Public Use Over Eminent Domain Abuse: NJ Supreme Court Rejects Private Land Swap

In an era of broad eminent domain authority and limited private property rights, the latest decision from the New Jersey Supreme Court couldn’t have arrived at a more appropriate time. The state’s highest court was faced with an unprecedented question: may a condemnor take private property it intends to use for a land exchange with a private developer? Fortunately for private property owners, the Court’s answer should give them further protection from eminent domain abuse.

Here’s an overview of Township of Jackson v. Getzel Bee and how it affects both property owners and condemning authorities in NJ.

Facts

In 2023, the Township of Jackson passed a series of ordinances allowing it to take two privately owned lots. Although the lots were being acquired “in furtherance of a public use and purpose,” the Township actually planned to use them in a land swap transaction with a private developer. In return, the Township was to receive land from the developer for open space preservation.

The property owners challenged the Township’s exercise of eminent domain. Their main argument was that the Township was not taking land for a public use but rather conferring a benefit on a private party. Further, the owners alleged that the Township didn’t act fairly when dealing with them, mainly because early communications suggested that the condemned lots were to be used for open-space purposes. In response, the Township argued that the taking should be viewed as part of a larger plan to preserve open space rather than merely a transfer of property to a private developer.

Procedural History

The trial court ruled that the Township lawfully exercised its power of eminent domain, and the owners timely appealed. The Appellate Division reversed, finding that the taken lots were used as a form of currency instead of a public purpose. The matter proceeded to the New Jersey Supreme Court for a final ruling. With no statutes or case law on point to guide the Court, the stage was set for an unprecedented decision.

Decision

In a 7-0 decision, the Court affirmed the Appellate Division’s ruling and held that a condemnor can’t take private property if the taking is purely for a land exchange with a private developer.

In reaching this decision, the Court acknowledged that land taken by eminent domain can be transferred to private entities as long as the public purpose requirement is achieved. But here, the land taken was not used for a public purpose. Even though the taking was part of a bigger picture for open space, the Court found that the public use requirement under the State and federal constitutions was not satisfied.

The Court raised two key questions. First, why didn’t the Township take the developer’s land directly instead of engaging in this land exchange? This raised suspicions that the condemned parcels were being used merely as bargaining chips instead of a valid public purpose. Second, what restrictions would apply if condemned land could be used in land exchanges? The Court raised a compelling point: without strictly adhering to the public purpose requirement, municipalities could abuse their eminent domain authority by taking property on one side of town to broker a public purpose in another. Ultimately, the Court found that neither the State nor federal constitutions permitted such takings.

Turning Square Corners

The Court also found that the Township didn’t engage fairly with the property owners. Under the “turn square corners” doctrine, governments must be straightforward and honest when dealing with property owners. In this case, four ordinances that preceded the taking obscured the Township’s intent. The first two stated that it was in the Township’s best interest to exchange land it owns with a private developer while referencing the two lots it didn’t actually own. The next two ordinances announced the plan to acquire those lots “for the preservation of open space” but failed to mention the exchange agreement with the private developer. This led the Court to conclude that the asserted public purpose was “vague, inaccurate, and pretextual.”

Conclusion

Jackson v. Getzel Bee is a landmark decision with two important implications in NJ. First, land taken by eminent domain must be intended for a public purpose, not for exchanges with private parties. Second, governments must treat property owners fairly and avoid misrepresenting their intentions when taking private property.

The property owner in this case was represented by Richard DeAngelis, Esq., a former attorney at our firm and who is currently at Connell Foley LLP, and our colleagues at the Pacific Legal Foundation also joined the cause as amici. We commend them on this victory and wish them all the best as they continue advocating for private property rights.

To read the Court’s opinion, click here.