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Aug. 3, 2005

TOWNSHIP USED EMINENT DOMAIN TO HALT BUILDING OF 23 HOUSES

By Carol Comegno

A municipality can condemn property through eminent domain to preserve it as open space and halt development, a state appeals court ruled Tuesday.

The New Jersey Superior Court Appellate Division's ruling overturned a lower court's verdict regarding Mount Laurel's decision in 2002 to condemn the vacant 16-acre High Pointe tract owned by MiPro Homes LLC.

The developer already had obtained planning board approval to build 23 homes and started construction for utilities. But the township acted legally when it condemned the land and did not need to determine a specific preservation use because preservation in itself is a public purpose, the court ruled.

Local officials and environmental groups praised the decision, but the developer called it disastrous.

"We're elated," said Mount Laurel Mayor Gerry Nardello. "Hopefully we can move on and go on pursuing more open space."

"It's wonderful for Mount Laurel and other local governments that want to preserve property," added attorney Michael Mouber, who argued the case for the township.

But Jeffrey Baron, an attorney for MiPro, described the decision as "sadly, one step from socialism" and vowed to ask the state Supreme Court to review the ruling.

"This decision undoes 60 years of zoning and planning in the state in one fell swoop," Baron said. "It disregards completely the need for open space and concentrates only on the municipality's right to take property -- not because it needs it but because it wants it."

In addition to overturning a ruling by Superior Court Judge John Sweeney, the three-judge appellate opinion eliminated a $219,815 penalty Sweeney ordered Mount Laurel to pay the developer for misusing  eminent domain, levied because the township had no specific use for the property except to halt sprawl.ADVERTISEMENT -- CLICK TO ENLARGE OR
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Sweeney must now appoint a commission to determine the market value of the property, which is at Hainesport-Mount Laurel Road and Elbo Lane.

The township had offered MiPro $2.2 million for the land based on market appraisals several years ago.

The appeals court cited a statutory history of preservation in New Jersey to conserve natural resources for passive recreation, as well as three referendums approved by Mount Laurel voters for open space since 1998.

"Conservation of land for open space is a public use even though the government agency acquiring the land has no plans to put the property to active use," the court said.

Open space may serve the public interest through recreation, or by preventing development that may lead to congestion and pollution and put a strain on schools or other municipal services, the court ruled.

"This is an important victory for open space and towns determining their own destinies," said Jeff Tittel of the New Jersey Sierra Club. "If we can condemn land for a mall as a redevelopment zone, we should be able to condemn land for open space."

William Kearns, an attorney for the New Jersey League of Municipalities, which joined the township in the suit, said the ruling is significant because it clarifies open space preservation as a valid use if for no other reason than "just to sit there."

A spokesman for Save Our Homes, a South Jersey citizens group that has opposed the use of eminent domain for redevelopment in Camden, declined comment. An attorney for the Builders League of South Jersey, one of the defendants with MiPro, could not be reached.

Reach Carol Comegno at (609) 267-9486 or ccomegno@courierpostonline.com

Copyright 2005 Courier-Post.