Appendix — MiPro Homes, LLC v. Mount Laurel Township, New Jersey (No. 06-1345)

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APPENDIX A

SUPREME COURT OF NEW JERSEY

MOUNT LAUREL TOWNSHIP, Plaintiff-Respondent,

Vv.

MiPRO HOMES, L.L.C., Defendant-Appellant, and

Lorraine C. Elbon and 190 Elbo, L.L.C., Defendants, and

Builders League of South Jersey, Inc., a New Jersey non-

profit corporation, Defendant-Intervenor-Appellant.

Argued May 1, 2006.

Decided Dec. 7, 2006.

PER CURIAM.

We affirm the holding of the Appellate Division for the

reasons expressed by Judge Skillman in his thoughtful and

well-written opinion. We recognize, as did the panel below,

that the citizens of New Jersey have expressed a strong and

sustained public interest in the acquisition and preservation

of open space. The Appellate Division points to the

numerous statutes enacted in the 1960s and 70s, and even

more recently in the 1990s, authorizing loans and grants to

expand the State’s Green Acres Program. Most pertinent

here, various of those statutes provide municipalities with the

power of eminent domain to acquire land for recreation and

conservation purposes. Mt. Laurel Twp. v. MiPro Homes,

L.L.C., 379 N.J. Super. 358, 371-372, 878 A.2d 38 (App.

Div. 2005) (citing New Jersey’s Green Acres statutes,

N.J.S.A. 13:8A-1 to -55, authorizing state and local

governments to acquire land for recreation and conservation

purposes). Even more telling, New Jersey residents have

voted repeatedly for the issuance of state and county bonds to

provide funding for open space acquisition.

That Mount Laurel Township sought to limit

development, thereby to limit the overcrowded schools,

traffic congestion and pollution that accompanies

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development, does not alter our disposition of this case. The

town’s motive is not inconsistent with the motive driving the

public interest in open space acquisition generally. See N.J.

Dep’t of Envil. Prot., Smart Growth, at

http://www.state.nj.us/dep/antisprawl/ (last modified Nov.

14, 2005) (stating that New Jersey is “the nation’s most

densely populated state, and the most developed” and that

“fijll-conceived land use and poorly designed development

threatens our vital drinking-water supplies, devours our open

space, spoils our landscape and creates traffic congestion that

pollutes our air.”).

Finally, we note that on remand and the appointment of

condemnation commissioners, the property will be valued at

its fair market value, including value associated with MiPro’s

final subdivision approval obtained twenty-two days before

the filing of the declaration of taking. Cf State ex rel.

Commissioner of Trans. v. Caoili, 135 N.J. 252, 268, 639

A.2d 275 (1994) (stating that “potential subdivision is a

highly material factor bearing on the optimum use of the

property and its fair market value.”).

Justice RIVERA-SOTO, dissenting.

I disagree with the majority’s holding in two fundamental

respects. First, I conclude, much as the trial court did, that

this case presents an improper exercise of the power of

eminent domain. Second, although the majority attempts to

lighten the effect of its ruling by adding to the quantum of

damages to which MiPro Homes, L.L.C. (MiPro) is entitled

as a result of the condemnation proceedings instituted by

Mount Laurel Township (Township), the majority simply

does not go far enough. Therefore, I respectfully dissent.

I.

A.

Unlike the Appellate Division’s broad conclusion that “a

municipality’s acquisition for open space of properties on

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which residential development is planned constitutes a proper

use of the eminent domain power[,]” Mt. Laurel Twp. v.

MiPro Homes, L.L.C., 379 N.J. Super. 358, 362, 878 A.2d 38

(App. Div. 2005)' a conclusion embraced by the majority,

ante, 188 N.J. at 533, 910 A.2d at 618, I subscribe to the

analysis adopted by the trial court, which aptly concluded

that “the condemnation here can best be described as a

random taking without legal justification.”

This case presents the unique and, in my view, egregious

circumstance in which “the real purpose fof the

condemnation] was to prevent yet another residential

development pressure.” In those particular circumstances, I

must side with the trial court when it explained that “[i]f the

Township desires tc continue to purchase property for open

space, it may do so. Those purchases may only be made from

willing sellers, not by resort to condemnation of tracts under

development from private owners unwilling to give up their

properties and vested approvals.”

We have long held that “[t]he exercise of [the power to

condemn} will not be interfered with by the courts in the

absence of fraud. bad faith or circumstances revealing

arbitrary or capricious action.” Texas E. Transmission Corp.

v. Wildlife Preserves, Inc., 48 N.J. 261, 269, 225 A.2d 130

(1966). As early as 1891, our predecessor court held that

private property could not be taken via condemnation save

upon “{a] fair sense ... said to be promotive of the welfare or

convenience of the community....” North Baptist Church v.

City of Orange, 54 N.J.L. 111, 113, 22 A. 1004 (Sup. Ct.

1891) (citation and internal quotation marks omitted). Sixty

years later, we clarified that “the decision of [a] condemnor

is final as long as it acts reasonably and in good faith.” City

of Newark v. N.J. Tpk. Auth., 7 N.J. 377, 385, 81 A.2d 705,

' The Appellate Division refers to MiPro as “Mipro.” However,

MiPro’s written submissions all capitalize the “p” in MiPro, and

both the majority and I have adopted that convention.

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appeal dismissed, 342 U.S. 874 (1951) (quoting 1 Nichols,

Eminent Domain 383 (3rd ed. 1950)) (emphasis supplied).

We ultimately described the standard to be applied thusly:

“The exercise of [the power to condemn] will not be upset by

the courts in the absence of an affirmative showing of fraud,

bad faith or manifest abuse.” City of Trenton v. Lenzner, 16

N.J. 465, 473, 109 A.2d 409 (1954), cert. denied, 348 U.S.

972 (1955).

When gauged through that prism, the Township’s

transparent after-the-fact explanations of its public policy

basis for the condemnation of MiPro’s property simply do

not withstand serious scrutiny. That examination requires

that I conclude, as the trial court inescapably did, that “the

public purpose articulated for the taking of MiPro’s property

for passive open space was not based on a true public need

but solely in response to the community’s sentiment

expressed at the polls, coupled with clear indications from

township officials, that the property be acquired to stop

residential development.” Thus, to the extent the majority

accepts the Appellate Division’s reasoning and rejects the

trial court’s thoughtful analysis and conclusions, I

respectfully dissent.

B.

Furthermore, I reject the Appellate Division’s value

judgment in respect of the social worth of MiPro’s

development plans. According to the panel, the exercise of

the Township’s power of eminent domain would have been

barred if MiPro’s development had been for “medical

rehabilitation and nursing facilities,’ or “multi-family

housing affordable to middle-income families[,]” or even for

MiPro’s “predecessor in title[’s] planned ; . . assisted living

facility on the site[.]” Mt. Laurel Twp. v. MiPro Homes,

L.L.C., supra, 379 N.J. Super. at 376-77, 878 A.2d 38.

Having thus couched the issue presented, the Appellate

Division condemned MiPro’s development plan because its

“development of single-family homes that will be affordable

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only to upper-income families would not serve a comparable

public interest.” Jd. at 377, 878 A.2d 38. In my view, a

judge’s individualized and idiosyncratic view of what is or is

not socially redeeming has no place in determining whether

the sovereign’s exercise of the power of eminent domain is

proper. The issue here was and remains whether the

Township—and not MiPro—acted unreasonably, in bad

faith, or in circumstances revealing arbitrary or capricious

actions. Applying that yardstick, the trial court held—in my

view, correctly—that the Township failed to meet its burden.

I would not disturb that determination, least of all in the

pursuit of some ill-defined social goal.

Il.

Even if the Township’s condemnation efforts could be

justified as a proper taking, I also disagree with the measure

of damages the majority allows. According to the majority,

“on remand and the appointment of condemnation

commissioners, the property will be valued at its fair market

value, including value associated with MiPro’s final

subdivision approval obtained twenty-two days before the

filing of the declaration of taking.” Ante, 188 N.J. at 534, 910

A.2d at 618 (2006). That measure of damages is, to me,

woefully inadequate.

The relevant facts are past dispute: MiPro’s property was

zoned for residential use, precisely the use MiPro intended,

and, hence, no variances were required; the only

governmental approval MiPro sought—and validly

secured—was a subdivision approval to subdivide one large

lot into smaller, residential lots that nonetheless each still

conformed to the requirements of the Township’s zoning

ordinance; the Township failed to amend its zoning

ordinance to list MiPro’s property as other than for

residential use in anything even remotely close to a timely

and fair manner; and, the Township’s obvious purpose was

not to increase open space for the use and enjoyment of its

citizens, but plainly to forestall additional development and

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its concomitant additional demand on municipal facilities or

services.

In that context, limiting the condemnee’s recovery to the

fair market value of his property, including any increase in

the value resulting from the subdivision approval, denies the

property owner the basis of his bargain. MiPro purchased this

property with the intent of developing a single-family

housing development. MiPro acted on that intent, secured the

required permits and commenced construction. Once MiPro

secured its permits and acted in reliance thereon, MiPro’s

rights became vested. See generally N.J.S.A. 40:55D-49

(granting three-year non-disturbance period to major

subdivision or site plan preliminary approval); N.J.S.A.

