NJ Appeals Ct: Eminent Domain Pretext Determined Objectively, By Context

In an expansive opinion in Township of Readington v. Solberg Aviation Co., No. A-3083-07T3 (Aug. 19, 2009), the Appellate Division of the New Jersey Superior Court determined that a municipality abused its condemnation power when it attempted to take property to thwart the expansion of a nearby airport. 

The facts are set forth in detail in the opinion and will not be repeated here, but the most interesting portion of the opinion deals with the property owner's claim of pretext. It argued that the condemnation was "at least substantially motivated, by the desire of Township officials to limit airport expansion and to prevent [Solberg-Hunterdon Airport] from becoming a jetport." Slip op. at 35.

The Township did not dispute the contention, but argued the motivations of individual officials are not relevant in determining the public use or purpose of a taking. Under New Jersey law, a court will not overturn a decision to use eminent domain "in the absence of an affirmative showing of fraud, bad faith or manifest abuse." Township of West Orange v. 769 Assocs.,LLC, 800 A.2d 86, 90 (N.J. 2002). A condemnation may be set aside when the "real purpose" is other than the "stated purpose." See Casino Reinvestment Dev. Auth. v. Banin, 727 A.2d 102 (N.J. Super. 1998).

The court examined the objective factors surrounding the adoption of the condemnation ordinance, and concluded they "impugned its validity." Slip op. at 38. First, it was unlikely to achieve its stated purpose. The taking was purportedly for

open space and farmland preservation[,] land for recreational uses, conservation of natural resources, wetlands protection, water quality protection, preservation of critical wildlife habitat, historic preservation, airport preservation, and preservation of community character.

Slip op. at 39. However, "[r]eports prepared by the Township's experts indicate that the airport is in poor physical condition and has limited prospects for future economic success." Id. The court compared expert reports which questioned the viability of the airport. See id. at 40-42. The court also looked at the context of the condemnation to conclude the real purpose of the taking was to control airport operations, and that much of the area was already open space. See slip op. at 43-45.

The fact that the condemnation of development rights to the airport will not achieve its stated purposes indicates that the true purpose of the condemnation was to secure a greater measure of land use authority over the airport than the Township currently enjoys. Further, objective evidence suggests that the condemnation was initiated to secure Township control over airport operations. These are improper purposes in that they subvert the Commissioner's ultimate authority over aeronautical facilities.

Slip op. at 44. The court concluded the Township abused its power of eminent domain "to avoid the limitations on municipal zoning power imposed by State airport statutes and regulations," and "is not within the police powers delegated to the municipalities by the Legislature." Id. at 48. The full opinion is worth a read.