N.J. justices say towns can seize developers' land Ruling expands eminent domain Friday, December 08, 2006 BY KATE COSCARELLI Star-Ledger Staff Towns have the right to use eminent domain to seize property from developers and set it aside for open space, the New Jersey Supreme Court ruled yesterday.
The 6-1 decision allowing Mount Laurel to take over an old farm and stop a planned housing development opens a new legal avenue for preserving open space. It also expands the use of eminent domain, a hot topic across the country since the U.S. Supreme Court last year allowed towns to seize land and turn it over to private developers.
"The citizens of New Jersey have expressed a strong and sustained public interest in the acquisition and preservation of open space," the court wrote in an unsigned four-page decision.
The court said the Burlington County township's desire to limit development, overcrowded schools, traffic congestion and pollution was consistent with the "motive driving the public interest in open-space acquisition."
The decision was cheered by environmentalists and municipal officials who said towns have a new, important tool to preserve land. Builders said the ruling is unfair, and their lawyers said they are considering an appeal to the U.S. Supreme Court.
"It's a major victory for the appropriate uses of eminent domain," said Jeff Tittel, director of the state chapter of the Sierra Club. "It is an important tool to really stop inappropriate development. ... We just picked up some speed in the race for open space."
Builders argued that any development proceeding under current zoning laws can now be deep-sixed by enough political pressure. They said it could discourage builders from New Jersey projects.
"This is a monumental decision for builders. This is a death knell. It is going to create a tremendous chilling effect," said Jeffrey Baron, a lawyer in the case. He added it also can affect individuals building homes.
The case involved a 16-acre property in Mount Laurel. Developer Michael Procacci Jr. and his company, MiPro Homes of Medford, wanted to build 23 single-family homes, priced at $400,000 and up, in a complex called High Pointe Estates. The plan was consistent with zoning for the property, and the developer won approvals for the project.
MiPro had already dug a retention basin for storm water and started with utilities. But less than a month after those approvals were granted, Mount Laurel, citing eminent domain, condemned the property. The town received a Green Acres grant to help acquire the former farm -- one of the town's few remaining open parcels of land.
Invoking eminent domain to take property requires a public purpose. Most commonly, land seizures are for the construction of highways, schools, parks. Some towns have prompted controversy by using it to encourage private development.
Mount Laurel used a different approach, declaring the public purpose was to preserve open space. An appeals court panel ruled in favor of the town in August 2005. Yesterday the Supreme Court upheld that decision.
"It's a great day for Mount Laurel and all its residents," said Mayor Peter McCaffrey. "We are ecstatic that the case went in our favor."
DISSENT
The court did make one concession to the builder when it stressed towns must pay fair market prices for the land -- upgraded to reflect any development approvals and zoning possibilities. Justice Roberto Rivera-Soto dissented from the decision, saying it was not right to condemn land that private owners had under development. He said Mount Laurel gave "after-the-fact explanations of its public-policy basis for the condemnation." He added that the landowner should also be compensated for the potential profits on the property.
Rick Van Osten, executive vice president of the Builders League of South Jersey, a party in the case, said the ruling was a blow to all property owners.
"Private property rights are in the Bill of Rights, and it seems like they've taken a marker and x-ed them out," he said.
Land-preservation experts said the ruling was important in a state like New Jersey, which is already heavily developed. But they did not expect a flood of towns to use eminent domain to preserve open space because it is an expensive and time-consuming process.
"They will look to it and feel that, in the event they have to do it, they have law on their side," said Michele Byers, executive director of New Jersey Conservation Foundation.
However, William Dressel, executive director of the New Jersey League of Municipalities, said he expected towns to start exploring their options under eminent domain.
"This is one tool that can be used to preserve open space and farmland at a time when many residents feel that we are running out of it," he said.
Several towns in New Jersey, including Long Branch and Lodi, have struggled with eminent domain issues. An effort to reform the process has bogged down in the Legislature. One bill is scheduled to be discussed by a Senate committee Monday.
The court decision was one of the few remaining from the just-finished term of Chief Justice Deborah Poritz. She voted with the majority, along with current Chief Justice James Zazzali and Associate Justices Virginia Long, Jaynee LaVecchia, Barry Albin and John Wallace.
Kate Coscarelli covers the Supreme Court and legal issues. She can be reached at kcoscarelli@starledger.com or (973) 392-4147.
Interesting how ED can be used to take land from one developer and give it to another to increase tax revenues, (already upheld by Supreme Ct.)and now it can be used to take land and just preserve it for open space, so how come a PB cant consider tax revenues when approving or denying a proposed project. Seems contradictory to me.
I guess that a town council has different latitude compared to a PB, but I am really not sure.
Nonetheless, does that not mean that it is time that our Town Council did their job? Is it not time for the Town Council to invoke ED on that stinking property? Have we not played enough games with ireland and company? How many more gifts does the Supreme Court have to give us before the town fathers realize what it must do to protect itself?
I am totally puzzled by the entire political reaction to the prospects of having a Gigagchurch (a church with more than 10,000 antiicipated members) locating itself in our quaint little rural Township. It is sort of a self destructive - - - crash and burn mentality. Survival instincts are completely missing from the group psyche.
Thanks for finding and posting this little nugget. I haven't always totally agreed with your points of view in the past but I completely agree with you on this one. The difference in quality of life, traffic, environment, tax base, etc. between having this overblown project at 140 GPR vs. not having it is enormous. I've heard that we may need a new school and that this may be the best site for it. Why not acquire the site as open space and if it turns out to be the best site for a school the township is ahead of the game on that. The cost to acquire it is obviously a small price to pay to protect the public interest. Either as a school or a park, that site would be an asset. The law seems to allow its acquisition. If other towns can acquire property in order to preserve open space when there isn't a major disaster looming why can't RT do it when it has the even better reasons cited above?