40:55D-52 (granting two-year non-disturbance period to

zoning final approvals). It is obvious that MiPro engaged in

this course of conduct for a reason: to profit from the

development and sale of single-family residences.

Central to our system of justice is the concept that “[ajn

injured person is entitled to be made whole.” Patusco v.

Prince Macaroni, Inc., 50 N.J. 365, 368, 235 A.2d 465

(1967). In that same vein, “(t]he goal of compensatory

damages is to restore the plaintiff to the same position it was

in prior to the occurrence of the wrong.” Material Damage

Adjustment Corp. v. Open MRI of Fairview, 352 N.J. Super.

216, 232, 799 A.2d 731 (Law Div. 2002). Those core

principles lead to but one fair and equitable conclusion: that,

unless the Township can demonstrate that MiPro was unable

or unwilling to complete that development, the proper

quantum of damages arising from this taking is the aggregate

of MiPro’s restitution damages” and expectancy damages.’

? Those include MiPro’s development costs to date, including

acquisition costs. See Material Damage Adjustment Corp. v. Open

MRI of Fairview, supra, 352 N.J. Super. at 232, 799 A.2d 731

(defining restitution as “an award of compensatory damages [that]

requires the full restoration or ‘restitution’ to plaintiff of all

payments made”); Black’s Law Dictionary 1315 (7th ed. 1999)

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Anything less takes from MiPro a property right without just

compensation, something prohibited by our Constitution,

N.J. Const. art. I, § 20 (“Private property shall not be taken

for public use without just compensation.”), and a concept

embodied in the Eminent Domain Act of 1971. N.J.S.A.

20:3-29 (“The condemnee shall be entitled to compensation

for the property, and damages, if any, to any remaining

property, together with such additional compensation as

provided for herein, or as may be fixed according to law.”).

Therefore, because the quantum of damages allowed by

the majority on remand artificially deflates the value of

MiPro’s property, I respectfully dissent.

(defining restitution as “[c]ompensation or reparation for the loss

caused to another”).

> Those include the profit MiPro could reasonably have been

expected to reap as a result of this development project. See Furst

v. Einstein Moomiy, Inc., 182 N.J. 1, 14, 860 A.2d 435 (2004)

(defining “expectation interest” as “the benefit of the bargain’);

Sons of Thunder, Inc. v. Borden, Inc., 285 N.J. Super. 27, 104, 666

A.2d 54° (App. Div. 1995), rev'd on other grounds, 148 N.J. 396,

690 A.2d 575 (1997); Noye v. Hoffman-La Roche, Inc., 238 N.J.

Super, 430, 437, 570 A.2d 12 (App. Div.), certif. denied, 122 N.J.

146, 147, 584 A.2d 281 (1990).

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APPENDIX B

SUPERIOR COURT OF NEW JERSEY, APPELLATE

DIVISION

MOUNT LAUREL TOWNSHIP, Plaintiff-

Appellant/Cross-Respondent,

v.

MiPRO HOMES, L.L.C., Defendant-Respondent/Cross-

Appellant, and Lorraine C. Elbon and 190 Elbo, L.L.C.,

Defendants, and Builders League of South Jersey, Inc.,

Defendant-Intervenor-Respondent.

Argued April 26, 2005.

Decided Aug. 2, 2005.

Before Judges SKILLMAN, GRALL and GILROY.

The opinion of the court was delivered by SKILLMAN,

P.J.A.D.

The issue presented by this appeal is whether evidence

that a municipality’s motive in selecting properties for open

space acquisition is to slow down residential development

makes use of the eminent domain power for this purpose

improper. We conclude that a municipality’s acquisition for

open space of properties on which residential development is

planned constitutes a proper use of the eminent domain

power.

Plaintiff Mount Laurel Township is a rapidly developing

municipality. Between 1960 and 1999, Mount Laurel’s

population grew from 5,249 to approximately 40,000, and it

continues to grow at a rate of approximately 1,000 people per

year. This rapid growth has created a strain on Mount

Laurel’s schools, roadways, police and fire departments and

other municipal services.

For a substantial period of time, Mount Laurel was a

party to exclusionary zoning litigation. In fact, Mount Laurel

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was the defendant in the leading early exclusionary zoning

cases in this State, Southern Burlington County NAACP v.

Township of Mount Laurel, 67 N.J. 151, 336 A.2d 713, cert.

denied, 423 U.S. 808. (1975) and Southern Burlington

County NAACP v. Township of Mount Laurel, 92 N.J. 158,

456 A.2d 390 (1983). A 1985 order in that litigation resulted

in a large section of Mount Laurel being placed in an

“overlay” zone, in which a developer was permitted to

construct five residential units per acre, provided 15% of the

units were set aside for low- and moderate-incoming

housing. This zoning, as well as Mount Laurel’s limited

financial resources, prevented the municipality from

preserving a significant amount of land for open space from

the mid 1980s to the late 1990s.

In 1997, Mount Laurel repealed the zoning ordinance

establishing the overlay zone, as allowed under an “order of

repose” entered in the exclusionary zoning litigation. At the

same time, Mount Laurel’s governing body decided to take

action to slow down the rate of the municipality’s growth and

to preserve additional land for open space. Initially, the

governing body planned to pursue this objective by rezoning

substantial areas for less intensive uses and then seeking to

acquire selected parcels for open space. However, after the

municipality’s counsel advised that this approach could pose

legal problems, the governing body decided instead to pursue

creation of additional open space by a public referendum

authorizing the raising of additional municipal revenue for

this purpose and applying for money available for acquisition

of land for open space under the Green Acres program.

In July 1998, Mount Laurel’s governing body adopted

Ordinance 1998-6, which placed a referendum on the

November 1998 ballot for a proposed tax increase of two

cents per one hundred dollars of assessed value for

acquisition of open space. The interpretative statement

accompanying the referendum indicated that an owner of

property assessed at $125,000 would pay an additional $25 in

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property taxes per year for the next twenty years, for a total

of $500, for this open space acquisition program. The

statement also indicated that the fund created by this

additional tax assessment would be “used exclusively for the

acquisition of land for open space preservation, farmland

preservation, historic preservation, parks and recreation.” In

campaigning for passage of this referendum, the Mayor of

Mount Laurel and other public officials pointed out that the

proposed open space acquisition program would not only

preserve additional open space for passive and active

recreational uses but also relieve residents of the tax burdens

that would result from residential development. The

referendum passed by an overwhelming vote.

The same November 1998 ballot containing this

municipal referendum question also contained Burlington

County and State ballot questions seeking authorization for

the expenditure of additional public funds for acquisition of

open space. The County question sought voter authorization

for a County tax increase of two cents per one hundred

dollars of assessed value (in addition to the municipal tax

increase of the same amount) for open space acquisition. See

Land Trust Alliance, Voters Invest in Parks and Open Space:

1998 Referenda Results at 5 (1999). The State question

sought voter approval of a constitutional amendment

dedicating $98 million annually for thirty years from the

existing State sales and use tax to “finance open space,

farmland, and historic preservation.” Manual of the

Legislature of New Jersey at 922 (Skinder-Strauss Assocs.

1999).

In urging approval of both the municipal and State ballot

questions, the Mayor of Mount Laurel stated in a letter to

voters:

One of the advantages of the State referendum is that

it creates a special preference category for municipalities

that have passed an open space referendum to get

resources quicker. In other words, if you vote “yes”

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on... the municipal referendum for open space, and the

State question also passes statewide, Mount Laurel will

be in a special category whereby the Township will be

able to obtain State funding for open spaces more quickly

and on a higher priority basis.

Both the State and County ballot questions authorizing

additional expenditures of public funds for open space

acquisition were approved. Land Trust Alliance, supra, at 5.

After approval of these referenda, the Mount Laurel

governing body undertook to identify all remaining open

space in the municipality to determine which parcels would

be appropriate for acquisition and could qualify for Green

Acres funding. The governing body retained a consultant,

Bay Pointe Engineering, to assist in this process.

With the consultant’s assistance, Mount Laurel adopted

an Open Space Recreation Plan as required by the regulations

governing the Green Acres program, N.J.A.C. 7:36-6.4.

Mount Laurel’s plan envisions both active and passive

recreational uses in the open space it plans to acquire. These

uses include a proposed bicycle/pedestrian path that will

provide links between the municipality’s parks, schools and

other major public and private facilities. The plan’s goal is to

create a “community of place” within Mount Laurel:

[T]he township is trying to address the need to

provide a community of place, or a defined identity that

characterizes the township. With the absence of a village

core, the township consists of pockets of housing

developments and commercial and _ industrial

developments along the major highways.

The township is now attempting to provide open

spaces to soften the density of development, to provide

relief from the stresses of suburban living, and to provide

a unified land use pattern that links together all parts of

the township. This community of place will be achieved

by providing open spaces, and then linking them together

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with a pedestrian or multi-purpose path system. The path

systems can be located along County and township

streets, through woods and fields and along stream

corridors to provide continuous linkage. Some open

space parcels may be used for recreation, while other

parcels may be used for passive open space and support

of environmentally sensitive areas. The pedestrian

linkage between homes and nearby open spaces will be

the major design element in creating a community of

place.

