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Township of Allamuchy v. Progressive Properties, Inc.

A-987-02T3 (N.J. Super. App. Div. 2004) (Unpublished)

EMINENT DOMAIN—Where a municipality institutes a condemnation action in bad faith and not for a public purpose, such as to stop construction of affordable housing, a court will dismiss the condemnation complaint.

A local municipality sought to acquire land from an owner who planned to use it for affordable housing. The municipality alleged it had an aggressive campaign to acquire open space. It claimed that one of its objectives was to create a greenway to improve the scenic view of the municipality from the adjacent highway. Following unsuccessful negotiations with the owner, the municipality adopted ordinances authorizing acquisition of the land by eminent domain. The owner challenged the municipality’s authority to condemn its land, alleging that the acquisition was unnecessary for a public use and that the municipality had acted in bad faith.

The lower court found that the municipality’s condemnation was instituted in bad faith and not for a public purpose. It found that the municipality’s selection of the developer’s properties was arbitrary and capricious. The municipality had never sought to condemn properties suitable for open space preservation that had not been slated for multi-family or affordable housing development. Considering that the municipality was a large, sparsely populated community that was eighty percent undeveloped, the lower court did not believe the municipality’s claim of a public need for more open space. Instead, it found that the municipality’s plan was part of an effort to stop unwanted multi-family housing development and was in response to opposition from local residents. The developer’s land had not been identified in the municipality’s most recent conservation plan as an “important site” to be preserved nor was it proposed as open space in its most recent master plan. Additionally, the lower court noted that only a few months before the municipality attempted to seize the land, the local zoning board had concluded that there was more than ample open space to accommodate development. Thus, the Appellate Division upheld the lower court’s dismiss the municipality’s condemnation complaint as properly supported by the evidence.

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