way to the Supreme Court.”
The case has its roots in Mount Laurel.  After developer MiPro Homes LLC obtained all municipal approvals for a project of 23 single-family homes, and began its site work, that township determined to take the project’s land for use by the community as open space.
A trial court, and the Appellate Division, upheld the township’s taking.
In the lower courts, among other arguments, the builders’ attorney stressed that at the time the township initiated condemnation proceedings, the township’s master plan did not even designate the land’s zone as an area in which the township desired open space.
If a municipality were permitted to condemn property in these circumstances, he asked, “what would stop [it] from taking any property [simply] because they don’t like the use?”
The Appellate Division decided that condemnation proceedings could be maintained even if a town’s primary motive is to slow down residential development in a particular area.  It also found open space conservation to be valid justification for exercising eminent domain.
That decision engendered immediate, and strong, reaction.  In a September 2005 New Jersey Law Journal article, for example, attorneys Gary Forshner and Vincent Mangini contended that “the court’s distortion of the public use doctrine in Mipro is unnerving, and could open the floodgates to emotionally and politically driven land acquisitions, sometimes referred to as ‘ambush acquisitions,’ by municipal governing bodies.”
MiPro appealed the Appellate Division’s decision and, just last week, the New Jersey Supreme Court heard arguments.
Questions put to the parties’ attorneys indicated that justices would scrutinize the procedures followed by the township in the condemnation process.  Though the justices didn’t necessarily buy the argument of the builder’s attorney that the township had shown “bad faith” by taking the property after letting the builder go through approval processes, at least one justice (Barry Albin) indicated that the court might be inclined to consider whether the process was “fair.”
The township’s attorney claimed that the developer was given fair notice that the property was under consideration for condemnation, and also argued that the seizure was authorized under the state’s Green Acres program and in the public’s best interests.
Mount Laurel also argued that a town – and not a court – is in the best position to make determinations regarding open space.
Whichever party prevails in New Jersey, it is likely that the case will be appealed to the United States Supreme Court, which already has sparked significant public debate by its 2005 Kelo decision.
Unlike the Connecticut law at issue in Kelo, New Jersey law does not provide that “economic development” is automatically to be considered a valid “public purpose” justifying the exercise of eminent domain.  The New Jersey Constitution and the Local Redevelopment and Housing Law seem to require local findings meeting the substantially higher standard of “blight” to justify local government involving itself in a taking, and redevelopment, of private property.
As a result of the Kelo decision, towns everywhere – including in Cape May County – have begun considering what factors they will consider sufficient to justify takings within their boundaries.

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