We had the New Jersey Appellate Division’s opinion in Township of Jackson v. Getzel Bee, LLC, No. A-0590-23 (Jan. 31, 2025) in our queue to digest, when our colleague Joe Grather beat us to the punch with his analysis “Appellate Court Rejects Condemnation Due to Lack of Public Use or Purpose.”

So instead of repeating Joe’s summary and analysis, we’re going to recommend you read his. The short story is that the Township used eminent domain to take property, with the avowed public use being “open space,” which is generally a qualifying public use. The owner objected and the Appellate Division agreed that yes, open space may be a public use, but here, the record pointed to the property actually being used as a “currency” to “exchange for open space.” As Joe writes:

I’m not so sure we agree with the idea that the constitutional “public use” limitation should be stretched to allow the taking of private property for a “broader public purpose.”  We will save that discussion for another day because the Appellate Division’s reversal does not embrace that concept.  To be sure, as expressed in the opinion, “neither Kelo nor the Eminent Domain Act contemplates the condemnation of a property for use solely as an asset in a scheme for an otherwise valid public purpose on some other property. Otherwise, as the LLCs aptly posit, government officials would be able to violate private property rights at any time for any reason—or for no reason—untethered to the public use requirement.”

Here’s our takeaways:

  • The court focused on the actual factual record in the case, not stuff the condemnor or its lawyers made up.
  • The opinion noted that “[i]n its opposition brief, the Township contends – for the first time – that the Developer intends to build dormitories for students on the condemned property. However, the record before us is bereft of any indication as to the use of the condemned lots, other than what is,in essence, currency, to exchange for open space.” Slip op. at 11. The condemnor’s litigation position isn’t what counts, the actual record governs.
  • The opinion cited Kelo for the A-to-B prohibition (even though Kelo upheld an A-to-B taking). In short, the taking here was a “purely private taking.”
  • Yes, the limitation on the taking power the court recognized here is statutory, and not constitutional. But the reasoning and method should be the same.

Be sure to check it out.

Township of Jackson v. Getzel Bee, LLC, No. A-0590-23 (N.J. Super. App. Div. Jan. 31, 2025)