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Mount Laurel Township v. Mipro Homes, L.L.C.

379 N.J. Super. 358, 878 A.2d 38 (App. Div. 2005)

CONDEMNATION; OPEN SPACE—Conservation of land for open space is a public use, even though a condemning public agency acquiring the land has no plans to put the property to any active use.

Mount Laurel, a frequent party to exclusionary zoning litigation, “undertook to identify all remaining open space in the municipality to determine which parcels would be appropriate for acquisition and could qualify for Green Acres funding. A developer’s 16.3-acre parcel, in an area zoned for residential use and occupied by a single house, was not initially included “in the list of properties sought to be acquired for open space because [the developer’s] predecessor in title planned to construct an assisted living facility on the site that would have included units affordable to low- and moderate-income residents.” The developer, however, acquired the site with the intention of building twenty-three homes. It obtained preliminary subdivision approval for its planned development. When the municipality’s governing body became aware that the proposed use of the site had changed to a single family housing development, “it decided to add the site to the list of parcels to be acquired under its open space acquisition program.” It sent the developer a letter to that effect, stating that the property had been “preliminarily listed as a potential parcel to be included in the [municipality’s] Recreation and Open Space Plan.” About eight months later, the developer obtained final subdivision approval. When the municipality was unable to obtain the site by voluntary acquisition, it filed a declaration of taking. During the period between “the grant of final subdivision approval and the filing of the declaration of taking, [the developer] performed a significant amount of site preparation work on the site.”

The developer’s reaction to the condemnation action was that “the purpose of the condemnation action was to stop residential development and that this [was] an unlawful purpose.” During the pendency of the law suit, the municipality’s planning board “adopted an amended master plan, which stated that the goals of the recreation and open space plan included acquisition of ‘the maximum amount of open space remaining in the [municipality] that can be achieved with sound use of financial resources’ and reduction of traffic congestion and costs of municipal services.”

The lower court, in its opinion, recognized that the municipality “had initiated proceedings to condemn [the developer’s] property ‘for a facially valid purpose, namely, the acquisition of [the developer’s] tract to be held in perpetuity as a passive open space.’ Nevertheless, the [lower] court concluded that [the municipality’s] ‘real purpose’ in condemning [the developer’s] property ‘was to prevent yet another residential development in a [municipality] already under severe development pressure.’” It held that “the public purpose articulated for the taking of [the developer’s] property for passive open space was not based on a true public need but solely in response to the community’s sentiment expressed at the polls, coupled with clear indications from [municipal] officials that the property be acquired to stop residential development.” Accordingly, the lower court “entered summary judgment dismissing [the municipality’s] action to condemn [the developer’s] property.” The municipality appealed.

The Appellate Division agreed with the municipality and concluded “that a municipality has statutory authority to condemn property for open space; that a municipality may exercise its authority even though it does not presently have a plan to devote the property to active recreational uses; that the selection of properties for open space acquisition on which residential development is planned does not constitute an improper exercise of the eminent domain power; and that [the developer] did not present evidence that could support a finding that [the municipality’s] decision to condemn its property constituted an abuse of the eminent domain power.” Its decision was based on the New Jersey Constitution which “recognizes that private property may be condemned for ‘public use.’” Further, it pointed out that the “Legislature has long recognized that preservation of open space constitutes a public use, and therefore municipalities may utilize the eminent domain power to acquire property for this purpose.” In support of that goal, the Legislature reaffirmed that statutory authority and established a funding mechanism for the purpose of acquiring open space. Voters approved an amendment to the New Jersey Constitution dedicating sales and use tax funds for the acquisition of such land. As to the question as to whether the municipality could exercise this eminent domain authority “even though it does not presently have a plan to devote the land to an active recreational use, the Court said that “[t]he short answer is that the conservation of land for open space is a public use, even though the government agency acquiring the land has no plans to put the property to any active use.”


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