Appellate Court Rejects Condemnation Due to Lack of Public Use or Purpose
The New Jersey appellate court published its opinion on Friday January 31, 2025 in Township of Jackson v. Getzel Bee, LLC. Full text Getzel bee App Div 1-31-25.
The court’s opinion doesn’t mince words, and poignantly states the issue at the outset:
“Lots 84 and 90 are not being used for the asserted public purpose of open space—an otherwise valid public purpose for eminent domain. Instead, the record shows the lots are being condemned and combined with land the Township already owns to exchange them for land intended to be used as open space. The Township has failed to demonstrate the statutorily-required public use of the condemned land and the trial court erred in determining the Township had validly exercised its eminent-domain authority to condemn the properties.” Slip op. at 3.
More interesting is the Appellate Division’s citation to Kelo in support of its decision to reverse the trial court’s grant of Eminent Domain. It’s interesting because New Jersey is not a “Kelo State” because we have a separate “Blighted Areas” Clause in our Constitution that permits the taking of private property for the “public use and public purpose of blight clearance.”
“As noted, although municipalities enjoy discretion, the Eminent Domain Act requires a local entity demonstrate the land being condemned will be used for a valid public purpose. In its opposition brief, the Township contends—for the first time—that the Developer intends to build dormitories for students on the condemned property. However, the record before us is bereft of any
indication as to the use of the condemned lots, other than what is, in essence, currency, to exchange for open space. It is undisputed the land-swap contract does not impose any limitation or restriction on the Developer’s use of the condemned property and none of the ordinances state the intended use of Lots 84 and 90.
The United States Supreme Court has addressed this issue, stating: “[I]t has long been accepted that the that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.” Kelo v. City of New London, 545 U.S. 469, 477 (2005). For example, “[a][c]ity would no doubt be forbidden from taking [a
private citizen’s] land for the purpose of conferring a private benefit on a particular private party.” Ibid.; see also Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 245 (1984) (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void.”).
Kelo involved the condemnation of several lots for economic development purposes. In ultimately upholding the takings as consistent with a future public use of aiding the municipality’s economic development, the Supreme Court noted it has “long ago rejected any literal requirement that condemned property be put into use for the general public,” Kelo, 545 U.S. at 479 (quoting Midkiff, 467 U.S. at 244), and has instead “embraced the broader and more natural interpretation of public use as ‘public purpose,'” Id. at 480. Nevertheless, the requirement that the land condemned be used for some public purpose remains. See id. at 477; see also Midkiff, 467 U.S. at 244.” Slip op. at 11-12.
I’m not so sure we agree with the idea that the constitutional “public use” limitation should be stretched to allow the taking of private property for a “broader public purpose.” We will save that discussion for another day because the Appellate Division’s reversal does not embrace that concept. To be sure, as expressed in the opinion, “neither Kelo nor the Eminent Domain Act contemplates the condemnation of a property for use solely as an asset in a scheme for an otherwise valid public purpose on some other property. Otherwise, as the LLCs aptly posit, government officials would be able to violate private property rights at any time for any reason—or for no reason—untethered to the public use requirement.”
