Justices hear twist in eminent-domain dueling: Philadelphia (PA) Inquirer, 5/2/06

In this case, Mount Laurel wants to save the land as open space. The township was an affordable-housing battleground.
By Elisa Ung
In 2002, a developer had received a green light to build 23 homes and had begun digging when Mount Laurel [NJ] exercised eminent-domain powers to take the land for open space.

New Jersey's highest court yesterday heard the developer's claim of eminent-domain abuse in what observers say has become one of the most closely watched cases since the U.S. Supreme Court turned the seizure of private land into a national firestorm.

It is also one of the most unusual cases. Unlike most towns that seize property, Mount Laurel wants to preserve the 16 acres at Hainesport-Mount Laurel Road and Elbo Lane.

And many of the state's traditional critics of eminent-domain abuse support the township.

This could be the second time that Mount Laurel sets a precedent in state land battles. New Jersey's affordable-housing rules stemmed from state Supreme Court rulings centered on the township.

Bill Potter, a Princeton lawyer who heads the Coalition to Stop Eminent Domain Abuse, said it was the first eminent-domain case to go before the state Supreme Court since the landmark federal decision that allowed local governments to seize property for development.

Potter pointed to eminent-domain cases from Camden, Long Branch and other towns making their way through the court system. "Everyone's looking to this to get a preview of what will happen in those cases," he said.

Jeffrey I. Baron, an attorney for the Medford-based developer, Michael Procacci Jr., said that no matter how the state court ruled, he expected the case would eventually be appealed to the U.S. Supreme Court.

Yesterday, Baron told the state justices that the township had determined it wanted the land because of political whims, not proper planning procedures.

The township, he said, is improperly using condemnation to prevent the construction of single-family homes in order to prevent strain on its school system and other services.

Michael Mouber, Mount Laurel's attorney, said the township may have made mistakes in the process but wanted to preserve one of the last undeveloped chunks of land. It wants to use it as "passive recreation" but has no specific plans.

Mouber said voters and elected officials, not courts, should decide how much open land a township needed. He said it was the first case he knew of in which "a municipality is using its eminent-domain power exclusively to conserve property."

In 2004, a Superior Court judge sided with the developer, but Mount Laurel won an appeal to the Appellate Division last summer.

Potter, the eminent-domain activist, said open space was a legitimate public use. He said he hoped the court reserved broad policy judgments for cases that would displace homeowners or businesses.

Jeff Tittel, director of the state Sierra Club, agreed, saying a decision in the township's favor could be an important environmental victory. "Towns have been condemning lands for malls and private development, but not for open space."

Tittel said he saw irony in the township's having been the center of state Supreme Court rulings in 1975 and 1983 that allowed developers to sue towns to provide a fair share of affordable housing. "This could close the door on sprawl and protect open space."

Peter O'Connor, attorney for the original Mount Laurel plaintiffs and the executive director of the Fair Share housing center, was watching the case in the courtroom yesterday. O'Connor said he was worried that the case could harm rules that factor population growth into how much affordable housing a town is responsible for building.

"My concern is, can they use eminent domain to acquire properties that will prevent growth?" he said.

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