Solberg Airport Taking Remanded

A New Jersey appeals court has remanded a challenge to a municipal effort  to condemn a local airport.  Township of Readington v. Solberg Aviation Co., involved the acquisition of a portion (in excess of 600 acres) of the owner Solberg’s private airport property in Readington Township, allegedly for open space preservation.  The Solberg Airport property is famous for its annual balloon festival.  In 2006, the Township filed a condemnation complaint, declaration of taking and deposited its estimate of compensation.  The property owner filed an answer challenging the right to take.  Discovery ensued, and the Township moved for summary judgment, which was granted by the trial court:  “In light of the Township’s established and recognized land use authority over the airport, it is the opinion of this Court that the Township of Readington is entitled as a matter of law to condemn the Subject Property, Solberg Airport and the surrounding property, as it proposes.”  The property owner appealed, arguing that the “condemnation’s stated purpose of preserving open space is pretextual and that its true purpose is to exert unlawful, de facto zoning control over airport operations.”  The Township countered that preservation of open space is a valid public use, and the court should only look at the purpose of the acquisition not the underlying motive.

             The appellate court reversed and remanded:

 “In sum, defendants’ evidence strongly suggested that the Township’s true purpose in condemning the land within the airport facilities area and safety zone was to secure ultimate control over airport growth and expansion. Because this purpose is contrary to express State purposes and beyond the power delegated to the Township by the Legislature, the condemnation of any parcels falling within the facilities area or safety zone must be set aside and determined after a full hearing on the merits. If any parcels fall outside of the facilities area and safety zone, the condemnation of those parcels must be revisited consistent with MiPro.

 In sum, we conclude that the judge improperly granted summary judgment to the Township. There is a keen necessity for revisiting the issue of the Township’s bad faith in a plenary trial and not by way of motion.

 Accordingly we reverse the entry of summary judgment and remand for trial on the issues raised by our opinion including which, if any, of the seven parcels named in the Township’s condemnation action fall outside of the airport facilities area and safety zone. The trial court must assess each parcel consistent with this opinion. We likewise conclude that defendants are not entitled to summary judgment. The issue of parcel identification together with the necessity of a plenary examination of the various written submissions proffered to the Court preclude the entry of judgment to either party.”

 This case will now proceed to trial regarding the municipality’s right to condemn.  The court also ruled that the property owner was not responsible for property taxes due to the transfer of title upon filing of declaration of taking and deposit of estimate compensation.

Read more about the decision here