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.