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Court Rules That Towns Cannot Condemn Land Simply to Prevent Development
by Stephen M. Eisdorfer
The ever-increasing desire to prevent development has led to a rapidly acclerating governmental movement to condemn lands that might otherwise be developed. A new case, Township of Monroe v. Noonan, sharply restricts municipalities in their efforts to condemn land where the true municipal objective is simply to prevent development.
Summary of the Case
In this case, Monroe Township argued that it sought to condemn the subject property for "open space and park use." The property owners contended that the expressed municipal purposes were pretextual, and that the real purpose underlying the condemnation was simply preventing commercial development of the site.
The Appellate Division ruled that the Township failed to establish that there was any public need for the uses for which the condemnation was sought, and that the record supported the proposition that the stated municipal purposes were pretextual. Thus, it was concluded that no valid public purpose supported the Township's proposed condemnation.
The Import of the Case
This case is of enormous significance to the development community. Proposed condemnations for "open space" purposes are running rampant, especially given the new state monies being made available for condemnation purposes, and there has been a question as to whether the courts would accept the notions advanced by the property owners in Township of Monroe v. Noonan. First, it is usually difficult to convince a court to look beyond the stated purposes of a municipality, since municipal actions are presumed valid. Nevertheless, the Appellate Division allowed the property owners to demonstrate that the stated purposes were pretextual. Second, the court accepted the notion that the real purpose - simply preventing development - was improper.
The Questions to Ask
This case confirms the need to carefully study the record underlying the municipal action to determine whether it supports what the municipality is proposing. For example, municipal planning documents must be reviewed to determine whether there has been any prior identification of the land for a public park or some other public use. Moreover, an analysis must be conducted to determine whether a municipality already has ample parkland given its population. Designation of the property as a growth planning area on the State Plan, and/or inclusion within a sewer service area, may also help in resisting the condemnation. Lastly, the record of public meetings of governing bodies and planning boards must be reviewed to determine whether public officials have made statements demonstrating that the stated purpose is a pretext for the actual purpose of preventing development. Specific cases may also suggest the need to analyze additional questions.
It is likely that the New Jersey Supreme Court will ultimately weigh in on these issues, either because it decides to review Township of Monroe v. Noonan, or in some other case. It is nevertheless comforting that the Appellate Division has taken the opportunity in this case to tell the government that they cannot condemn land for the sole purpose of preventing development.
Stephen M. Eisdorfer is also a partner within the Land Use Division of Hill Wallack. A Member of the Board of Directors of the New Jersey State Bar Association's Land Use Section, he concentrates his practice in land use litigation, including Mount Laurel litigation and litigation involving the civil rights statutes.
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