In determining what land to acquire for open space,

Mount Laurel assigns priority to the acquisition of large

parcels zoned for residential development. The Mayor of

Mount Laurel explained the reasons for this priority in her

letter urging Mount Laurel residents to vote for the

referendum authorizing the raising of additional revenue for

acquisition of land for open space:

The first reason is that residentially zoned land is,

generally speaking, less expensive than commercially

zoned land. I say this even though all land in Mount

Laurel is expensive. Secondly, all of us who are property

owners in Mount Laurel benefit from an

industrial/commercial base which pays very substantial

taxes but which requires few services. Commercial

property owners send no children to our schools and set

out no trash for municipal collection. They remove their

own snow, clean their own parking lots and have a

relatively low incidence of calling the Township for

municipal service such as emergency rescue, police, etc.

On the other hand, if the Township acquires land

upon which homes would otherwise be built, those

homes, just like your home and mine, would put

additional burdens on all of the Township’s taxpayers.

The costs for municipal services are always increasing—

just like our own personal budgets. Educational costs for

however many children each home would send to the

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school system over the entire time that those homes are

standing is obviously a significant cost to all taxpayers

for many years, perhaps indefinitely.

Defendant Mipro Homes, L.L.C. is the owner of a 16.3-

acre parcel located in an area of Mount Laurel zoned for

residential use, which is occupied by a single house. Mount

Laurel initially did not include this parcel in the list of

properties sought to be acquired for open space because

Mipro’s predecessor in title planned to construct an assisted

living facility on the site that would have included units

affordable to low- and moderate-income residents. However,

Mipro contracted to purchase the site in the summer of 2001

for the purpose of building twenty-three single-family

residences, priced between $400,000 and $450,000, and

obtained preliminary subdivision approval for this

development in June 2001. Title to the property was

conveyed to Mipro on August 30, 2001.

When Mount Laurel’s governing body became aware that

the proposed use of the Mipro site had changed from an

assisted living facility to a development for single-family

residences, it decided to add the site to the list of parcels to

be acquired under its open space acquisition program. On

October 10, 2001, the Mount Laurel Township Manager sent

a letter to Mipro which stated that its property had been

“preliminarily listed as a potential parcel to be included in the

Township Recreation and Open Space Plan.” On October 15,

2001, the governing body adopted a resolution that added the

Mipro site to its open space acquisition plan. On

November 6, 2901, the residents of Mount Laurel approved

another referendum authorizing an additional tax increase of

two cents per one hundred dollars of assessed value for

acquisition of open space, which assured adequate funding to

acquire the Mipro site. On April 15, 2002, the governing

body adopted an ordinance authorizing acquisition of the

Mipro site.

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On May 9, 2002, the Planning Board granted Mipro’s

application for final subdivision approval, which was

memorialized by a resolution adopted on June 13, 2002.

After Mount Laurel was unable to obtain the Mipro site

by voluntary acquisition, it brought this condemnation action

on May 24, 2002, and filed a declaration of taking on May

31, 2002. During the twenty-two-day period between the

grant of final subdivision approval and the filing of the

declaration of taking, Mipro performed a significant amount

of site preparation work on the site.

Mipro’s answer to Mount Laurel’s complaint asserted

that the purpose of the condemnation action was to stop

residential development and that this is an unlawful purpose.

The trial court granted the Builder’s League of South

Jersey’s motion to intervene in support of Mipro’s position.

‘During the pendency of this action, the Planning Board

adopted an amended master plan, which stated that the goals

of the recreation and open space plan included acquisition of

“the maximum amount of open space remaining in the

township that can be achieved with sound use of financial

resources” and reduction of traffic congestion and costs of

municipal services. The amended master plan also stated that

“{s]ince Mount Laurel is urbanized throughout the entire

township, all potential parcels are locationally suitable for

permanent open space.” In addition, the Commissioner of the

Department of Environmental Protection (DEP) notified

Mount Laurel by a letter dated August 1, 2002, that its

application for a $400,000 matching grant for acquisition of

the Mipro site had been approved.

The case was brought before the court by cross-motions

for summary judgment supported by voluminous factual

materials. In a written opinion, the trial court recognized that

Mount Laurel had initiated proceedings to condemn Mipro’s

property “for a facially valid purpose, namely, the acquisition

of Mipro’s tract to be held in perpetuity as a passive open

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space.” Nevertheless, the court concluded that Mount

Laurel’s “real purpose” in condemning Mipro’s property

“was to prevent yet another residential development in a

township already under severe development pressure.” The

court stated that “the public purpose articulated for the taking

of Mipro’s property for passive open space was not based on

a true public need but solely in response to the community’s

sentiment expressed at the polls, coupled with clear

indications from township officials that the property be

acquired to stop residential development.” The court

concluded that although Mount Laurel may use public money

to prevent residential development and preserve open space

by voluntary purchase from the owners, it may not resort to

the power of eminent domain for these purposes:

There is nothing legally wrong with the chosen approach

as long as the township purchases the property from a

willing seller. The abuse of discretion and arbitrary,

capricious and unreasonable action by the Township

occurred when it abused the awesome power of eminent

domain for a purpose not contemplated by, and indeed

proscribed by, our Eminent Domain Law .. . If the Township

desires to continue to purchase property for open space, it

may do so. Those purchases may only be made from willing

sellers, not by resort to condemnation of tracts under

development from private owners unwilling to give up their

properties and vested approvals.

Accordingly, the trial court entered summary judgment

dismissing Mount Laurel’s action to condemn Mipro’s

property.

Mount Laurel filed a notice of appeal from the summary

judgment. Thereafter, the trial court entered another order

awarding Mipro $219,815.14 for counsel fees, costs and

other expenses it incurred as a result of the condemnation

action. Mount Laurel filed a separate notice of appeal from

this order. In the second appeal, Mipro filed a notice of cross-

appeal claiming that the trial court should have awarded

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additional damages resulting from the condemnation action.

We now consolidate the appeals.

We conclude that a municipality has statutory authority to

condemn property for open space; that a municipality may

exercise this authority even though it does not presently have

a plan to devote the property to active recreational uses; that

the selection of properties for open space acquisition on

which residential development is planned does not constitute

an improper exercise of the eminent domain power; and that

Mipro did not present evidence that could support a finding

that Mount Laurel’s decision to condemn its property

constituted an abuse of the eminent domain power.

Therefore, we reverse the judgment dismissing Mount

Laurel’s complaint as well as the order awarding Mipro

counsel fees, costs and expenses and remand the case for an

order appointing condemnation commissioners.

Before discussing the primary issue presented by this

appeal, we first address the Builders League’s argument that

Mount Laurel lacked legal authority to condemn Mipro’s site

for open space because the zone in which the property is

located was not designated as open space in Mount Laurel’s

master plan.

Under the Municipal Land Use Law (MLUL), N.J.S.A.

40:55D-1 to -163, a master plan must include a “land use

plan element” that, among other things, shows “the existing

and proposed location, extent and intensity of development

of land to be used in the future for varying types of

residential, commercial, industrial, agricultural, recreational,

educational and other public and private purposes or

combination of purposes.” N.J.S.A. 40:55D-28(b)(2)(b). A

master plan also may contain various optional elements,

including “[a] conservation plan element providing for the

preservation, conservation, and utilization of natural

resources, including, to the extent appropriate, ... open

space.” N.J.S.A. 40:55D-28(b)(8).

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The MLUL requires a zoning ordinance to be

“substantially consistent with the land use plan element and

the housing plan element of the master plan” unless the

governing body adopts a zoning ordinance inconsistent with

those elements “by affirmative vote of a majority of the full

authorized membership of the governing body, with the

reasons of the governing body for so acting set forth in a

resolution and recorded in its minutes.” N.J.S.A. 40:55D-

62(a). However, a zoning ordinance is not required to be

substantiaily consistent with the conservation element of the

master plan.

In any event, this case involves a municipality’s exercise

of the eminent domain power rather than zoning. Moreover,

the statutes authorizing acquisition of land for open space

establish separate administrative procedures designed to

assure that a municipality’s open space program reflects

sound planning. One of those statutes establishes the Office

of Green Acres, N.J.S.A. 13:8C-24(a)(1), which is required

to adopt application procedures for grants and loans and

develop criteria and policies for evaluating and ranking

projects, N.J.S.A. 13:8C-24(b)(3)(a). The Green Acres

Program has adopted detailed regulations that prescribe the

information a municipality must supply in order to obtain

such funding. N.J.A.C. 7:36-1.1 to -21.4.

This information includes a recreation and open space

inventory and a detailed description of the project for which

the municipality seeks funding. N.J.A.C. 7:36-6.4. Before

filing this action, Mount Laurel applied to the Green Acres

Program for funding ‘under these provisions and secured a

$400,000 grant for acquisition of the Mipro site, which

reflects a finding by the Green Acres Program that the Mipro

site is suitable for open space acquisition. Therefore, we

conclude that Mount Laurel’s governing body had authority

to condemn the Mipro site for open space even though the

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master plan did not then identify open space as a planned use

in the area where it is located.‘

The Builders League also argues that Mount Laurel

lacked authority to condemn the Mipro site because the

governing body did not refer this proposed acquisition to the

Planning Board in accordance with N.J.S.A. 40:55D-31. This

section is part of Article IV of the MLUL, which authorizes a

governing body to delegate authority to the planning board

“to prepare a program of municipal capital improvement

projects.” N.J.S.A. 40:55D-29. However, the requirement

that a governing body “refer the action involving such

specific project to pe planning board for review and

recommendation in conjunction with [the] master plan” only

applies if the governing body has authorized the planning

board “to prepare a program of municipal capital

improvement projects” in accordance with N.J.S.A. 40:55-

29. Because there is no indication that Mount Laurel’s

governing body delegated such authority to the Planning

Board, the governing body has authority to condemn the

Mipro site without referring the proposed acquisition to the

Planning Board for its review and recommendation under

N.J.S.A. 40:55D-31.

