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Friday, December 8, 2006

"N.J. court upholds eminent domain: It said preserving open space is an adequate reason to take private property"

Today's Philadelphia Inquirer has an article that begins:

In a decision highlighting the value of open space in the nation's most densely populated state, the New Jersey Supreme Court ruled yesterday that Mount Laurel acted properly when it seized a developer's land to preserve open space.

"We recognize ... that the citizens of New Jersey have expressed a strong and sustained public interest in the acquisition and preservation of open space," the state's highest court said in the 6-1 decision.

Jeff Tittel, director of the New Jersey chapter of the Sierra Club, called the court's action an "important victory" for people and municipalities concerned about the impact of sprawl on the dwindling amount of undeveloped land in the state.

"In the race for open space, New Jersey just picked up a lot of speed," said Tittel.

The case has been closely watched in the wake of last year's U.S. Supreme Court decision giving wider authority to local governments to use eminent-domain powers to seize private property for economic revitalization - not just for more traditional reasons such as building highways and government buildings.

Rick Duncan

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http://lawprofessors.typepad.com/property/2006/12/nj_court_uphold.html

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Comments

It seems highly unlikely to me that any court, especially the SCOTUS, would find that "open space" is not a valid, public use. It certainly does not raise the Kelo-oriented concerns that governments will transfer lands from one private owner to another private owner, whose use is more highly valued because it provides more tax revenues, increases employment, etc.

Posted by: Dan Cole | Dec 8, 2006 12:23:45 PM

Interesting case. I agree w/Dan -- I actually think that the idea that the government can take property to preserve open space is implicit in the Court's regulatory takings jurisprudence. The issue is discussed a bit in this post:

http://lawprofessors.typepad.com/property/2005/10/gelpi_conferenc_1.html

That said, something that often comes up in PA is that only certain types of government entities can take property for open space. Other types of entities -- certain types of towns -- can only take property for recreational use. This has led to some interesting cases when the taking is for both purposes -- land taken for a park is generally taken both for recreational purposes and to preserve open space. The PA courts have (appropriately, I think) been pretty deferential in allowing these takings.

Posted by: Ben Barros | Dec 8, 2006 12:35:09 PM

I'm not sure what the landowner's argument will be. It may be that the "open space" purpose was pretextual and concocted merely to stop a development by the new purchaser of the land. Still, I agree with Dan and Ben that if the city continues to own the land and maintain it as an open space/green belt that should easily satisfy the toothless concept of public use employed by the Ct in Kelo.

Posted by: Rick Duncan | Dec 8, 2006 2:00:18 PM

Does anyone find it at all ironic that the municipality in question here is Mt. Laurel??!! When one looks at the Appellate Division decision and the Supreme Court dissent by Justice Rivera-Soto, it is clear that Mt. Laurel condemned this land solely for the purpose of thwarting residential development. Open space was just the code words they used to justify their decision. Open space preservation is the new exclusionary zoning -- only dressed up in more politically palatable clothing!

Posted by: Kurt Paulsen | Dec 11, 2006 7:50:13 PM

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