12/09/2006

N.J. court upholds eminent domain: Philadelphia PA Inquirer, 8/8/06

It said preserving open space is an adequate reason to take private property

By Emilie Lounsberry

In a decision highlighting the value of open space in the nation's most densely populated state, the New Jersey Supreme Court ruled yesterday that Mount Laurel acted properly when it seized a developer's land to preserve open space.

"We recognize ... that the citizens of New Jersey have expressed a strong and sustained public interest in the acquisition and preservation of open space," the state's highest court said in the 6-1 decision.

Jeff Tittel, director of the New Jersey chapter of the Sierra Club, called the court's action an "important victory" for people and municipalities concerned about the impact of sprawl on the dwindling amount of undeveloped land in the state.

"In the race for open space, New Jersey just picked up a lot of speed," said Tittel.

The case has been closely watched in the wake of last year's U.S. Supreme Court decision giving wider authority to local governments to use eminent-domain powers to seize private property for economic revitalization - not just for more traditional reasons such as building highways and government buildings.

That ruling triggered controversy and fears of cronyism - fears that elected officials could simply condemn private property so a developer could build condos or undertake some other lucrative project that could be touted as economic development.

Such concerns led more than 20 states, including Pennsylvania, to curb or prohibit the use of eminent domain for economic development. In May, Gov. Rendell signed legislation that generally prohibits the use of eminent domain for private development.

Yesterday's ruling came in a court battle over a 16.3-acre parcel owned by MiPro Homes L.L.C., which had obtained approval from the Mount Laurel planning board to build 23 homes on the site. A previous owner of the land had intended to build an assisted-living facility there, but MiPro bought the land and opted to build houses. The township then tried to buy the land. When MiPro refused, officials opted to use eminent domain to acquire the property.

Jeffrey Baron, who represents MiPro, said he has urged his client to ask the U.S. Supreme Court to hear an appeal of the ruling.

Baron said the decision gave unfettered power to municipalities to halt development. "Any municipality in New Jersey now can take any property that would be potentially for development," he said, even after a developer has gotten all approvals.

Baron said MiPro did everything required, and still ended up with its property condemned. "We did everything that we should do, and they took it," he said.

The decision came with a strong dissent from Justice Roberto A. Rivera-Soto, who concluded that the case presented an "improper exercise" of the power of eminent domain, which allows government to take private property as long as owners are fairly compensated.

"In my view, a judge's individualized and idiosyncratic view of what is or is not socially redeeming has no place in determining whether the sovereign's exercise of the power of eminent domain is proper," Rivera-Soto wrote.

Bill Potter, a Princeton lawyer who heads the Coalition to Stop Eminent Domain Abuse, said battles are under way in Mount Holly, Camden, Trenton, Newark and Long Branch over whether the municipality can condemn private property and turn it over to a developer.

Michael Mouber, Mount Laurel's township attorney, said he believes yesterday's ruling will encourage other municipalities to use eminent domain as an additional "tool" in efforts to preserve open space.

A state Superior Court judge had sided with the developer in the Mount Laurel case in 2005, but the township won in the Appellate Division, the state intermediate appeals court, in August 2005.

The New Jersey high court upheld the Appellate Division, which pointed to numerous statutes enacted over the years allowing the use of eminent-domain powers to acquire land for recreation and conservation.

"Even more telling," the high court said, "New Jersey residents have voted repeatedly for the issuance of state and county bonds to provide funding for open space."

That the municipality sought to limit development "does not alter our disposition of this case. The town's motive is not inconsistent with the motive driving the public interest in open space acquisition generally," the court said. The majority also concluded that MiPro should be compensated based on the fair market value of the land.

Potter said the ruling fine-tuned eminent-domain law by making it clear that such an action can commence even after a developer already has received approval for a project.

"It does clear up what was a bit of an ambiguity, which was whether municipalities may use eminent domain after a developer has obtained all their approvals, and the answer is yes," said Potter.

The Ruling and the Reaction


Excepts from the ruling
The state Supreme Court sided with an Appellate decision, ruling that:
"Through numerous statutes enacted over the years, the citizens of New Jersey have expressed a strong and sustained public interest in the acquisition and preservation of open space. Some of those statutes provide... the power of eminent domain to acquire land for recreation and conservation purposes."

"A township's motive to limit development and thereby limit overcrowded schools, traffic congestion and pollution that accompanies development is not inconsistent with... the public interest in open space."

Reaction to the ruling
"In the race for open space, New Jersey just picked up a lot of speed." - Jeff Tittel, New Jersey chapter of the Sierra Club

"Any municipality in New Jersey now can take any property that would be potentially for development," even after a developer has gotten all approvals. - Jeffrey Baron, attorney for developer MiPro

"It does clear up what was a bit of an ambiguity... whether municipalities may use eminent domain after a developer has obtained all their approvals, and the answer is yes." - Bill Potter, Coalition to Stop Eminent Domain Abuse

"If you own property in New Jersey, you are not immune from having the ownership of your land taken by force to preserve open space, whether there is a true plan for it or not and whether you are willing to sell it or not." - Richard S. Van Osten, Builders League of New Jersey



Philadelphia PA Inquirer: http://www.philly.com