II

We now turn to the primary issue presented by this

appeal: whether an action to condemn property for open

space may be maintained even if the condemnee can show

that the municipality’s motive in selecting particular

* Because we reach this conclusion, we have no need to decide

whether amendment of the master plan during the pendency of this

action, which recognized that all land in Mount Laurel is

“locationally suitable for open space,” would permit maintenance

of this action under the “time of decision” rule even if there were a

requirement that land be designated in the master plan for use as

open space before it can be acquired for this purpose. See

Manalapan Realty, L.P. v. Township of Manalapan, 140 N.J. 366,

386, 658 A.2d 1230 (1995).

19a

properties for acquisition is to slow down residential

development.

The New Jersey Constitution recognizes that private

property may be condemned for “public use.” N.J. Const. art.

I, § 20. The Eminent Domain Act, N.J.S.A. 20:3-1 to -50,

establishes the procedures that govern eminent domain

actions authorized by other statutory enactments, N.J.S.A.

20:3-6.

Our Legislature has long recognized that preservation of

open space constitutes a public use, and _ therefore

municipalities may utilize the eminent domain power to

acquire property for this purpose. As early as 1917, the

Legislature enacted the “Home Rule Act,” L. 1917, c. 152,

art. XXXVI, § 1, now codified in N.J.S.A. 40:61-1, which

provides that a municipality may acquire property for “open

spaces” by exercise of the power of “condemnation.”

In the 1960s and 70s, the Legislature expressly

recognized the public interest in acquisition of land for open

space by enactment of the New Jersey Green Acres Land

Acquisition Act of 1961, L. 1961, c. 45; N.J.S.A. 13:8A-1 to

-18, the New Jersey Green Acres Land Acquisition Act of

1971, L. 1971, c. 419; N.J.S.A. 13:8A-19 to -34, and the

New Jersey Green Acres Land Acquisition and Recreation

Opportunities Act, L. 1975, c. 155; N.J.S.A. 13:8A-35 to -55.

These statutes declare that it is in the public interest for the

State and local governments to acquire additional land for

“public recreation and the conservation of natural resources,”

N.J.S.A. 13:8A-2; N.J.S.A. 13:8A-20; N.JLS.A. 13:8A-36,

and authorize the State to make loans or grants to

municipalities to acquire property for these purposes,

N.J.S.A. 13:8A-4; N.J.S.A. 13:8A-22; N.JLS.A. 13:8A-38.

These statutes also provide that the power of eminent domain

may be used to acquire land for recreation and conservation

purposes. N.J.S.A. 13:8A-6; N.J.S.A. 13:8A-8; N_J.S.A.

13:8A-24; N.J.S.A. 13:8A-26; N.J.S.A. 13:8A-40; N.J.S.A.

13:8A-42.

20a

In recent years, the Legislature has reaffirmed a

municipality’s statutory authority to utilize the power of

eminent domain to acquire land for open space and

established new methods to generate the financial resources

required for such acquisitions. In 1997, the Legislature

enacted what is sometimes referred to as the Municipal Trust

Fund Act, N.J.S.A. 40:12-15.1 to -15.9, which confers

authority upon a municipality to submit a public referendum

to the voters for approval of a tax levy for “acquisition of

lands for recreation and conservation purposes.” N.J.S.A. 40:

12-15.7(a)(1)(a). This legislation states that “[rjecreation and

conservation purposes” includes “the use of lands

for... open space,” and it specifically authorizes acquisition

of land for this purpose by “condemnation,” N.J.S.A. 40:12-

15.1. Mount Laurel’s residents have approved three referenda

under this legislation authorizing tax levies for the

acquisition of property for recreation and conservation

purposes. Land Trust Alliance, supra, at 5-7.

In November 1998, the voters approved N.J. Const. art.

VI, § 2, 4 7, which dedicates funds from the State sales and

use tax for acquisition and development of land for recreation

and conservation purposes as well as farmland and historic

preservation. Less than a year after adoption of this

consti; itional amendment, the Legislature enacted the

Garden State Preservation Trust Act, N.J.S.A. 13:8C-1 to -

42. This legislation contains legislative declarations that

“there is growing public recognition that the quality of life,

economic prosperity, and environmental quality in New

Jersey are served by the protection and timely preservation of

open space” and that “it is in the public interest to preserve as

much open space... as possible within the mean® provided

by the 1998 constitutional amendment.” N.J.S.A. 13:8C-2.

The Garden State Preservation Trust Act creates a trust fund

to assist “[l]ocal government unit[s],” which include

municipalities, N.J.S.A. 13:8C-3, to acquire land for

recreation and conservation purposes. N.J.S.A. 13:8C-

27(a)(2){a). In addition, this legislation expressly recognizes

21a

that the methods by which a municipality may acquire land

thereunder include “eminent domain.” N.J.S.A. 13:8C-3.

in short, there are multiple statutory enactments that

confer authority upon municipalities to acquire land by

eminent domain for preservation of open space and land

conservation.

lil

The next question is whether a municipality may exercise

this authority even though it does not presently have a plan to

devote the land to an active recreational use or, as Mipro

poses the issue, even though Mount Laurel cannot

demonstrate a “need” to acquire the particular parcel on

which Mipro plans to construct a residential development.

The short answer is that the conservation of land for open

space is a public use, even though the government agency

acquiring the land has no plans to put the property to any

active use. The Green Acres statutes recognize that the State

and local governments may acquire land not only for “public

recreation” but also “conservation of natural resources.”

N.JS.A. 13:8A4-2; N.J.S.A. 13:8A-20; N.J.S.A. 13:8A-36.

The Municipal Trust Fund Act also authorizes municipalities

to acquire land for both “recreation and conservation

purposes,” N.J.S.A. 40:12-15.2, and defines “conservation”

to include “use of lands for . . . open space,” N.J.S.A. 40:12-

15.1. Similarly, the Garden State Preservation Act declares

that “it is in the public interest to preserve as much open

space ...as possible,” N.J.S.A. 13:8C-2, and authorizes the

exercise of the power of eminent domain for this purpose,

N.J.S.A. 13:8C-3. None of these statutory enactments include

either an explicit or implicit requirement that a municipality

have a plan for the active use of land acquired thereunder or

be able to demonstrate a “need” for the acquisition. To the

contrary, the manifest legislative intent in authorizing

acquisition of land for “conservation” and “open space” is to

authorize acquisition for use as passive open space. Thus,

-

22a

these statutory enactments recognize that open space

acquisition may serve the public interest not only by setting

aside land for potential future recreational uses but also by

preventing development that may aggravate a municipality’s

traffic congestion and pollution problems and put additional

strain on municipal services such as schools.

Our conclusion that a municipality has statutory authority

to condemn land to preserve open public space, without any

plan to put the land to active use, is supported by Dolan v.

Borough of Tenafly, 75 N.J. 163, 380 A.2d 1119 (1977). In

that case, one of the issues was whether a municipality’s

condemnation for use as open space of the last substantial

area of vacant, residentially zoned land within its boundaries

was contrary to Mount Laurel, supra, 67 N.J. 151, 336 A.2d

713. Dolan, supra, 75 N.J. at 169, 380 A.2d 1119. There was

no indication that the municipality had a plan to put the land

to any active use. Nevertheless, the Court rejected the

argument that the acquisition would violate Mount Laurel,

noting that it served the “vitally important public purpose[s]”

of the 1971 and 1975 Green Acres statutes. Jd. at 175, 380

A.2d 1119.

The trial court’s conclusion that Mount Laurel can

acquire the Mipro site for open space by negotiation with the

owner but lacks authority to acquire the property by eminent

domain is inconsistent with the statutes authorizing

municipalities to acquire land for open space. These statutes

all provide for voluntary acquisition or condemnation as

alternative methods by which a municipality may obtain title

to land for use as open space. N.J.S.A. 13:8A-6; N.J.S.A.

13:8A-24; N.J.S.A. 13:8A-40; N.J.S.A. 13:8C-3; N.J.S.A.

40:12-15.1. Furthermore, if these statutes were construed not

to provide authorization for condemnation of land for open

space, it would put the landowner in a position to dictate a

purchase price far in excess of the property’s fair market

value. Therefore, the same public purposes that justify the

use of public funds to acquire land for open space by

23a

voluntary acquisition also justify invocation of the power of

eminent domain. Cf Kelo v. City of New London, -- U.S. --,

--, 125 S. Ct. 2655, 2657, 162 L. Ed. 2d 439, 445-46 (2005)

(equating “public use” under the Fifth Amendment Takings

Clause with a “public purpose”).

IV

The trial court concluded that even though Mount

Laurel’s condemnation of the Mipro site was for the “facially

valid purpose” of preserving the site “in perpetuity

as .. . passive open space,” Mount Laurel was not authorized

to condemn the site because the undisputed evidence showed

that its motive in bringing this condemnation action was to

prevent Mipro’s proposed residential development. In

reaching this conclusion, the court relied upon statements by

the mayor and other public officials in urging Mount Laurel

residents to vote for the public referenda authorizing special

tax levies for open space acquisition.

