Jack Sabatino

On Jan. 7, 2019, the Appellate Division, in an opinion by Judge Jack Sabatino, addressed a question pertaining to eminent domain and property redevelopment by a municipal governing body that has long been unresolved. Borough of Glassboro v. Grossman, et al., Docket No. A-4556-17T2. The New Jersey Constitution grants eminent domain authority to the state if it pays just compensation for the property taken, comports with due process of law and only takes private property for public use (N.J. Const. art. I, ¶20).

The Legislature delegated the eminent domain authority to municipalities in the Local Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -49. That statute provides that a municipality may condemn and acquire private property “which is necessary for the redevelopment project.” N.J.S.A. 40A:12A-8(c). What “necessary” means in this context is not addressed in the statute and until now has not been the subject of any court opinion.

In this case, Glassboro had authorized eminent domain to acquire property deemed “necessary” for a redevelopment project. The property is described in the decision as being located about one block from the ongoing redevelopment activity. The owners of the property would not accept Glassboro’s offer, and so it instituted eminent domain proceedings. At a show cause hearing before the trial court, Glassboro argued that the possible use of the subject property might be for public parking or some other purpose related to redevelopment. The trial judge took no testimony but concluded that there had been an adequate public purpose demonstrated to satisfy the statutory requirement that the property in question was “necessary” for the redevelopment project.

In reversing the trial court’s decision, the Appellate Division started by reiterating that a determination of necessity in the LRHL is legislative in nature and not judicial. In Vineland Constr. Co., Inc. v. Twp. of Pennsauken, 395 N.J. Super. 230 (App. Div. 2007), the court had held that, “the determination of necessity … is a legislative, not judicial, decision, and if reasonable, will not be judicially disturbed.”

Judge Sabatino wrote in Glassboro that the eminent domain power exercised by the municipality would allow the condemnation under the LRHL, but only if “necessary” for a redevelopment project. Again relying on Vineland, the court held that “necessary” means “reasonably necessary” but that the determination required an evidential showing. The court rejected as not consistent with statutory authority the suggestion by the attorney for Glassboro that eminent domain could be used to acquire property for undetermined future use (something that Judge Sabatino described as, “take first, decide later”).

Thus, the Appellate Division held that the condemning authority must first identify the redevelopment project for which the property acquisition is needed, that it must do more than simply recite a conclusion that such property is necessary for the redevelopment and must instead prove that contention by evidence, including such things as a “planner’s report, engineer’s report, traffic study, facts, or data substantiating the necessity of this acquisition.” It held that the record was devoid of evidence demonstrating necessity. Accordingly, the court reversed the trial court, vacated the appointment of condemnation commissioners and an associated declaration of taking and did so without prejudice to Glassboro to attempt a future acquisition of the subject property if such were reasonably supported by competent evidence.

We welcome this well-reasoned and thorough opinion by the Appellate Division. It sheds light on an important question pertaining to eminent domain and redevelopment not heretofore addressed by the courts.