MT. LAUREL, NJ-A three-judge state appellate court panel yesterday stirred a new ingredient into the eminent domain pot by unanimously ruling that this community was within its rights to condemn and seize property to prevent it from being developed. The recent Kelo v. New London decision by the US Supreme Court gave communities the right to seize property for private development purposes.
Yesterday's decision has wide implications for developers--such communities as North Brunswick and Piscataway, NJ, among others, are embroiled in similar cases. It overturned a ruling in mid-2004 by Superior Court Judge John A. Sweeney, sitting in Burlington County, that Mt. Laurel Twp. had improperly seized a 16-acre site to block a proposed development of 23 houses by Mipro Homes, a Sicklerville, NJ-based company headed by Michael Procacci. The latest ruling also tossed out some $150,000 in fees and damages awarded earlier to Mipro.
Mipro had acquired the site, which is zoned residential, in late 2001, and by mid-2002 had planning board approval to develop it. Site work began shortly thereafter, but local officials then quickly moved to initiate condemnation proceedings.
According to the appellate court's decision, which was authored by Judge Stephen Skillman, the site "is occupied by a single house. Mt. Laurel initially did not include this parcel in the list of properties sought to be acquired for open space because Mipro's predecessor in title planned to construct an assisted living facility…that would have included units affordable to low- and moderate-income residents. However, [when] Mipro [purchased] the site…for the purpose of building 23 single-family residences priced between $400,000 and $450,000…Mt. Laurel's governing body…decided to add the site to the list of parcels to be acquired under its open space acquisition program.
"We conclude that a municipality's acquisition for open space of properties on which residential development is planned constitutes a proper use of eminent domain," Judge Skillman wrote. "We conclude that…the selection of properties for open space acquisition on which residential development is planned does not constitute an improper exercise of eminent domain power….
"The trial court's conclusion that Mt. Laurel can acquire the Mipro site for open space by negotiation with the owner but lacks authority to acquire the property by eminent domain is inconsistent with the statutes authorizing municipalities to acquire land for open space," Judge Skillman wrote.
The Builders League of South Jersey, whose chairman Rick Van Osten terms Mt. Laurel's action "an ambush acquisition," had filed a brief in support of Mipro. Van Osten suggested yesterday that the case could be destined for the State Supreme Court. Briefs in support of Mt. Laurel, meanwhile, were filed by the League of Municipalities and the State Attorney General's Office.
The site has been assessed at approximately $2.1 million, and the township has put that amount into a court trust fund for an eventual buy-out, according to township solicitor Michael Mouber. Developer Procacci could not be reached for comment.
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