“It is well-established that a reviewing court will not

upset a municipality’s decision to use its eminent domain

power ‘in the absence of an affirmative showing of fraud,

bad faith or manifest abuse.”” Township of West Orange v.

769 Assocs., 172 N.J. 564, 571, 800 A.2d 86 (2002) (quoting

City of Trenton v. Lenzner, 16 N.J. 465, 473, 109 A.2d 409

(1954), cert. denied, 348 U.S. 972 (1955)). “Courts will

generally not inquire into a public body’s motive concerning

the necessity of the taking...” Borough of Essex Fells v.

Kessler Inst. for Rehab., Inc., 289 N.J. Super. 329, 337, 673

A.2d 856 (Law Div. 1995). Whether a taking is for a public

use “is largely a legislative question beyond the reach of

judicial review except in the most egregious circumstances.”

See Township of West Orange v. 769 Assocs., supra, 172 N.J.

at 576, 800 A.2d 86.

We conclude that even if the primary goal of Mount

Laurel’s open space acquisition program in general, and the

condemnation of the Mipro site in particular, is to slow down

24a

residential development in the municipality, this does not

provide a foundation for finding that the municipality’s use

of eminent domain for this purpose constitutes fraud, bad

faith or manifest abuse. Mount Laurel had a reasonable basis

for concern that additional residential development would

aggravate traffic congestion and pollution problems in the

municipality and impose added stress on its school system

and other municipal services. Such concerns are reflected in

this State’s public policy “to halt suburban sprawl.” Mount

Olive Complex v. Township of Mount Olive, 340 N.J. Super.

511, 541, 774 A.2d 704 (App. Div. 2001), remanded for

reconsideration, 174. N.J. 359, 807 A.2d 192 (2002), decision

reaffirmed, 356 N.J. Super. 500, 813 A.2d 581 (App. Div.),

certif. denied, 176 N.J. 73, 819 A.2d 1189 (2003). The DEP

recognized that Mount Laurel’s acquisition of the Mipro site

promotes this objective by approving a $400,000 grant for

the acquisition. Moreover, although Mount Laurel’s

governing body has made a policy decision to focus in its

open space acquisition program upon parcels that are likely

to be the subject of residential development, the properties it

acquires under the program nevertheless serve the public

purpose of preserving open space.

Furthermore, Mount Laurel is not precluded from

acquiring the Mipro site for open space simply because the

developer performed site preparation work during the

twenty-two-day period between the grant of final subdivision

approval and the filing of the declaration of taking. We

assume that once its right to acquire title is established,

Mount Laurel will restore the site to its natural state.

This is not a case such as Kessler Institute, supra, 289

N.J. Super. 329, 673 A.2d 856, in which the court dismissed

an action to condemn property on which the owner planned

to construct medical rehabilitation and nursing facilities, or

the unreported opinion of this court relied upon by

respondents that affirmed dismissal of an action to condemn

land on which the owie” planned to construct a development

25a

that would have provided multi-family housing affordable to

middle-income families. In those cases, the condemnees’

proposed uses of their properties implicated significant

public interests, and the courts found abuses of the eminent

domain power in the municipalities’ attempts to prevent

those uses. If Mount Laurel had attempted to condemn

Mipro’s property when its predecessor in title planned to

construct an assisted living facility on the site, a similar

finding might have been warranted. However, Mipro’s plan

to construct a development of single-family homes that will

be affordable only to upper-income families would not serve

a comparable public interest.

Finally, we note that there is no indication that the Mipro

site was treated differently than other large tracts of vacant

land on which residential developments were planned. Mount

Laurel’s acquisition of the Mipro site is simply one

component of a broad-based municipal program for

acquisition of additional open space, approved by Mount

Laurel’s residents in multiple public referenda, in which

priority is given to acquisition of properties that are likely to

be the subject of residential development. Thus, this is not a

case in which a condemnation action ostensibly brought for a

legitimate public purpose, such as acquisition of additional

open space, was actually brought for a discriminatory reason

or other improper motive. Therefore, this case is governed by

the general rule that “[cJourts will generally not inquire into a

public body’s motive concerning the necessity of the taking

or the amount of property to be appropriated for public use.”

See Kessler Institute, supra, 289 N.J. Super. at 337, 673 A.2d

856. Applying this rule, there is no basis for a finding of

abuse of the eminent domain power in Mount Laurel’s

condemnation of the Mipro site.

Accordingly, the final judgment dismissing Mount

Laurel’s complaint is reversed and the case is remanded to

the trial court to appoint condemnation commissioners to

value the property. Because the post-judgment order

26a

awarding Mipro counsel fees, costs and other expenses was

based on the dismissal of this condemnation action, see

N.J.S.A. 20:3-26(b), which we have determined Mount

Laurel is entitled to maintain, that order also is reversed.

27a

APPENDIX C

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE COMMITTEE ON OPINIONS

MOUNT LAUREL : SUPERIOR COURT

TOWNSHIP, : OF NEW JERSEY

: LAW DIVISION

Plaintiff : BURLINGTON

: COUNTY

vs. : DOCKET NO. 1-1745-02

MIPRO HOMES, L.L.C.,

LORRAINE C, ELBON, : Civil Action

and 190 Elbo, L.L.C., :

Defendants : OPINION

BUILDERS LEAGUE OF

SOUTH JERSEY, INC.,

Intervenor

On May 24, 2002, the Township of Mount Laurel

(“Township” or “Mount Laurel”) filed a Verified Complaint

and Order to Show Cause seeking to condemn property

owned by Mipro Homes, L.L.C. (“Mipro”) known as Block

600, Lots 2.0, 2.03 and 2.05 on the Official Tax Map of

Mount Laurel Township, also known as High Pointe Estates.

Mipro answered on June 14, 2002 and filed a motion

returnable June 21, 2002, also the return date of Mount

Laurel’s Order to Show Cause, seeking an order denying the

relief sought by Mount Laurel, namely, the right to condemn

and the appointment of commissioners. Mipro also requested

discovery. Mipro’s relief was granted by Order dated

September 10, 2002.

Builders League of South Jersey (“BLSJ”’) moved to

intervene. That application was granted on August 2, 2002.

Subsequently, on August 29, 2002, a discovery order was

entered allowing Mipro’s counsel to depose certain Mount

Laurel officials and to serve a Demand for Production of

28a

Documents. Thereafter, cross-motions for summary

judgment were filed and the matter was orally argued before

the court on May 27, 2003.

The property in question consists of 16.43 acres and is

zoned for residential use. On July 30, 2001, Mipro executed

an agreement to purchase the property from 190 Elbo, L.L.C.

Mipro’s application for Conditional Preliminary Major

Subdivision Approval was granted by the Mount Laurel

Township Planning Board on May 10, 2001 and the

Resolution memorializing that approval was adopted on June

14, 2001. The approved plan called for 23 single family

building lots on which Mipro intended to build houses in the

$400,000.00 to $450,000.00 range. The purchase by Mipro

was consummated on August 30, 2001. In February, 2002,

after the conditions of the initial approval were satisfied,

Mipro applied to the Planning Board for Final Major

Subdivision Approval. Following a hearing before the Board

on May 9, 2002, the application was granted. Site work,

consisting of clearing, grading, excavation for sewer and

stormwater lines, a retention basin and the stockpiling of dirt,

began imrnediately thereafter.

In early December, 2001, several months after the initial

approvals were obtained, Mount Laurel adopted a resolution

authorizing an application for Open Space Preservation

Funding to the Burlington County Board of Chosen

Freeholders. Appraisals were prepared by J. McHale &

Associates dated February 11, 2002, and Renwick and

Associates dated February 27, 2002, each using an evaluation

date of January 21, 2002. On April 1, 2002, Ordinance 2002-

4 was introduced. It authorized the acquisition of Mipro’s

property based upon a completed “qualification for the Green

Acres Incentive Grant Program within the New Jersey

Preservation Trust” and contained a determination by the

Township Council that the property “is under severe

development pressure” and “has been made the subject of a

major residential subdivision application.” The Ordinance

29a

also recites that the property is “within Mount Laurel

Township’s open space inventory.”

Unilateral discovery was taken by Mipro which included

the production of documents from the Township as well as

depositions of George Morris, Deputy Manager of the

Township, John Maczuga, formerly employed by Bay Pointe

Engineering as director of planning, Louis Glass, township

planner for 17 years, and Harry McVey, a partner in Louis

Glass Associates.

Mount Laurel maintains that two distinct legislative

enactments justify its condemnation of Mipro’s property

even though the only “public purpose” of the acquisition is to

“conserve” the property in its natural state and there is no

present or reasonably foreseeable “need” for the property for

any specific public purpose. Those enactments are N.J.S.A.

40:12-15.1, et seq. approved February 28, 1997, and N.J.S.A.

