The Long Arm of Eminent Domain

by: Anthony F. Della Pelle
19 Dec 2008
New Jersey Law Journal 12 22 08

New Jersey Law Journal/Photo by Carmen Natale

New Jersey Law Journal

December 16, 2008

“Giving a novel twist to the debate on government takings, a town in Bergen County is trying to condemn property half a mile beyond its border in a municipality next door.

Cliffside Park filed a condemnation complaint in November to gain ownership of a private property in Fairview it is renting for a Department of Public Works facility.

The complaint offering $1.3 million for the property says Cliffside Park needs the land and garage as an interim facility until Cliffside Park and Fairview build a planned joint DPW facility in another part of Fairview with a county grant — a project in the works since 2003.

A provision of state eminent domain law, N.J.S.A. 40A:12-4(a) gives towns authority to condemn and obtain ownership of property in other municipalities, and Cliffside Park is claiming that right in its complaint, Borough of Cliffside Park v. Pedigree Holding Group , Ber-8236.

The property owner and Fairview concede that extra-territorial condemnation is permitted by law. But they are fighting Cliffside Park on grounds that the statute can be used for takings by a town outside its borders only in limited and special circumstances, and only with the permission of the town where the property is located.

Typical examples are when a town with a reservoir in another municipality needs to acquire land to protect the water or when a property immediately across a border is needed to preserve access, they say.

The issue has come up so rarely there don’t seem to be precedents on point about the legality of what Cliffside Park is trying. Anthony Della Pelle of McKirdy & Riskin in Morristown, who represents the property owner in the case, says “one town may not generally use eminent domain to acquire real estate in another town.

“If one town is allowed to take property without special circumstances, every town would try to put its unpopular uses, such as garbage dumps or jails, on properties in neighboring towns,” he says.

But Cliffside Park’s lawyer, Christos Diktas of Diktas Schandler Gillen, says the statute gives his borough an absolute right to condemn in Fairview. And if his opponents are correct and that he needs to show there are special circumstances, he can prove they exist, he suggests.

He says the two boroughs’ plan to share a public works facility and Fairview-Cliffside Park cooperation in a previous condemnation case, provide the special circumstances that make his admittedly unusual complaint valid.

Besides focusing on who can condemn property, and where, the dispute also suggests the good-government impulse of towns to save money by consolidating services can have unforeseen and nasty consequences.

Cliffside Park and Fairview, whose combined area totals less than two square miles, started out as partners to build the joint DPW facility — the kind of cooperative venture that Gov. Jon Corzine has advocated as a solution to wasteful municipal spending for services that can be shared.

The $12 million deal, financed partly by a loan from the Bergen County Improvement Authority, looked good for both towns because Cliffside Park didn’t know of a suitable site for a public works facility in its own town.

It had a headquarters near the municipal building, but the site was sold to private interests for a development designed to spruce up the borough’s main thoroughfare.

For its part, Fairview looked forward to using the county money for flood-control improvements for homeowners in the neighborhood the county selected for the Joint DPW, according to the borough’s special counsel, Carmine Alampi of Alampi De Marrais in Hackensack.

The site was in private hands and the boroughs adopted ordinances that gave Cliffside Park responsibility for the acquisition. But when the owner balked at the $1.38 million offer, Cliffside Park filed a condemnation complaint in December 2005. That case has now settled and Cliffside Park, having spent $2 million on the project is ready to go forward, Diktas says.

In the meantime, the JPW appears to foundering. Alampi says the county has decided the flood-control aspect of the joint project is no longer feasible, which has taken the luster off the plan in Fairview’s eyes.

Fairview’s decision to back away from the joint project appears to be the spark that ignited Cliffside Park’s decision to use powers of eminent domain to convert its 22,000 square foot rental, a few blocks from the stalled joint facility, into a temporary, owned, home for Cliffside Park’s public works needs.

Diktas says Cliffside Park has spent $2 million on the joint facility project in good faith and suggests that the history of the cooperation and Cliffside Park’s role in pursuing the previous condemnation in Fairview are examples of the “special circumstances” that support Cliffside Park’s complaint to obtain the new property.

But Alampi has said that Cliffside Park is wrong if it thinks its unilateral decision to condemn the temporary rental site will rekindle Fairview’s fervor for the joint public works facility.

The latest condemnation “has nothing to do with, nor facilitates the development of the Joint DPW Facility,” Alampi said in a Nov. 4 letter to Cliffside Park’s lawyer. He also said that Fairview’s permission in 2005 to Cliffside Park to condemn the site of the Joint DPW facility didn’t include a right to condemn any other property in Fairview.

And the law doesn’t give Cliffside Park the right to make a cross-border incursion, he said.

While the statute may permit a municipality to condemn property outside its borders, “the intent of the statute is designed to protect a public project from undue interference by a property owner where the project may overlap a municipal boundary,” Alampi wrote.

“The actions of Cliffside Park would constitute a perversion of the intent and purpose of the law and would result in an improper application of the statute,” he wrote.

In an interview on Monday, Alampi said the right conferred in N.J.S.A.40A:12-4 is tempered by the next provision, N.J.S.A. 40A:12-5 (a)(2).

“They didn’t turn the page over and read the next paragraph, which says the taking is ‘subject to lawful conditions, restrictions or limitations as to its use … ‘” he says.

A condemnation lawyer outside the case, William Ward of Carlin & Ward in Florham Park, says he thinks the defense lawyers in the case are right.

And he says Cliffside Park risks a fee award. Defendants who defeat a condemnation complaint are entitled to recover legal fees.”

 McKirdy & Riskin’s Anthony Della Pelle,, serves as special condemnation counsel to the property owner, Bridget Tapkas and her family, in this dispute.  The court has scheduled a hearing on January23, 2009  to determine whether Cliffside Park has abused its eminent domain powers in attempting to take property outside of its municipal boundaries.