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Delanco Township v. 325 Delaware Avenue

April 28, 2009


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-3609-05.

Per curiam.


Argued January 27, 2009

Before Judges Winkelstein, Fuentes and Chambers.

In this condemnation case, Delanco Township (the Township) seeks to condemn a small portion of Lot 5, Block 1208 in order to connect Delaware Avenue with Lot 6. The owner of Lot 5, defendant 325 Delaware Avenue LLC (the LLC), and the owners of Lot 4, defendant Ric F. Malik, a member of the LLC, and his wife, defendant Karen Malik, object to the taking. Defendants contend that the taking is solely to benefit the owner of Lot 6 and hence has no public purpose. In addition, they contend that the Township has incorrectly determined the location of Delaware Avenue, an unimproved road, on their Lots 4 and 5. We reverse and remand.


Our explanation of the facts and procedural history begins with a description of the property involved. The lots in question, Lots 4, 5, and 6, Block 1208 on the Township's tax map, are located side by side. An unimproved road runs across Lots 4 and 5, up to Lot 6 where it ends. This unimproved road connects with the improved portion of Delaware Avenue at the beginning of Lot 4, and provides the three lots with access to public streets. The tax map for the Township indicates that the portion of this unimproved road running across Lot 4 and into the middle of Lot 5 is an unimproved portion of Delaware Avenue. However, according to the tax map, Delaware Avenue ends abruptly in the middle of Lot 5, so that Lot 6 has no access to Delaware Avenue.

The Township seeks to take the strip of land on Lot 5 that would connect the unimproved portion of Delaware Avenue to Lot 6. The Township indicates that after the taking, it intends to improve the entire portion of Delaware Avenue that would then run through Lots 4, 5, and 6. This action would bisect defendants' property in a visually and functionally more dramatic manner then the existing unimproved roadway does. According to the Township, it turned its attention to this roadway situation, when defendants threatened to close the roadway, due to a dispute with the owner of Lot 6.

We will not review the involved procedural history, except to indicate that the trial court denied defendants' motion to dismiss the amended condemnation complaint and entered a final judgment dated February 5, 2007, in favor of the Township. The final judgment allowed the Township to exercise "its power of eminent domain for the expansion of Delaware Avenue to a 50' right-of-way as depicted in the Verified Complaint and Declaration of Taking," and appointed commissioners pursuant to N.J.S.A. 20:3-12(b). Defendants appeal the final judgment and the order of December 27, 2007, denying their motion for reconsideration.

In this appeal, defendants contend that the taking must be overturned because the Township is not exercising its power of eminent domain for a public use, but rather the condemnation benefits only a single private person, namely the owner of Lot 6. Defendants further dispute the path of the unimproved portion of Delaware Avenue across Lot 4 and into Lot 5 as provided on the tax map, and argue that the taking will result in the creation of an "island." They contend that other less destructive alternatives are available, and hence the taking is arbitrary, capricious, and unreasonable.


The taking of a portion of Lot 5 is for the sole purpose of connecting Delaware Avenue to Lot 6, a lot owned by a private person. Both the United States and the New Jersey constitutions allow the government to take private property for "public use" provided just compensation is paid. U.S. Const. amend. V; N.J. Const. art. I, ¶ 20; Texaco, Inc. v. Short, 454 U.S. 516, 523 n.11, 102 S.Ct. 781, 788 n.11, 70 L.Ed. 2d 738, 747 n.11 (1982). A taking of private property "for the purpose of conferring a private benefit on a particular private party" is unconstitutional. Kelo v. City of New London, Connecticut, 545 U.S. 469, 477, 125 S.Ct. 2655, 2661, 162 L.Ed. 2d 439, 450 (2005). A public entity may not "take property under the mere pretext of a public purpose, when its actual purpose [is] to bestow a private benefit." Id. at 478, 125 S.Ct. at 2661, 162 L.Ed. 2d at 450. Defendants in this case maintain that the taking will benefit solely the owner of one lot and hence is for a private purpose, thereby falling within the constitutional prohibition.

New Jersey courts have given condemning authorities a "wide latitude" and utilize "a flexible, deferential standard" in determining whether a particular taking is for a public use. Twp. of W. Orange v. 769 Assocs., L.L.C., 172 N.J. 564, 572 (2002). Deciding whether a particular taking is for a public or private use is considered a legislative determination and will not be overturned by the court "except in the most egregious circumstances." Id. at 576. In the absence of bad faith, fraud, or manifest abuse, the courts will uphold the public entity's decision that the taking is for a public purpose. Id. at 571. Our review here is thus subject to the "manifest abuse of discretion test." See id. at 578.

Public use is an expansive concept and "anything that 'tends to enlarge resources, increase the industrial energies, and . . . manifestly contributes to the general welfare and the prosperity of the whole community'" will be considered a public use. Id. at 573 (quoting Julius L. Sackman, 2A Nichols' The Law of Eminent Domain ยง 7.02[2] (3d ed. rev. 1990)) (alteration in original). "Public benefit," "public advantage," and "public utility" are synonymous with ...

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