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TRENTON, NJ-The scope of eminent domain just got a little wider in the Garden State. By a 6-1 vote yesterday, the New Jersey Supreme Court said that cities and towns have the right to take property away from developers if that property is being set aside as open space.

The case involves Mount Laurel, in Burlington County, where the township used eminent domain to take over a 16-acre piece of farmland targeted for residential development. On the site, developer Michael Procacci Jr. of the Medford, NJ-based MiPro Homes had proposed 23 single-family homes. The development was consistent with zoning, the developer had his approvals in place and had begun site and utility work when the township, with a Green Acres grant in hand, used eminent domain to seize the property for preservation as open space.

“The citizens [of New Jersey] have expressed a strong… public interest in the acquisition and preservation of open space,” the court wrote in its four-page decision. That written decision added that the goal of limiting development is consistent “with the motive driving the public interest in open-space acquisition.”

The sole dissenter in the vote was Justice Roberto Rivera-Soto, who wrote that the township gave “after-the fact explanations of the public-policy basis [for the use of eminent domain].” He also said that the developer should be compensated not only for the value of the property, but also for “the potential profits” of the property.

One concession MiPro did wrest from the court was that the township has to pay fair market value for the land. That includes not only the basic value of the land, but the value of any upgrades to the land, including the site work and approvals.

MiPro could not be reached for comment. But after the decision, attorneys for the developer issued a statement calling it “unfair,” and indicating that they were considering an appeal to the US Supreme Court.

The case dates back to 2002 when a trial court turned down the township’s use of eminent domain to seize the MiPro property. A state appellate court subsequently overturned the lower court’s decision, prompting the developer to take the case to the New Jersey Supreme Court.

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