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Township of North Brunswick v. U.S. Home Corporation

A-2929-01T2 (N.J. Super. App. Div. 2003) (Unpublished)

CONDEMNATION—Where a condemning authority has an express statutory right to condemn property in the absence of proven bad faith, the amount and extent of the taking is left to its discretion.

A developer sought to construct senior citizen housing on existing farmland and persuaded the planning board to recommend that the municipality’s governing board rezone the farmland. The planning board actually submitted a draft ordinance to the governing body to zone the property for a Planned Retirement Community. In the interim, the municipality asked its voters to approve a tax to fund an open space preservation program. The resolution was approved and the municipality created a committee “to review and recommend open space acquisitions and projects.” No action was taken on the planning board’s rezoning recommendation. The developer then presented its concept at a workshop meeting of the governing body. At the same time, the municipality hired a consulting and environmental engineering firm to prepare a recreation and open space plan. That plan was developed and it was recommended that the municipality construct athletic fields and other recreational facilities “as soon as possible.” As a result, the governing body never rezoned the property and, in fact, commenced eminent domain proceedings. The developer objected, contending that the municipality “brought the condemnation action for the sole purpose of stopping the proposed senior citizens development, acting in ‘bad faith.’”

The Appellate Division was not sympathetic. It pointed out that “[g]overnment has broad discretion in deciding to condemn private property. [A] decision to condemn will not be set aside absent the showing of fraud, bad faith or manifest abuse. ... As a general rule, courts will not inquire into a condemnor’s motive, the necessity for the taking, or the amount of property to be appropriated for public use.” Further, bad faith “generally implies the doing of an act for a dishonest purpose,” and also contemplates “ill-will.”

The developer cited several cases in which a municipality was found to condemn property solely to prevent realization of an otherwise acceptable project. The Court distinguished those situations, pointing to extensive documentation from this municipality supporting its conclusion that additional open space and recreational elements were needed and that a solution was contemplated well before this developer came onto the scene. Essentially, the Court concluded that: “Given the municipality’s longstanding and documented desire to preserve this or similar property as open space and the need for additional active recreation facilities, ... no trial judge could find that the condemnation proceeding was brought in bad faith or for an improper purpose.” Finding no evidence of “bad faith,” the Court pointed out that “[w]here the Legislative has specifically granted the authority to condemn, the ‘amount and extent of the taking is left to the discretion of the legislative agent and it will not be interfered with by the courts when it is exercised in good faith.” Providing open space and recreational facilities is a valid purpose of land use regulation. The municipality used a recognized standard to determine its need for recreational space and the Court would not set that decision aside.


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