Here's the decision in a case we've been following from afar in which our colleagues Anthony Della Pelle and Robert McNamara are on the side of property owners, Borough of Glassboro v. Grossman, No. A-4556-17T2 (Jan. 7, 2019).
This is redevelopment, New Jersey style. We ask that you read the opinion (it isn't terribly long, and it is worthy of your perusal in its entirety), but here's the bottom line:
[W]e hold that if a landowner within the redevelopment area contests the necessity of a condemnation pursuant to N.J.S.A. 40A:12A-8(c), the statute logically requires the condemning authority to articulate a definitive need to acquire the parcel for an identified redevelopment project. That articulated need must be more specific than the mere "stockpiling" of real estate that might, hypothetically, be useful for a redevelopment project in the future. In addition, the condemning authority in such a contested case must present to the court at least some evidence – consisting of facts, expert opinion, or both – that provides reasonable substantiation of the need. To hold otherwise and allow the condemning authority merely to proclaim a need, without having any obligation to substantiate its existence, would improperly read the term "necessary" out of the Legislature's enactment.
Slip op. at 2-3.
If you think that sounds kind of familiar, you'd be right. The opinion cites one of our favorite cases, City of Stockton v. Marina Towers, 88 Cal. Rptr. 3d 909 (Ct. App. 2009), in which the court held that a "take first, decide later" what to do with the condemned land was not a valid public purpose supporting a taking.
Here, the Appellate Division rejected the Borough's argument "that it can satisfy the necessity requirement of [the statute] by simply declaring that it wishes to stockpile a parcel for some possible future need in the redevelopment area." The court concluded that "[t]hat sort of inchoate or speculative justification -- aptly described by defendants as 'land banking' or 'land assemblage' -- does not suffice to establish necessity under the statute." Slip op. at 19-20.
To do that, the condemnor "must do more than recite that a parcel it seeks to condemn has some unexplained necessity to the overall redevelopment area or the redevelopment plan. Instead, there must be particular redevelopment project identified and tied to the proposed acquisition...Our point is that there must be an explained linkage between the property to be acquired and the identified project." Slip. op. at 22.
We understand that condemnors are kind of used to getting their way, even -- or especially -- in court. But come on, the standards for public use and public purpose (and "necessity") are not really high, are they?
Is it that difficult to have an actual use in mind for land that is being taken at the time the land is being taken?
Linkage!
Borough of Glassboro v. Grossman, No. A-4556-17T2 (N.J. Super. App. Div. Jan. 7, 2019)
