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New Jersey Appellate Court Curtails Eminent Domain Power

State Court Holds That Government Must Demonstrate Property Is “Necessary” Before Condemning Private Property

Arlington, Va.—In a decision with nationwide implications, the New Jersey Appellate Division yesterday (January 7, 2019) rejected the Borough of Glassboro’s attempt to condemn private property in service of an unspecified and undescribed “redevelopment plan,” holding that government officials cannot use their power to take property simply to engage in what the court called “land banking.” New Jersey’s redevelopment law allows condemnations for redevelopment only when the property is “necessary” to a redevelopment project, and yesterday’s ruling affirms that this means the government must meet real burdens before it forcibly acquires property.

This decision is a tremendous victory for property rights in New Jersey and nationwide,” explained Institute for Justice Senior Attorney Robert McNamara. “Increasingly, government officials are using the power of eminent domain to turn themselves into real estate speculators, seizing land in the hopes that some worthwhile investment will come along in the future. Yesterday’s ruling sends an unambiguous message that we should leave the speculating to speculators—not to government officials armed with tax dollars and the power of eminent domain.”

The Institute for Justice (IJ), the national law firm for liberty, filed an amicus brief and presented oral argument in the case, urging the court to clamp down on these sorts of unexplained and unexplainable takings. IJ represents property owners in eminent domain disputes nationwide, including fighting on behalf of Charlie Birnbaum, the New Jersey piano tuner whose high-profile fight to stop a state agency from condemning his longtime family home is now entering its fifth year.

IJ and Charlie won their fight in the trial court, which called the state’s efforts to condemn the home in service of an unspecified plan to support a casino that had closed years earlier a “manifest abuse of the eminent domain power.” But the state has appealed, and the case awaits a decision in the coming months.

“Yesterday’s decision bodes well for Charlie,” explained IJ Senior Attorney Dan Alban. “In both cases, the government’s position was essentially that there are no limits on their power to use eminent domain. Yesterday, the Appellate Division reaffirmed that those limits are both real and enforceable by the courts.”

“[A] condemning authority must do more than recite that a parcel it seeks to condemn has some unexplained necessity to [an] overall redevelopment area or [a] redevelopment plan,” wrote Judge Jack Sabatino, the presiding judge of the Appellate Division, in the court’s opinion. “The claim of necessity, if challenged, must be justified by a reasonable presentation of supporting proof. It will not suffice for the condemning authority to just ‘say so.’”

The victorious property owners in the case, which is Borough of Glassboro v. Grossman, are represented by the New Jersey eminent domain law firm Potter & Dickson, who are also local counsel in Charlie Birnbaum’s case.

“This ruling is an important step towards reining in the resurgent tide of eminent domain abuse in New Jersey and other states nationwide,” concluded McNamara. “IJ is committed to protecting property owners across the country, and we look forward to many similar victories to come.”

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