We usually don't cover unpublished opinions, but the New Jersey Appellate Division's reasoning in Hudson County Improvement Authority v. Mariana Properties, Inc., No. A-2686-22 (Oct. 29, 2024) stuck in our craw a bit.
This is an eminent domain case in which the Authority is taking an easement and intends to construct one of the most "New Jersey" forms of infrastructure, a "jug handle" turn. The stated public use supporting the taking:
The Easement would create a jug handle allowing trucks heading west on the Bellevue Turnpike to turn left onto Crosspike Drive. The Spine Road would provide access to a public facility, the New Jersey Transit Grid Traction Power System Project, and three new industrial warehouses. To do so, the Spine Road would cut across the Property and leave the Property's southeastern corner , fronting the Belleville Turnpike, separate from its larger remainder. The Easement would total 51,993 square feet, or just under 1.2 acres. Mariana would reserve all property rights, including full rights to utilize the improvement for ingress and egress to the Belleville Turnpike.
Slip op. at 3-4.
The owner objected, asserting that the taking lacked a public use. It alleged:
[T]he HCIA proffers only a conclusory statement as to public purpose that is belied by information provided during negotiations. From this information, Mariana surmises the Spine Road is intended "to provide a vehicular access route for a single, private warehouse development on the Koppers Peninsula." It relies on the draft Easement agreement which defines "Users" as "HCIA and HCIA's successors, assigns, and/or transferees and . . . its or their tenants, licensees, occupants, business invitees, and guests ." Mariana gleans from this language "an intent by the HCIA to transfer or assign its easement interest in the Spine Road to a third party, potentially the private developer planning the private warehouse development on the Koppers Peninsula." It argues the HCIA has not produced any evidence the Spine Road will be open to the public or anyone other than visitors to the private warehouse.
Slip op. at 13-14.
That sounds like a colorable claim, especially since the Supreme Court of adjacent Pennsylvania recently concluded that a taking designed to benefit a single business was not for public use. And we also know that the standard of review of public use challenges are generally pretty low. Accordingly, the court recites the principle that courts "give condemning authorities wide latitude" in determining what a public use is, and whether this property is being taken for that use. New Jersey follows the Berman/Midkiff formulation that does not look at the proposed use and ask whether it is public, but at the purpose of the taking, as stated by the condemnor. As the court noted, "[t]he taking need only ]tend[] to enlarge resources, increase the industrial energies, and ... manifestly contribute[] to the general welfare and the prosperity of the whole community.'" Slip op. at 14-14 (citations omitted). Under that "broad definition" it really doesn't matter if the public will use the property, or if a private party is the one who benefits.
But here's the part that stuck in our craw. In rejecting the owner's arguments, the court notes that, [c]ontrary to Mariana's assertion, the HCIA has articulated a valid public purpose that is more than conclusory." Slip op. at 15. As in the Pennsylvania case noted above, "Mariana speculates the Spine Road will service only a single, private entity based on language used in the draft Easement agreement exchanged prior to litigation." Id.
So what, held the court: it only matters what the condemning authority says it is doing, and "nothing in the record indicates [the trial judge] abused his discretion in finding the HCIA articulated a valid public purpose for the taking." Slip op. at 16. The assertions of the owner are merely "its own speculation," and doesn't trigger any inquiry into whether the taking was for a fraudulent reason, in bad faith, or an abuse of the condemnor's authority.
Now don't get us wrong. We don't know whether the owner's claims have any merit. But it appears that its arguments were based on the draft of the easement, and that to us raises at least the possibility that this was smoke indicating fire (we don't know, because the opinion does not detail the language in the draft easement the owner pointed to). As noted in this case (one of ours), these type of claims should not be rejected out of hand, but deserve judicial vetting.
After all, if merely "articulating" a possible public purpose or benefit is all a condemnor needs to get by, what's left of the Public Use requirement? This is one of the reasons why we think that public use -- and not the condemnor's intent -- should be the standard.
Hudson County Improvement Auth. v. Mariana Properties, Inc., No. A-2686-22 (N.J. App Div. Oct. 29, 2024)
