Eminent domain is the ability of a government to take private property for public use and compensate the property owner. In Borough of Glassboro v. Jack Grossman, Superior Court of New Jersey, Appellate Division, Docket No. A-4556-17T2 (Approved for Publication, January 7, 2019), a unanimous panel held that, where a landowner within a redevelopment area contests the necessity of a condemnation pursuant to the Local Redevelopment and Housing Law N.J.S.A. 40A:12A-1-49, N.J.S.A. 40A:12A-8(c) requires the condemning authority to articulate a definitive need to acquire the parcel for an identified redevelopment project. The Court noted that:
That articulated need must be more specific than the mere “stockpiling” of real estate that might, hypothetically, be useful for a redevelopment project in the future. In addition, the condemning authority in such a contested case must present to the court at least some evidence – consisting of facts, expert opinion, or both – that provides reasonable substantiation of the need. To hold otherwise and allow the condemning authority merely to proclaim a need, without having any obligation to substantiate its existence, would improperly read the term “necessary” out of the Legislature’s enactment.Op at. p.2
In this case, the Borough of Glassboro sought to condemn a parcel located within a redevelopment zone and take it from its owners. When pre-suit negotiations failed, the Borough adopted an ordinance on December 28, 2017, authorizing the acquisition of the property. The ordinance did not specify why the property needed to be acquired. Ultimately, suit was filed.
In reversing the trial court’s decision to allow Glassboro to take the property, the Appellate Division noted that Glassboro “presented no evidence substantiating that the property is necessary for the purpose of future public parking, a need that was asserted in conclusory fashion in the Borough’s verified complaint.” Op at. p. 3. The ruling was without prejudice to Glassboro’s right to file a new complaint with sufficient evidential support.
The Appellate Division discussed the following two steps for trial courts to follow in assessing the exercise of eminent domain: (1) the condemnor’s articulation of the “necessary” purpose tied to a redevelopment project; and (2) the showing that a condemnor must present to substantiate that purpose. Op. at p. 21. As part of the first step, the condemnor must identify the specific redevelopment property for which the property is to be acquired. As to the second step, the condemnor must do more than claim in a conclusory manner that the property is required because the condemnor says so. Against this backdrop, the trial courts should give deference to the condemning authority and view the condemnation under a reasonable necessity standard. The burden of proving reasonably necessity falls on the condemning authority.
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