Friday, February 23, 2007
How can a property owner prove that government has discriminated on unlawful grounds when exercising eminent domain? In Wayne, N.J., the township is trying to take land on which a group of Albanian Muslims wants to build a mosque and cultural center. The township concluded that the hilltop site is too rocky and that construction would be too disruptive. The Muslim group has filed a claim in federal court, alleging that that the denial of the building application was based on unlawful religious discrimination.
Proving discriminatory intent is one of the thorniest issues in law. Absent "a "smoking gun" of an incriminating memo or public statement, how does one prove discrimination in something such as eminent domain? Would proof of discriminatory intent by the planning board be enough? By one member of the legislative council? By a majority of those who opposed the property owner? What if motivations are mixed, as they are likely to be with any big project planned by a religious minority group? Answering these questions, and how a claimant is expected to prove them, is exacerbated by the less formal procedures of local government land use decisionmaking.