Township of Jackson v. Getzel Bee, LLC, ___ N.J. Super. ___ (App. Div. 2025). This eminent domain opinion by Judge Berdote Byrne involved two consolidated cases. Plaintiff Township sought to acquire two pieces of property owned by defendants, Block 21601, Lots 84 and 90. When defendants did not respond, plaintiff commenced condemnation proceedings.
The Township adopted two ordinances to implement the condemnation. The first ordinance authorized “condemnation/eminent domain so that the Township . . . shall have access onto, over and through said privately owned real property for the purpose of open space.” The findings that were made to support the ordinance were “conclusory,” as Judge Berdote Byrne stated. Nonetheless, about one month later, the Township instituted condemnation proceedings that again asserted that the properties would be used for open space.
About two months after that, the Township adopted the second ordinance, which amended the first one. “The amended ordinance included more detailed findings and, for the first time, intimated that the condemned parcels were not to be used as open space by the Township, but instead were to be combined with land owned by the Township and exchanged for land that would be used as open space.” Though Judge Berdote Byrne did say that the findings supporting the second ordinance were “more detailed,” she also characterized them as “amorphous.”
Even before the Township commenced condemnation proceedings, White Road HOA, LLC (“White Road”), an entity not connected to defendants in the condemnation case, had filed a lawsuit challenging the land swap. The Law Division dismissed that case, a ruling that was not appealed. Relying on the decision in White Road, the Law Division authorized condemnation and appointed condemnation commissioners. Defendants appealed. The Appellate Division reversed.
Judge Berdote Byrne noted that “[s]tatutes granting the power of eminent domain are to be construed strictly because they involve private property rights protected by the Federal and New Jersey Constitutions. See State v. Maas & Waldstein Co., 83 N.J. Super. 211, 217 (App. Div. 1964). As a result, strict adherence to the Eminent Domain Act, N.J.S.A. 20:3-1 to -50, and the Local Lands and Buildings Law, N.J.S.A. 40A:12-1 to -38, is required.”
Though “once the strict requirements of governing statutes have been met, great discretion is afforded to condemning authorities in determining what property may be taken for public use,” despite that, “the decision to condemn shall not be enforced where there has been a showing of improper motives, bad faith, or some other consideration amounting to a manifest abuse of the power of eminent domain.” That includes, Judge Berdote Byrne said, the obligation of the condemning entity to “turn square corners.”
Finally, “a local entity [must] demonstrate the land being condemned will be used for a valid public purpose.” Here, the Township asserted for the first time in an opposition brief that the party to whom the properties were to be conveyed in the land swap “intends to build dormitories for students on the condemned property. However, the record before [the panel] is bereft of any indication as to the use of the condemned lots, other than what is, in essence, currency, to exchange for open space. It is undisputed the land-swap contract does not impose any limitation or restriction on [that party’s] use of the condemned property and none of the ordinances state the intended use of Lots 84 and 90.” All that meant that the Township had run afoul of the principle of Kelo v. City of New London, 545 U.S. 469 (2005), that “the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.”
The Township tried to argue that the land swap created a “public benefit,” citing “recreation, environmental preservation, economic benefits, and easement of traffic congestion by combining the condemned properties with land the Township already owns and exchanging it for more desirable land elsewhere.” But the panel said that the absence of any limitations on the developer’s use of the properties defeated that “vague” public benefit claim. And no reported case on which the Township relied entailed facts “where a private property was lawfully condemned solely to exchange it for other property that will be put to public use.”
Judge Berdote Byrne then turned to the question of whether defendants were barred by collateral estoppel from challenging the condemnation given the prior result in the White Road case. After discussing the requirements for collateral estoppel, she concluded that it did not preclude defendants’ challenge. One of those requirements was that “the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.” That was not so here, as “[t]here is no evidence the [defendants] agreed to be bound by the decision in White Road, had a pre-existing legal relationship with any party in White Road, assumed any control over the litigation in White Road, or are currently acting as a proxy for or in priority with any party in White Road.” Moreover, “the matter before us concerns the Township’s ability to condemn Lots 84 and 90, and White Road concerned only the validity of the Township’s land-swap agreement.”
Judge Berdote Byrne went on to say that statutory law itself defeated the attempted condemnation. “N.J.S.A. 40A:12-16 provides municipalities ‘may exchange any lands or any rights or interests therein owned by the . . . municipality’ with private parties. Accordingly, N.J.S.A. 40A:12-16 authorizes a municipality to exchange only the land it owns at the time the agreement is made.” The Township’s own document admitted that the two lots at issue were “not owned by [the] Township.”
Finally, the Township had not “turn[ed] square corners.” “The first ordinance claimed the condemned properties would be used for open space, as did the Township’s original correspondence with [defendants] seeking to purchase the properties, and the Township’s pleadings in support of condemning the two lots. These representations were pretextual as the Township had no intention of using the condemned lots as open space. And, in the amended ordinance, the Township failed to articulate how the condemned lots will ultimately be used. It is now clear the Township planned to use the lots not for open space, but to exchange for the Developer’s land in a land-swap deal.” The Township thus failed its “overriding obligation to deal forthrightly and fairly with property owners.”
Accordingly, the panel reversed the ruling of the Law Division approving condemnation. And since there was no valid ordinance and the “open space” claim of the Township was “pretextual,” there was no need to remand the case to the Township.