Public Use | Kelo

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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.

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

A press release from Develop Don’t Destroy Brooklyn links to the opening brief filed recently by the property owners who object to the taking of their property for the Atlantic Yards “redevelopment” project in Brooklyn in Goldstein v. New York State Urban Dev. Corp.

Here’s the summary of the issues presented in the brief:

1. Whether the public use requirement of the NY Constitution imposes amore stringent standard for takings than does the Fifth Amendment—aquestion expressly preserved by the Court of Appeals in Aspen CreekEstates, Ltd. v. Brookhaven (2009), and never before considered by anycourt in New York;

2. Whether the public use requirement of the NY Constitution “issatisfied when a condemning authority determines that he public benefitto be gained by forcibly appropriating citizens’ homes and businessesis ‘not incidental or pretextual in comparison with benefits toparticular, favored private entities,”‘ without ever examining thenature and magnitude of the private benefit…

Continue Reading Property Owner’s Brief In Atlantic Yards Appeal

These past few days, I’ve been attending the annual meeting of the ABA in Chicago. It was a chance to meet new colleagues, associate faces with those whom I’ve only had e-contact, and reacquaint myself with old friends.

I’m also the new Chair of the Condemnation Law Committee of the State & Local Government Law Section. I’m honored to have been delegated the task of leading a group which includes some of the most experienced and learned condemnation lawyers in the country among its members, from both condemnor and condemnee perspective.

One of the jobs of the Chair is to encourage those who are not section and committee members to join us. In that vein, here are some of the benefits of participating:

  • We’ll be continuing our program of regular teleconferences on new cases and hot developments in eminent domain and regulatory takings law. The last call

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Continue Reading ABA Section Of State & Local Gov’t Law – Condemnation Law Committee

We’ve been loosely following the Senate Judiciary Committee’s hearings on the nomination of Judge Sonia Sotamayor as an Associate Justice of the Supreme Court, and reading selected testimony and commentary on the subject. We say “loosely” since confirmation hearings are more political theater and an opportunity for each side to educate the public about its vision of judicial review and constitutional law, than about actually vetting the nominee.

Here’s a sampling, followed by some thoughts:

  • She’s Lying by Paul Campos – “Even some liberals are frustrated by Sonia Sotomayor’s carefully plotted answers this week. The Daily Beast’s Paul Campos on how she’s denying the truth about our legal system.”
  • Written testimony of Lawprof Ilya Somin (Geo. Mason University) – “As President  Barack Obama has written, ‘[o]ur Constitution places the ownership of private property at the very heart of our system of liberty.’ The protection of property rights was one of

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Continue Reading Do Judges “Make” Law? The Sotomayor Nomination And The Beachfront Takings Case

Little-pink-houseThe National Constitution Center regularly posts “We The People Stories,” podcasts of “nationally recognized leaders debating and discussing the Constitution.”

The latest is about Kelo and eminent domain, and is well worth a listen.

Here’s the summary:

A conversation about Kelo v. City of New London four years after the Supreme Court’s highly controversial 5-4 decision involving the use of eminent domain to transfer land from one private owner to another to further economic development. Since the 2005 decision, 40 states have passed legislation limiting the state government’s power of eminent domain for economic development. In practice, however, solutions have proven elusive. Guests include investigative journalist Jeff Benedict, author of Little Pink House: A True Story of Defiance and Courage, and attorneys Brian Blaesser and Scott Bullock. Veteran Supreme Court correspondent Lyle Denniston moderates. Program recorded on 06/10/2009.

The mp3 is posted here. More on Little Pink Continue Reading National Constitution Center Podcast On Kelo

The Senate’s hearings on Circuit Judge Sonia Sotomayor’s nomination as an Associate Justice of the U.S. Supreme Court begin today. Here’s our summary of cases in which she was involved as a circuit and district judge on the issue.

If confirmed, we may find out her thinking about regulatory takings very soon, because in its next Term, the Court will be reviewing Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted. June 15, 2009), a case about the taking of littoral (beachfront) land in Florida. Our summary of the issues in that case is here.

If she is elevated to the Court, this case could prove especially interesting because her one unabashedly pro-property owner decision as a Second Circuit judge focused on procedural due process. In Brody v. Village of Port Chester, 434 F.3d 121 (2d Cir. 2005), the court held…

Continue Reading Sotomayor On Takings And Property Rights Issues

That now-cliched line from Field of Dreams, “if you build it they will come” (actually, it’s “he will come,” but work with us here) seemed to be the driving force behind the New London Development Corporation’s plans for the Fort Trumbull neighborhood when it wanted to condemn the homes of Susette Kelo and her neighbors. If they condemned, Pfizer would come.

They condemned the hell out of it, but it turns out that it wasn’t the pharmaceutical giant that came, or even Shoeless Joe and his Black Sox. According to a report in the New London, Connecticut paper The Day, birds — killdeer, red-winged blackbirds, mourning doves and others — have come: “Fort Trumbull Neighborhood Is For The Birds.”

WhenSpinoza observed some 350 years ago that “nature abhors a vacuum,” theFort Trumbull peninsula hadn’t seen its first fort yet, let alone anyhints of the…

Continue Reading Field Of (Broken) Dreams In New London?

Here are items which we’ve been reviewing today:

  • Dwight Merriam’s thoughts on SCOTUS nominee, Second Circuit Judge Sonia Sotomayor.
  • A report that the “Florida Hometown Democracy” initiative has made the 2010 ballot. According to the report “[i]f the proposal gets 60 percent approval at the polls, HometownDemocracy would require local referendums on changes to city and countycomprehensive plans.”
  • The New York Court of Appeals (that state’s highest court) will be hearing arguments in the Atlantic Yards cases. The NY Observer‘s report here, and the NY Times report here.
  • Speaking of takings for sports facilities, Professor Gideon Kanner dishes on using taxpayer money to attract and support stadiums and arenas.

Continue Reading Tuesday Round-Up

A very interesting conference call today, focusing on the property-related decisions by SCOTUS nominee Sotomayor and the takings case recently accepted for review by the U.S. Supreme Court. Here are the links to some of the cases and other topics discussed during today’s call, and other items of interest which we didn’t have time for:

  • Judge Sonya Sotomayor’s decisions about eminent domain and regulatory takings
  • Resource page for the Florida beachfront takings case, Stop the Beachfront Renourishment, Inc. v. Florida Dep’t of Environmental Protection, No. 08-11 (cert. granted, June 15, 2009).
  • Scalia and O’Connor’s dissent

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Continue Reading Links From ABA Condemnation Committee Conference Call