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Mount Laurel Township v. MiPro Homes

December 7, 2006


On certification to the Superior Court, Appellate Division, whose opinion is reported at 379 N.J. Super. 358 (2005).


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The facts and procedural history are set forth in the opinion of the Appellate Division, which is reported at 379 N.J. Super. 358 (2005). To summarize, defendant MiPro Homes, L.L.C. is the owner of a 16.3-acre parcel of land located in an area of Mount Laurel Township zoned for residential use. MiPro planned to build twenty-three single-family residences on the site. On May 9, 2002, MiPro obtained final subdivision approval for this development. In the meantime, plaintiff Mount Laurel Township attempted to obtain the MiPro site as part of its open space acquisition program. After it was unable to obtain the site by way of voluntary acquisition, the township brought a condemnation action on May 24, 2002, and filed a declaration of taking on May 31, 2002. The trial court entered summary judgment dismissing Mount Laurel's action. The trial court concluded that although acquisition of property for open space is a proper purpose, the "real purpose" in condemning MiPro's property was to prevent another residential development in a township already under severe development pressure. That purpose, reasoned the trial court, may not be furthered by resort to the power of eminent domain.

The Appellate Division reversed and remanded the case for an order appointing condemnation commissioners. The panel concluded that a municipality has statutory authority to condemn property for open space; that the selection of properties for open space acquisition on which residential development is planned does not constitute an improper exercise of the eminent domain power; and that MiPro did not present evidence that could support a finding that Mount Laurel's decision to condemn its property constituted an abuse of the eminent domain power.

The Supreme Court granted certification. Per curiam.

Argued May 1, 2006

We affirm the holding of the Appellate Division for the reasons expressed by Judge Skillman in his thoughtful and well-written opinion. We recognize, as did the panel below, that the citizens of New Jersey have expressed a strong and sustained public interest in the acquisition and preservation of open space. The Appellate Division points to the numerous statutes enacted in the 1960s and 70s, and even more recently in the 1990s, authorizing loans and grants to expand the State's Green Acres Program. Most pertinent here, various of those statutes provide municipalities with the power of eminent domain to acquire land for recreation and conservation purposes. Mt. Laurel Twp. v. MiPro Homes, L.L.C., 379 N.J. Super. 358, 371-372 (App. Div. 2005) (citing New Jersey's Green Acres statutes, N.J.S.A. 13:8A-1 to -55, authorizing state and local governments to acquire land for recreation and conservation purposes). Even more telling, New Jersey residents have voted repeatedly for the issuance of state and county bonds to provide funding for open space acquisition.

That Mount Laurel Township sought to limit development, thereby to limit the overcrowded schools, traffic congestion and pollution that accompanies development, does not alter our disposition of this case. The town's motive is not inconsistent with the motive driving the public interest in open space acquisition generally. See N.J. Dep't of Envtl. Prot., Smart Growth, at (last modified Nov. 14, 2005) (stating that New Jersey is "the nation's most densely populated state, and the most developed" and that "[i]ll-conceived land use and poorly designed development threatens our vital drinking-water supplies, devours our open space, spoils our landscape and creates traffic congestion that pollutes our air.").

Finally, we note that on remand and the appointment of condemnation commissioners, the property will be valued at its fair market value, including value associated with MiPro's final subdivision approval obtained twenty-two days before the filing of the declaration of taking. Cf. State ex rel. Commissioner of Trans. v. Caoli, 135 N.J. 252, 268 (1994) (stating that "potential subdivision is a highly material factor bearing on the optimum use of the property and its fair market value.").

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in this opinion. JUSTICE RIVERA-SOTO filed a separate dissenting opinion.


I disagree with the majority's holding in two fundamental respects. First, I conclude, much as the trial court did, that this case presents an improper exercise of the power of eminent domain. Second, although the majority attempts to lighten the effect of its ruling by adding to the quantum of damages to which MiPro Homes, L.L.C. (MiPro) is entitled as a result of the condemnation proceedings instituted by Mount Laurel Township (Township), the majority simply does not go far enough. Therefore, I respectfully dissent.



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