In MiPro Homes, LLC v. Mount Laurel Township (No. 06-1345) (docket listing here), the US Supreme Court is being asked to consider the following question:
Whether the Takings Clause of the Fifth Amendment to the Constitution prohibits a municipality from taking private property for "public use" when the municipality's public use determination is ad hoc, pretextual, and not part of a comprehensive planning process.
This case is a follow up to Kelo v. City of New London, 545 U.S. 469 (2005), the decision in which the Court upheld a broad power to take private property for public use, provided it is accomplished as part of a comprehensive planning process. This case asks whether a municipality's claim that a taking was to preserve open space was "pretextual," and was instead designed to halt ongoing residential development, and a determination made outside the usual planning process. A prior proposal by the landowner to build an assisted-living facility had not met with Township opposition.
The trial court found the taking to be pretextual, and granted summary judgment to the property owner since the Township was "motivated by an ulterior, disguised purpose." The Appellate Division reversed, and the NJ Supreme Court affirmed the reversal.
At stake in the case is whether Justice Stevens' Kelo majority opinion that a public use determination is off-limits if the determination was the result of a "comprehensive plan" carries any weight:
The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including–but by no means limited to–new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman, to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.
(emphasis added). Justice Stevens supported the above conclusion with a citation to Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), the case that upheld zoning against a due process challenge since it was accomplished in "accordance with a comprehensive plan." This case presents the question of what if there is no "plan" that the taking is a part of -- is it still subject to the usual Berman deference?
The cert petition is posted here (4mb pdf). New Jersey law blog posts a summary here. a summary of the per curiam decision of the NJ Supreme Court (910 A.2d 617) is here; the opinion of the NJ Superior Court, Appellate Division (878 A.2d 38) is here, along with a summary of that opinion from New Jersey Case Law Summaries here.