13:8C-1, et seq. effective June 20, 1999. The first of those

laws provides that a governing body of a municipality may

submit to the voters a proposition authorizing the imposition

of an annual levy for the purpose of acquiring, developing

and maintaining lands for recreation and conservation

purposes, acquiring farm land for preservation, the historic

preservation of historic properties and the payment of debt

service related thereto. The second enactment which

establishes the Garden State Preservation Trust, contains

legislative findings that enhancing the quality of life of the

citizens of New Jersey is a “paramount policy” and that

acquisition and preservation of open space, farm land and

historic properties enhances the character and beauty of the

State, providing “its citizens with greater opportunities for

recreation, relaxation and education; that the lands and

resources now dedicated to these purposes will not be

adequate to meet the needs of an expanding population in

years to come; ...and that it is necessary and desirable to

provide funding for the development of parks and other open

space for recreation and conservation purposes.” (Emphasis

j

30a

added.) Mount Laurel points to that portion of the Act which

states that

“The Legislature therefore determines that it is in the

public interest to preserve as much open space..., as

possible within the means provided by the 1998

constitutional amendment; .. .”

Mount Laurel argues that N.J.S.A. 13:8C-1, et seq.

generally provides for and “specifically articulates” the

definition of “development easement” in terms of the interest

of the public in “stopping development.” The Township

contends that “stopping development” is not only permissible

but is, in itself, a laudatory goal which does not run afoul of

either the Municipal Land Use Law (MLUL) or the Eminent

Domain Act of 1971, N.J.S.A. 20:3-1, et seq. Essentially, it is

Mount Laurel’s position that the law authorizing referenda

and the Preservation Trust Fund are instruments which allow

the Township to take properties under development if the

sole goal is to preserve the land in perpetuity and the

stopping of development is a _ legitimate collateral

consequence of such taking. In furtherance of its goal to

acquire as much land, under severe development pressure, as

possible, Mount Laurel placed three referenda on the ballot in

the years following enactment of the enabling legislation.

Each passed overwhelmingly by the voters resulting in the

imposition of a tax levy dedicated specifically to the

acquisition of open space properties by purchase rather than

condemnation. As a result, it is undisputed that Mount Laurel

has negotiated the purchase of numerous properties which

were developable. Indeed, the deposition testimony of

George Morris supports that conclusion: “We were trying to

buy as much as we could for the dollars that the Township

residents had provided, that the County would help fund, and

the State would help fund... And then we would have the

ability in the future to evaluate if we needed active or passive

recreation... We understood that if we purchased one

property a year over 20 years there wouldn’t be anything to

3la

buy in those last 10 years because land is so scarce here in

Mount Laurel.”

Mipro has maintained from the outset that the sole

purpose of the taking is to halt the specific development of

23 houses on the property in question, a motive not condoned

by the law of condemnation or the Municipal Land Use Law

and not supported by the enactments alluded to by Mount

Laurel. Mipro argues that those enactments are merely

funding mechanisms for the purchase of open space from

willing sellers and not the taking of private property from

persons unwilling to sell their properties. In support of its

opposition to the condemnation, Mipro presents what it

considers to be powerful and overwhelming evidence that the

Township has embarked upon a crusade to stop development

under the guise of conservation, a motive that is absolutely

prohibited by our case law.

The evidence presented to this court by Mipro is

undisputed. It consists primarily of deposition testimony and

documents produced by the Township in answer to discovery

requests or previously produced by way of a rather

substantial appendix to the Township’s initial brief in support

of its Order to Show Cause. Examples of Mipro’s evidence

concerning improper motive by the municipality include: (1)

Signs throughout the Municipality on property purchased for

open space read: “More Acres Saved From Development—

Your Open Space Dollars At Work.” (2) On January 7, 2002,

at the reorganization meeting of the Township Council,

outgoing mayor, Geraldene Nardello said that: “We have

identified other residential subdivisions with preliminary

approvals adjacent to the intersection of Hainesport Road and

Elbo Lane. As on Hooten Road, we have interfered with the

plans of the developers who have already received

preliminary approval. We will continue to do so until the

taxpayers acquire the land and it remains open space

forever.”” (Emphasis added.) (3) Various newspaper articles

quote the Township Solicitor as stating that the Township’s

32a

goal is to “protect the land from development” and to

actively acquire land “slated for development.” (4) George

Morris, in his deposition, testified that he was primarily

responsible for the day-to-day handling of open space issues

from the Winter and early Spring of 1998. He said that he

never consulted with the Planning Board in regard to the

Master Plan and that he “assume[d] that the Township’s

interest was in potentially reducing the number of residential

units in the Township . . .” He testified that when he prepared

the list of properties for acquisition, he did not consider

whether those parcels could be used for open space

recreation but only that they could be used for passive

purposes. He confirmed that no study was undertaken to

determine how much passive open space was needed in

Mount Laurel or what the active open space needs were. He

was asked: “How did you evaluate when you have enough

active recreation? How did you make that analysis?” He

answered: “I think the governing body will make that

analysis when the voters tell them enough is enough.”

Regarding a plan for the acquisition of property, Morris

testified that he “didn’t produce the master plan . . . No, I did

not consult the master plan.” The Township planner, “Mr.

Glass[,][was not involved] in the process because he was not

supposed to be part of the process.” Insofar as a benefit to the

Township was concerned, Morris stated: “The acquisition of

properties that’s residentially zoned served the purpose of

increasing our open space and it had the benefit of removing

the potential that homes could be developed there.” He

confirmed that no properties other than High Pointe Estates

“have become the subject of eminent domain complaints.”

As to the amount of property to be acquired under his plan,

Morris stated: “We haven’t set a maximum goal.” When

asked if there was a minimum goal, he answered: “No.”

Regarding the letter sent to all residents by Mayor Nardello,

Morris was asked: “Is the implication as I suggested that

there would be a savings to the residents of Mount Laurel if

residential property was acquired as open space and not

33a

developed? Is that a fair reading in your opinion of that?” He

answered: “A fair reading is if homes are developed there

would be a significant cost.” (5) John Maczuga testified that

his company, Bay Point Engineering, was hired to do an

“open space and recreation plan geared... to... the State’s

Planning Incentive Grant Program .. .” He also testified that

there was no rating or ranking system by which properties

were prioritized for acquisition, that he relied exclusively

upon the Township for that information without knowing

specifically who or which subordinate boards were

formulating those decisions. His instructions were “to be

very aggressive in terms of open space acquisition...”

“They were concerned that they had placed open space

acquisition on the back burner for a long time, and they had a

lot of catching up to do.” Fairly early on in the process, he

had obtained information as to which properties had

development approvals. He explained why the Township was

not interested in the Mipro parcel previously: “It’s my

understanding now that it was going to be an assisted living

facility. It was long in the process, and had some Mount

Laurel [Mount Laurel II] significance, affordable housing

significance to the Township.” Concerning “need,” he was

asked: “Okay. Do you have an opinion, if any, whether

additional open space is needed in Mount Laurel Township; |

needed?” To which he answered “Needed?...I can’t—I

have not empirically analyzed that situation, other than what

we did in the open space and recreation plan itself and there

was a need.” (6) Louis Glass, who serves as a Township

planner for both the planning board and zoning board of

adjustment for nearly 27 years, testified that he prepared

most of the 2000 Master Plan except for the portion on

Recreation and Open Space which was copied from work

done by Bay Point Engineering. That portion of the Master

Plan was not amended by the Planning Board until January 9,

2003 and it contained no projected “need” for open space,

reciting only that the Township had 814 acres of open space

dedicated to public use. Mr. Glass acknowledged that the

34a

Master Plan contains a statement on Page L-2 as follows:

“Therefore, the Township is in an excellent position to

provide park and recreation land under this standard”

(referring to the Population Methodology of Computing

Open Space Need). Quoting further, Mr. Glass said: “By

combining the public and school lands, the Township now

has 721 acres available which is well in excess of the amount

of land needed according to the standard.” When questioned

concerning the application of the Percentage of Area Method

of determining the need for open public space, Glass stated:

“That paragraph on the Percentage of Area Method says

using that method Mount Laurel would need 425 acres of

local parks and then it concludes with the sentence ‘at the

current time, the township has a two hundred and ninety-six

acre surplus using this method.” Regarding the dedicated

funding source available to Mt. Laurel as a result of the

referenda passed by the electorate, the following colloquy

occurred:

“A. Since the township now has a dedicated funding

source, all parcels are subject to potential open space

acquisition.

Q. Mr. Glass, am I correct or would I be correct in

reading that any undeveloped parcel now under the

master plan amendment could be acquired for open

space?

A. Correct.

** *

Q. One more question, Mr. Glass. Do you have any

knowledge whatsoever as to what use the township

proposes to put the parcels that it has acquired since the

2000 Master Plan, what use specifically they will put the

parcels to?

A. No.”

35a

This matter lends itself to dispositic hy summary

judgment. In fact the parties agree that :re exists no

material factual dispute. Rather it is the interpretation of

those facts as they have been applied in a widely disparate

way to controlling case law that is disputed. Nonetheless, I

am satisfied that no fair minded fact finder could reach but a

single conclusion. Brill v. Guardian Life Insurance Company

of America, 142 N.J. 520 (1995).

My analysis must begin with a review of the governing

principles of law. According to both the United States

Constitution and the Constitution of New Jersey, a

governmental entity is permitted to take private property for

public use in exchange for just compensation. U.S. Const.,

amend V, amend XIV; N.J. Const., Art. I, Par. 20, State v.

Silver, 92 N.J. 507, 513 (1983). Since condemnation is

exclusively a legislative function, broad discretion is granted

to condemning authorities to determine what property and the

amount of property are to be taken. State v. Lanza, 27 N.J.

