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Delanco Township v. 325 Delaware Avenue, LLC

A-2836-07T3 (N.J. Super. App. Div. 2009) (Unpublished)

CONDEMNATION — A taking may be deemed in the “public interest” even if the entire community or even a considerable portion of the community does not benefit and it doesn’t matter if the taking benefits a private interest so long as it serves the public interest as well, but where a taking is only for the benefit of one person, a court may overturn it.

Three lots, lots 4, 5 and 6, were located side by side in a municipality. An unimproved road ran across lots 4 and 5, up to lot 6 where it ended and connected with the improved portion of a municipal road at the beginning of lot 4. The unimproved road provided the three lots with access to the public streets. The municipality sought to condemn a strip of land on lot 5 that would connect the unimproved portion of the municipal road to lot 6 and then improve the entire unimproved portion of the road running through all three lots. The action would have bisected lots 4 and 5 in a visually and functionally more dramatic manner than what existed with the existing unimproved roadway. The municipality claimed it considered this action as a result of threats by the owners of lot 4 and 5 to close the roadway due to a dispute with the owner of Lot 6. The owners of lots 4 and 5 brought an action against the municipality to dismiss the condemnation complaint.

The Law Division denied the lot owners’ motion and entered a final judgment in favor of the municipality permitting the municipality to exercise its power of eminent domain for the expansion of the roadway. The lot owners appealed and the Appellate Division reversed. It agreed with the lot owners that the municipality was exercising its power of eminent domain not for a public use, but for the benefit of one private person, the owner of lot 6. The Court noted that the United States Supreme Court, in the Kelo case, held that the taking of private property for the purpose of conferring a private benefit on a particular private party is unconstitutional. Here, the Court held that, in this rare case where a municipally had manifestly abused its discretion, the Court would overturn a public entity’s decision that a taking was for a public purpose. It granted that a taking may be deemed in the “public interest” even if the entire community or even a considerable portion of the community is not benefited. It also noted that a taking that benefits a private interest is permissible provided it serves a public interest as well. Based on the record before the Court, it held there was no sufficient showing that this particular taking benefited the public. It held that the municipality’s certifications never claimed that this particular road extension was necessary in order to provide public services to lot 6 or further the public safety.

The Court remanded the matter in order that a further record be developed to determine whether the taking served the public interest and contributed to the general welfare of the community in some way rather than solely to benefit the owner of lot 6, including any advantages that the taking would have on traffic flow in the community. It also held that the lower court erred in its denial of the lot owners’ motion to reconsider based on the lot owners’ contention that the path of the unimproved portion of the road across lots 4 and 5 reflected on the municipality’s tax map was incorrect when compared to earlier deeds and plans. It opined that the lower court failed to consider newly submitted evidence that sought to correct a factual mistake in the lower court’s decision not earlier raised and that amplified evidence already in the record. Finally, the Court ruled that even if the lot owners should have been more diligent in obtaining the information earlier, it could not overlook the fact that the new information raised a critical question, namely whether the proposed taking actually connected with the municipal road.


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