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Township of West Orange v. 769 Associates, L.L.C.

341 N.J. Super. 580, 775 A.2d 657 (App. Div. 2001)

CONDEMNATION—Although the term “public purpose” is to be interpreted broadly in determining the validity of a taking by eminent domain, a court should use “heightened scrutiny” as the standard for establishing its bona fides.

A developer of a residential subdivision submitted a site plan to the municipality for review and approval. The site plan called for access to the development along an existing dedicated roadway. However, the residents who lived near that unimproved road formed a group and objected to the widening and improvement of the road. One of the members of the group served as a councilman and a planning board member, and voted in that capacity to seek an alternative access route to the development. Thereafter, the municipality hired a consultant to conduct a study to determine alternative access routes. The results of this study suggested an alternative route that would require condemnation proceedings. Thereafter, the developer and the municipality entered into a developer’s agreement whereby it was agreed that the municipality would make a determination of an access route not inconsistent with the findings in the consultant’s report. The developer also agreed to pay for all of the architectural, engineering, and condemnation costs associated with the relocated access route. The municipality adopted an ordinance to condemn affected properties and filed condemnation proceedings against each of the affected owners. The owner of one of the condemned parcels argued that the proposed condemnation constituted an unlawful taking of private property for private use and not for a legitimate public purpose. The lower court concluded that the “condemned property will be used by the municipality as a public road for ingress and egress out of the development, as well as ingress and egress for an adjacent property.” It concluded that the municipality retained the authority to condemn because the proposed roadway would serve more than one development and, therefore, would be “public.” The owner appealed on the basis that a court must apply heightened scrutiny in reviewing a claim that the public interest was the predominant interest being advanced. The Appellate Division began by recognizing that “generally, a government entity may take, or condemn, private property where it is in furtherance of a valid public purpose, and where just compensation has been made to the owner. Where, however, a condemnation is commenced for an apparently valid public purpose, but the real purpose is otherwise, the condemnation may be set aside.” New Jersey courts have declined to define the term “public purpose,” but have generally interpreted it broadly. The Appellate Division concurred that “heightened scrutiny” was the correct standard because the taking was designed to benefit a private and not a public interest. It then concluded that there was no sufficient reason for the municipality to proceed with the condemnation activities when the unimproved road was a viable alternative. In this regard, the Court concluded that “the proposed right-of-way, which would be established partly through condemnation, was to serve the private interests of the developer.”


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