New Jersey Appellate Division Judge Jack Sabatino/photo by Carmen Natale

A New Jersey appeals court has ruled that a municipality or redeveloper whose condemnation of property in a redevelopment zone is challenged must articulate a definitive need that goes beyond the mere “stockpiling” of real estate.

In a contested eminent domain case, the condemning authority must present to the court some evidence—consisting of facts, expert opinion, or both—that sets out reasonable support for the need, the Appellate Division said Monday in Borough of Glassboro v. Grossman.

The court reversed a trial court’s decision allowing Glassboro to acquire a piece of property after the town failed to offer any support for the assertion in its complaint that the land was needed for future public parking.

The ruling, which also vacated the trial court’s appointment of condemnation commissioners to value the property, was made without prejudice so that Glassboro may file a new complaint with evidentiary support.

According to the court’s decision Monday, Glassboro sought to acquire a one-acre plot one block from an ongoing, $450 million redevelopment project set to include retail space, apartments, student housing, classrooms and a park. The property at issue is within a redevelopment area that was designated by Glassboro in 2000.

The property at issue is owned by Jack Grossman and Matthew Roche, who entered into an agreement in September 2016 to sell it to Dan DeSilvio for $125,000. DeSilvio is buying the land in a series of installments though 2020. DeSilvio said he plans to construct residential, commercial and retail buildings on the site, the decision said.

But in January 2017, Glassboro filed a condemnation complaint against Grossman, Roche and DeSilvio, which stated that the acquisition was for “the specific purpose of increasing the availability of public parking” in Glassboro, according to the court.

The defendants argued that Glassboro failed to demonstrate a valid public purpose necessitating the acquisition. At a hearing on an order to show cause, Glassboro acknowledged that the complaint’s asserted purpose of using the land for parking is only one possible use, and the property might be used for some other purpose related to redevelopment, according to the decision.

Gloucester County Assignment Judge Benjamin Telsey rejected Glassboro’s argument that it could take any property within the redevelopment zone at any time, without providing a reason, but concluded that Glassboro had demonstrated an adequate public purpose to establish that the taking of the property at issue was necessary.

On appeal, the defendants—joined by the amicus curiae Institute for Justice, a public-interest law firm that focuses on property-rights cases—took the position that courts should strictly construe the Local Redevelopment and Housing Law, and that courts should not approve a redevelopment taking that is not supported by actual evidence of necessity.

Presiding Appellate Division Judge Jack Sabatino, joined by Judges Michael Haas and Thomas Sumners Jr., said in Monday’s decision that the question of what evidential showing a condemning agency must provide when taking property under the Local Redevelopment and Housing Law creates tension between two values: flexibility in the redevelopment process and public accountability.

Sabatino, writing for the court, rejected Glassboro’s position that necessity can be established under the statute solely based on the fact that the parcel to be taken is located in a zone designated for redevelopment. Such an approach disregards the statute’s requirement that property under acquisition is “necessary” for a redevelopment project. The statute’s necessity requirement “signaled that the mere inclusion of a parcel within a designated redevelopment area does not authorize that parcel to be taken on a whim at any time,” Sabatino wrote.

In addition, Sabatino said Glassboro erred in its argument that it could satisfy the necessity requirement under the statute merely by declaring the desire to stockpile a parcel for some possible future need in a redevelopment area.

“That sort of inchoate or speculative justification—aptly described by defendants as ‘land banking’ or ‘land assemblage’—does not suffice to establish necessity under the statute,” Sabatino wrote.

The necessity requirement, if challenged, must be justified by a “reasonable presentation of supporting proof,” Sabatino wrote. That might include “discrete facts or data that reflect the need for the acquisition,” or “a report from an expert, such as a professional planner, engineer or traffic consultant.” Architectural plans, drawings, or a market study or economic forecast, or some combination of those, could also fulfill the government’s obligations, Sabatino said.

R. William Potter of Potter and Dickson in Princeton, who represented the defendants, described the decision as “very significant” and said that the requirement that a condemning agency must have a specific project in mind when it takes land by eminent domain “provides a great deal of protection” to landowners.

M. James Maley Jr. of Maley Givens in Collingswood, who represented Glassboro, did not return a call about the ruling.