Friday, September 21, 2007
Matthew Stoloff (Syracuse) has posted A Taste of Things to Come?: Eminent Domain in the Name of Population Control on SSRN. Here's the abstract:
In Mount Laurel Township v. Mipro Homes, LLC., 878 A.2d 38 (2005), 910 A.2d 617 (2006), the New Jersey courts were faced with the question whether the local government in Mount Laurel had legitimately exercised its power of eminent domain when it acquired a piece of property zoned for residential use under the disguise of open space preservation. In the past forty years, Mount Laurel's population exploded eight-fold and continues to grow at a rate of approximately 1,000 people per year. The property in question had already undergone some development when Mount Laurel exercised its power of eminent domain. Was Mount Laurel's motive to control population growth? If so, may Mount Laurel exercise the power of eminent domain to control population growth?
This paper provides an overview of urban sprawl and the legacy of Berman v. Parker. Next, I summarize the facts and legal issues set forth in Mount Laurel v. Mipro, a case in which a local government exercised its power of eminent domain under the disguise of the New Jersey open space preservation act. A critical analysis of the New Jersey Appellate Court and New Jersey Supreme Court's decisions follows. I argue that Mount Laurel's taking to control the population growth was exercised in bad faith and that no public purpose was achieved when Mount Laurel prevented Mipro from developing twenty-three residential homes. I also argue that the New Jersey Supreme Court missed an opportunity to explain why it did not think that Mount Laurel did not exercise eminent domain in bad faith and what, precisely, would constitute bad faith. The N.J. Supreme Court's three-paragraph decision is disappointing in light of the intelligent and engaging arguments Mipro and Mount Laurel made at oral argument.
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