516, 530 (1958); Twp. of West Orange v. 769 Acres, 172 N.J.

564, 571 (2002); Texas Eastern Transmission Corp. v.

Wildlife Preserves, Inc., 48 N.J. 261, 269 (1966); Borough of

Essex Fells v. Kessler Inst., 289 N.J. Super. 329, 387 (Law

Div. 1995). As a general rule courts will not inquire into a

condemnor’s motive or the necessity for the taking. [bid.

Consequently, when a governing body adopts an ordinance in

the exercise of its power of eminent domain, that

determination is presumed valid. Taxpayers Assoc. V.

Weymouth Township, 71 N.J. 249, 264 (1976). Courts will

only consider evidence concerning the legislative purpose, in

the context of a facially valid ordinance, “when the

reasonableness of the enactment is not apparent on its face.”

Riggs v. Twp. of Long Beach, 109 N.J. 601, 613 (1988). The

party asserting fraud, bad faith, abuse of discretion or

arbitrary or capricious action has the heavy burden of proof,

State v. Malibu Beach, Inc., 209 N.J. Super. 291, 296 (Law

Div. 1986), by clear and convincing evidence. Essex City

Improvement Authority v. RAR Dev. Assoc's, 323 N.J. Super.

So ——

a

36a

505, 516 (Law Div. 1999). Courts will not enforce a decision

to condemn if the condemning authority has acted with

“improper motives, bad faith or some other consideration

amounting to a manifest abuse of the power of eminent

domain.” Borough of Essex Fells, supra (quoting Tennessee

Gas Transmission Co. v. Hirshfield, 39 N.J. Super. 286, 288

(App. Div. 1956). Thus, a condemnation may be set aside

when a public body condemns for an authorized purpose, but

is motivated by an ulterior, disguised purpose which is not

authorized by law. Essex Fells, supra, at 338.

Bad faith “generally implies the doing of an act for a

dishonest purpose,” and also contemplates ill will. /d. at 338.

Bad faith exists when there is a valid purpose for taking

property, but the condemning authority is motivated by

reasons beyond the power conferred by law, i.e., a pretext.

With these general principles in mind, I must now engage

in a detailed analysis of the cases relied upon by the parties in

this litigation. I begin first with Borough of Essex Fells v.

Kessler Institute, 289 N.J. Super. 329 (1995). Essex Fells is a

small borough and 20% of its land is devoted to municipal,

park and other open space. Kessler is a non-profit

rehabilitation facility which provides treatment and services

to people with physical disabilities in 3 north Jersey towns. It

looked to Essex Fells to establish a skilled nursing facility

and transitional living facility consisting of 20 units. The

parcel selected by Kessler is 12.5 acres adjacent to a 68 acre

parcel of municipally owned land, mostly wooded and

containing the borough’s wells and water recharge area.

There are several buildings on the tract which is zoned for

educational use. The borough purchased approximately 2.5

acres for a soccer field and its officials actively sought

residential developers to buy the balance of the property and

to construct single family houses. A year before the borough

bought the acreage for a soccer field, its planner wrote_a

report suggesting that the educational zoning be-atmended to

residential, but there was—no~fécommendation that the

_

ne

37a

borough acquire it for any purpose. When Kessler expressed

an interest in the property, the mayor said to Kessler

representatives that the town “had never wanted anything but

single family housing” there. Kessler, nevertheless, signed a

purchase agreement for the parcel and applied to the planning

board for conditional use amendment of the zoning

ordinance. Public sentiment expressed at the planning board

meetings was clearly against Kessler’s proposal. The

borough’s retained expert planner and land use attorney

found Kessler’s proposal appropriate prompting the mayor

and council to authorize the preparation of a zoning

ordinance amendment to allow Kessler’s development. Local

citizens formed the Essex Fells Preservation Committee

which conducted several rallies in opposition to the plan and

distributed a flyer opposing the mayor and council as well as

making highly discriminatory comments about persons with

disabilities. As a result of this pressure, local officials

decided to send a questionnaire to each residence rather than

amending the ordinance. It asked whether they would pay

additional taxes to purchase the property for park land. The

results were 3 to 1 in favor of acquisition. A resolution

authorizing the purchase was passed and an offer to purchase

was extended to Kessler. The offer was rejected and Kessler

immediately applied for a zoning variance. The borough

adopted an ordinance authorizing condemnation of the

property and the court thereafter stayed proceedings on the

condemnation complaint penczng resolution of Kessler’s bad

faith claim. The zoning board of adjustment thereafter denied

Kessler’s application for a zoning variance.

The trial court, recognizing the general principle that

courts will not-erdifiarily inquire into a public body’s motive

—eoncerning the necessity of a taking or the amount of

property to be acquired for public use, Riggs v. Long Beach

Twp., 109 N.J. 601, 613 (1988), determined that a decision to

condemn shall not be enforced where there has been a

showing of “improper motives, bad faith, or some other

consideration amounting to a manifest abuse of the power of

38a

eminent domain.” Tennessee Gas Transmission Co. v.

Hirschfield, supra. The court determined that “public bodies

may condemn for an authorized purpose but may not

condemn to disguise an ulterior motive.” Citing numerous

cases from other states, there having been in New Jersey at

the time for that proposition, Judge Fuentes said:

“These cases made it clear that where a condemnation

is commenced for an apparently valid, stated purpose but

the real purpose is to prevent a proposed development

which is considered undesirable, the condemnation may

be set aside.” (Emphasis added.)

Applying those principles of law to his understanding of

the record before him, Judge Fuentes concluded that the

proposed taking of Kessler’s land for a public park:

wed

..Wwas...not based on a public need but in

response to community opposition to Kessler’s propesed

use of the property.”

Engaging in the fact sensitive analysis required in such

situations, the Judge alluded to statements of public officials

such as, “I would not prefer to have Kessler Essex Fells,

okay?” and “You’ve got to condemn and you’ve got to

develop a public need... we’ve got to come up with a need

that the court will allow.” He also concluded that his review

of the record failed to disclose “any public discussion, debate

or demand for any additional park land or open space until

public opposition to Kessler’s development plans intensify.”

The judge dismissed the complaint, being “clearly convinced

from the...record...that the borough proceeded to

condemn . . . Kessler’s development. . .”

Plaintiff and defendant each cite the unpublished opinion

in Township of North Brunswick v. U.S. Homes Corporation,

A-2929-1T2 (App. Div. 2003) in support of their opposite

positions. There the property in question was 105 acres of

farm land zoned I-2 industrial and Plaintiff was the contract

purchaser. In 1989, the governing body approved the open

39a

space and recreation element of its 1984 master plan which

included a recommendation that the municipality acquire an

additional 109 acres for active recreation space to include

baseball, softball, football and soccer fields as well as

basketball, tennis and volleyball courts. The plan was based

upon a standard adopted by the Department of Community

Affairs and the National Recreation and Park Association of

8 acres per 1000 persons for developed recreational areas.

The 1989 plan specifically identified the property in question

as an alternate site in the event that other sites deemed more

suitable were unavailable. The 1994 reexamination report

recommended rezoning the property in question to

agricultural-low density residential to allow for single family

houses on 6 acre lots. No rezoning occurred because farming

operations continued. In 1994, the governing body was

opposed to any development of the site. That sentiment was

expressed in a formally adopted resolution. Defendant

acquired an interest in the property in 1997 and presented a

concept plaa in 1999 for senior citizens housing to the

planning board. The board acquiesced and submitted a draft

ordinance to the governing body to rezone the property as a

Planned Retirement Community. Four months before, the

township adopted a resolution to ask the voters to approve a

3 cent per $100 assessed value tax to fund an open space

preservation program. At the November 1999 election, the

referendum was approved after which the township adopted

an ordinance that created an Open Space Committee, the

purpose of which was to “recommend open space

acquisitions and programs.” In September 2000, U.S. Homes

applied for a use variance. In October 2000, the township’s

expert environmental consulting engineering firm submitted

its plan for recreation and open space which showed a need

for additional recreational facilities “as soon as possible.” At

that time, the township only had about 40% of its

recommended active recreation area. This was based upon a

need for 125 more acres to meet year 2000 needs and more

land for projected needs for 2015. Further, there was an

40a

“extreme overuse” of existing facilities and the report made

acquisition of the site the “township’s number one priority.”

Public heariy.gs were conducted and the plan was referred

to the planning, ooard for inclusion in a revised recreation and

conservation element of the master plan. The planning board

held a hearing at which U.S. Homes admitted that more

recreational space was needed. The master plan was

thereafter amended and the concept plan was developed to

include 6 little league softball fields, 4 baseball fields and 5

soccer fields. A $15,000,000.00 bond ordinance was adopted

and $6.5 million was offered to U.S. Homes for the site.

U.S. Homes alleged “bad faith” on the part of. the

township, asserting that its sole aim was to stop development.

The Appellate Division set forth the same basic legal

principles as did Judge Fuentes in Essex Fells. The court said

the record before it was “in strong contrast” to that in Essex

Fells because the township was able to substantiate, by way

of history, the need for more recreational and open space. It

determined that there was no requirement for an evidentiary

hearing because the record before it had been fully

developed. The court agreed with the trial judge’s

conclusions that “the municipality had the discretion to

decide not to convert existing passive recreation areas into

athletic fields,” a decision not subject to judicial interference.

