Eminent domain is the power of the State to take private property for public use and to compensate the property owner. In Casino Reinvestment Development Authority (CRDA) v. Charles Birnbaum; Superior Court of New Jersey, Appellate Division, Docket NO. A-0019-16T1, Approved for Publication, February 15, 2019, the Court affirmed the trial court’s dismissal of a condemnation complaint as a manifest abuse of power because CDRA did not provide reasonable assurance that the proposed redevelopment would come to fruition in the foreseeable future.
CDRA had sought to condemn a residential property in the city of Atlantic City owned by defendants Charles and Lucinda Birnbaum in furtherance of its mandate to promote tourism in Atlantic City. At the time, CDRA has no specific redevelopment plan to redevelop the Birnbaum property but wanted to “bank” for
a future, unspecified project.
The Birnbaum property is a three-story building located at Block 72, Lot 3 in Atlantic City, within the Project area, between the Revel Casino and the Absecon Lighthouse. On CRDA maps, the Birnbaum property is located in a “land bank area” slated for “future development.” (slip op. at 11).
The trial court had concluded:
T]he [c]ourt holds that the CRDA has not provided reasonable assurances to justify the taking of the Birnbaums’ property. The [c]ourt finds that based on the current unprecedented financial crisis in Atlantic City, the unique location of the Birnbaums’ property, the history of unsuccessful economic development projects in this area of Atlantic City, [and] the lack of any specific and viable plans of the use of this property. . . the CRDA’s decision to condemn the Birnbaums’ property is a manifest abuse of the eminent domain power and . . . is not consistent with the statutory condemnation authority of the CRDA.
Slip op. at 19.
The Appellate Court concluded that the burden of coming forward with evidence of reasonable necessity, in cases where necessity is contested, rested upon the redevelopment agency. (slip op at 25) (citing Borough of Glassboro v. Jack Grossman, Superior Court of New Jersey, Appellate Division, Docket No. A-4556-17T2 (Approved for Publication, January 7, 2019) The CDRA did not have unfettered discretion in
defining what is necessary because its actions are subject to review on the basis of manifest abuse of power. (slip op at 24 (cite omitted)). The Court found that the proposed banking was not sufficient to establish a taking as reasonably necessary and affirmed the trial court because CRDA could not provide evidence-based assurances that the proposed project would proceed in the reasonably foreseeable future. (slip op at 29).
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