New Jersey Supreme Court Hears Argument on Eminent Domain

In the wake of Kelo v. City of New London, the world is more conscious of potential abuses of the eminent domain power by state or local governments.  Many watched via webcast as the New Jersey Supreme Court held oral argument on Monday, May 1, 2006, in the Mipro Homes v. Township of Mt. Laurel case.

In 2001, Mount Laurel exercised eminent domain on an approved, partially improved, residential subdivision owned by Mipro Homes, citing preservation of open space as the reason for the condemnation.  The developer challenged the condemnation justification as pretext for stopping residential development and thus for not being a valid public purpose.  The Builders League of South Jersey intervened in support.  LANDS member Robert Washburn of Flaster/Greenberg PC argued on behalf of the builders association on Monday.

The trial court had agreed that the “open space” justification was mere pretext and that the real purpose was “to prevent yet another residential development in the township already under severe development pressure.”  Mount Laurel appealed, and in August 2005 the Superior Court of New Jersey ruled that: (1) the township has statutory authority to condemn property for open space; (2) it may exercise its authority even though it does not presently have a plan to devote the property to active recreational uses; and (3) selecting residential development properties for open space is not an abuse of its eminent domain power.

Both the New Jersey Builders Association and NAHB provided amicus briefs to the high court on behalf of the developers, advocating a proper balance between the preservation of open space and the protection of private property rights.  The builders recognize that open space generally is a proper public use to justify condemnation.  However, the exercise of eminent domain here was not the result of a well thought out plan for the preservation of open space, but rather was the ad hoc reaction to a residential development that has fulfilled all of the requirements for land use approval. 

For more information, please contact Mary Lynn Pickel at mlpickel@nahb.com or 800-368-5242 ext. 8485.

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