App. Div. To Condemnors: Is This Really Necessary?

by: Allan Zhang
21 Feb 2019

A recent New Jersey Appellate Division case focused upon the showing of necessity that a municipality or agency must make to condemn property located in a redevelopment zone and take it from its owners. The panel reversed the trial court’s decision allowing the Borough of Glassboro (“Borough”) to acquire Defendant’s (Jack Grossman, Matthew Roche and Dan DeSilvio) property without prejudice as the Borough failed to put forward an adequate demonstration of necessity for the taking. The Borough’s declaration of taking was revoked and the appointment of commissioners was vacated. This decision clarifies the existing “reasonable basis” determination which made it unclear whether a condemning authority can merely proclaim that it needs a property or if it must do more and present proof of necessity tied to a specific project.

Here, subject property is in Borough of Glassboro and is mostly vacant land with a small structure on the property. About one block away is an ongoing redevelopment project. In the Borough’s verified complaint, it merely stated the acquisition was for the specific purpose of increasing the availability of public parking in the Borough of Glassboro. Under the Local Redevelopment and Housing Law (LRHL), municipalities can designate redevelopment areas if certain conditions are met. However, once an area is designated, a redevelopment plan must be adopted. Thus, the court joined the trial court in rejecting the Borough’s position that necessity may be established solely because the property is physically in a redevelopment area and there was no evidential support in the record.

Additionally, the court rejected the Borough’s arguments that 1) that necessity may be established only on the fact that the parcel to be taken is physically within a redevelopment area and 2) that necessity can be satisfied by, “land assemblage,” simply declaring that it wants to accumulate properties for possible future need in redevelopment areas. The use can be changed after the acquisition occurs if the original taking was evidentially justified and made in good faith.

The court held that if a landowner in a redevelopment area contests the necessity of a condemnation, then it is required that the condemning authority articulate a definitive need to acquire the property for an identified redevelopment project. The need must be specific and not merely for a hypothetical future project. Moreover, the condemning authority must provide reasonable substantiation of the need. Accordingly, the two-part test for condemnors is: 1) to identify the redevelopment project and 2) the claim of necessity must be supported by evidence. A non-exhaustive list of showing proof includes: presenting facts or data that reflect the need for acquisition, a report from an expert, architectural plans, market studies or some combination thereof. A property owner would need to disprove the condemning authority’s necessity by a preponderance of evidence.

A copy of Borough of Glassboro v. Grossman can be found here.

MROD was honored to serve as local counsel for the Institute for Justice, an amicus curiae, in connection with the Glassboro v. Grossman matter.