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The Township of Monroe v. Noonan

A-1443-99T1, A-1512-99T1, and A-1515-99T1 (N.J. Super. App. Div. 2001) (Unpublished)

CONDEMNATION; PUBLIC PURPOSE—While public sentiment may be considered in formulating a Master Plan or enacting a zoning ordinance, it is not a proper factor in condemnation.

A ten acre undeveloped parcel was located in a residential district. Only one commercial use, a prior non-conforming automobile service station, was located within the zone. A number of applications were made for commercial development of the site, but they were all either denied, withdrawn, or dismissed without prejudice. The municipality then considered acquiring the site, because of the “diverse and nonconforming nature of the applications that the Board of Adjustment was receiving and the expressed preference of area residents for a park rather than commercial development.” Eventually, the municipality adopted an ordinance to acquire the site through eminent domain. Purportedly, this was in furtherance of its Master Plan goal to provide adequate open space and recreational facilities. The Appellate Division was concerned that the municipality’s Master Plan was adopted shortly before the condemnation but made no reference to the possibility of the desirability of acquiring the subject site for park use or open space. Further, the municipality had previously passed a resolution endorsing an “Open Space Plan,” but this particular site was not listed in that plan. According to the Court, those “omissions seem to indicate that the Township had no interest in acquiring [the particular] site for open space until after the community opposition to the development became manifest during the” pendency of the use variance application. The Court recognized that a government entity is permitted to take private property for public use in the exchange for just compensation and broad discretion is granted to government authorities in determining what property may be taken for public use. Generally, courts will not inquire into the governmental entity’s motive “to impugn a facially valid ordinance, but will consider evidence about the legislative purpose ‘when the reasonableness of the enactment is not apparent on its face.’ The burden is on the asserting party to show that the condemning authority has acted with improper motives, bad faith or “some other consideration amount[ing] to a manifest abuse of the power of eminent domain.” In this case, the site owner argued that the municipality failed to act in good faith, and from the record, the Appellate Division upheld that contention. While public sentiment may be considered in formulating a Master Plan or enacting a zoning ordinance, it is not a proper factor in condemnation. “The only justification for condemning the person’s real property is to fulfill a public purpose or need. It is the public purpose or need which impels the condemnation. The condemnation cannot be used as a pretext to discourage or prevent a particular use of property.”

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