It would have been “impractical to convert undeveloped

conservation areas into active recreational facilities because

they ‘are dedicated water shed areas or wetlands,’ [andj

almost all are wooded.” The various sports programs

attracted significant numbers of children: soccer—850; youth

football—260; and baseball and softball—780. The court

concluded that the record before it showed at most a

disagreement between the municipality and a private

developer regarding open space requirements “and the

dynamic and often controversial subject of land use public

policy”"——“the type of public policy dispute our system

4la

assigns to resolution by the politically responsive branches of

governments, not to courts.

A second unpublished opinion is also relied upon by the

parties to this litigation to support opposite conclusions. That

case is Twp. of Monroe v. Noonan, A-1443-99T1, A-1512-

99T1, A-1515-99Ti (App. Div. 2001). It is a case in which

appellants challenged a Law Division determination that

Monroe Township acted properly in condemning their

properties for open space and park use. The Appellate

Division reversed. The site consisted of 10 undeveloped

acres in the R-30 Residential District. In 1997, Consolidated

Affiliates, L.L.C. agreed to purchase the property subject to

approval by the zoning board for a Walgreens Drug Store.

However, the application was never heard because of

procedural problems. Applications for a funeral home,

service station and repair shop were denied, withdrawn or

dismissed without prejudice. The township began to consider

acquisition only because of the “diverse, and non-conforming

nature of the applications” being made to the zoning board of

adjustment and the fact that neighboring residents expressed

a preference for a park. The township engineer prepared a

concept plan for a “conservatory” with a walking park and

trails. The township adopted an ordinance to condemn the

tract “purportedly in furtherance of the township’s master

plan goal of producing adequate open space and recreational

facilities for present and future use.” Appellants retained an

expert planner who opined that the condemnation was

actually for a “private purpose ...as a buffer which... is

not a public purpose especially in the context of a recently

adopted Master Plan and even more recently adopted Open

Space Plan which target and prioritize other areas...”

The Appellate Division again set forth the guiding

principles which govern condemnation actions and reiterated

that the burden of proof is on the party asserting bad faith to

show ill will or motive by clear and convincing evidence.

The court determined that the stated purpose for acquiring

42a

the site for open space and park use was a pretext for the

improper purpose of precluding commercial development on

the site. This was based, in part, on the engineer’s

certification that residents preferred a park rather than a

commercial use. Moreover, the master plan was adopted

shortly before the condemnation but made no reference to the

“possibility or desirability of acquiring the subject site for

park use or open space.” Finally, the Open Space Plan did

not mention the site. The interest in acquisition was

prompted solely by the proposals to develop the site

commercially.

In applying the law to the facts of this case, I do so by

acknowledging at the outset that the site in question is zoned

for residential use and that the applications filed by Mipro for

development of the tract sought no variances. Secondly, it is

apparent that the condemnation was commenced for a

facially valid purpose, namely, the acquisition of Mipro’s

tract to be held in perpetuity as a passive open space. I am

satisfied, however, by quite clear and convincing evidence in

the record before me that the real purpose was to prevent yet

another residential development in a township already under

severe development pressure. As in Essex Fells, supra, the

credible evidence here demonstrates that the public purpose

articulated for the taking of Mipro’s property for passive

Open space was not based on a true public need but solely in

response to the community’s sentiment expressed at the

polls, coupled with clear indications from township officials,

that the property be acquired to stop residential development.

The impetus for the acquisition was not a real need for more

open space but was the granting of Mipro’s application for

major subdivision approval on May 10, 2001. The

Township’s resort to N.J.S.A. 13:8C-1, et seq. and N.J.S.A.

40:12-15.1, et seq. as a basis to justify the taking of Mipro’s

property, specifically, is totally misplaced. Those enactments,

while setting forth a strong public policy encouraging

municipalities to acquire and preserve land, are basically

funding mechanisms by which a municipality can gain access

43a

to matching funds or dedicated tax funds for the purpose of

purchasing open space and recreation areas. Those laws do

not in any way supercede the Municipal Land Use Law and

the Eminent Domain Act of 1971. Condemnation cannot

replace planning and zoning. Those concepts are governed by

the MLUL. The Eminent Domain Act of 1971 requires that

there be both a public need and a public purpose for the

acquisition of private property.

I will first discuss the evidence which I conclude to be

overwhelming on the issues of “need” for Mipro’s site and

“public purpose” for the acquisition. Without providing the

same detail as I did earlier in this opinion, I refer once again

to the deposition testimony of township officials and its

retained experts. George Morris, a man of relatively little

experience in the area of eminent domain, was made.

primarily responsible for the day-to-day management of open

space issues. It is obvious from his testimony that he was on

a quest, initiated by township officials, to purchase as much

Open space as budgeted funds from dedicated tax levies and

matching funds could buy. There was no open space plan

from which he worked, no coordination with the planning

board or consultation of the Master Plan, and certainly no

prioritization or ranking of properties desirable for and

needed for recreation and open space of either an active or

passive nature. In fact, Mr. Morris was working on the

assumption “that the Township’s interest was in potentially

reducing the number of residential units [to be constructed]

in the Township . . .” The list of properties he prepared had

little to do with actual need, present or future, because he did

not consider whether the parcels on the list could be used for

recreation or passive open space. There was no study or

report from which he sought or could receive guidance as to

the amount of active and passive open space needed, if any.

His answer to one question bears repeating: “I think the

governing body would make that analysis when the voters

tell them enough is enough.” He never consulted the

Township Planner, Louis Glass, who he described as “not in

44a

the process.” He confirmed that only High Pointe Estates had

become the subject of a condemnation complaint even

though other developing and developable parcels remained

free of the condemnation process.

John Maczuga conceded that the Township had no

interest in the Mipro site when it had been approved for an

assisted living facility, clear evidence that the Township had

a preference for that type of development rather than a

residential one. There had been much public commentary by

council members prior to the condemnation reflecting

concern that residential development produced little by way

of tax ratables to offset the rising cost of education and other

municipal services.

Moreover, the various methods used to calculate “need”

for open space, be it for active or passive use, were

conclusive that Mount Laurel has more than is required for

its citizens’ use. The Master Plan was not amended until

January 2003. As amended it referenced no projected “need”

for additional open space. Louis Glass confirmed in his

deposition testimony that present open space acreage well

exceeded the amount necessary for Mount Laurel’s

population. Simply put, he said that the Township’s approach

to open space acquisition is to buy all the land it can with

available funding. “Need” was not a part of the equation.

The public comments by the Mayor and other Council

Members coupled with signs around the Township declaring

that more land has been spared from development is further

evidence that the primary goal of Mount Laurel is to acquire

property to stop development, a collateral consequence of

which is preservation of open space. However, the

preservation of that open space is not even a secondary goal.

The savings of tax dollars for educational purpose and other

municipal services appears clearly to be the objective.

Finally, the fact that Mount Laurel’s voters approved

three referenda for dedicated taxes is nothing more in this

45a

case than a form of public sentiment or outcry in support of

the Township Officials’ efforts to halt residential

development. Such public sentiment is an appropriate

consideration

“...in formulating a Master Plan or enacting a

Zoning Ordinance ... it is not a proper factor in

condemnation. The only justification for condemning a

person’s real property is to fulfill a public purpose or

need. It is the public purpose of need which impels the

condemnation. The condemnation cannot be used as a

pretext to discourage or prevent a particular use of

property. That is the function of the Master Plan and

Zoning Ordinance. In short, condemnation . . . is not a

means to achieve zoning . . .” Township of Monroe v.

Noonan, supra, at pg. 8.

It cannot be overlooked in this litigation that Mount

Laurel initially gave serious consideration to rezoning

portions of the township to achieve the goal of reducing the

impact of residential development. For reasons which do not

appear in the record, however, Mount Laurel opted to

purchase properties rather than to engage in an appropriate

re-examination and reformulation of its Master Plan and

Zoning Ordinance. There is nothing legally wrong with the

chosen approach as long as the township purchases the

property from a willing seller. The abuse of discretion and

arbitrary, capricious and unreasonable action by the

Township occurred when it abused the awesome power of

eminent domain for a purpose not contemplated by, and

indeed proscribed by, our Eminent Domain Law. This case

falls squarely within the prohibitions of Essex Fells and

Township of Monroe v. Noonan. It is also distinguishable

from North Brunswick v. U.S. Homes Corp. in which the

court upheld a condemnation. In that case, there was a “plan”

which showed an immediate need for significant open space.

The Township had met only 40% of its open space

requirements and there was an “extreme overuse” of existing

46a

recreational facilities making acquisition the “Township’s

number one priority.” None of that is present here. There,

too, the planning board had a very active role. The “plan”

was referred to that Board which then revised the recreation

and conservation element of the Master Plan after conducting

public hearings. None of that happened here. The hearings

which were conducted were done by the Township Council,

obviously the inappropriate body for such action. Indeed, the

Planning Board in Mount Laurel was not even consulted. In

North Brunswick, U.S. Homes conceded that a need for more

recreational space actually existed. Here, Mipro does not and

should not, because there has not been shown that a “need”

does exist. The overwhelming evidence in the record is to the

contrary. Mount Laurel’s needs have been satisfied. In short,

the condemnation here can best be described as a random

taking without legal justification. If the Township desires to

continue to purchase property for open space, it may do so.

Those purchases may only be made from willing sellers, not

by resort to condemnation of tracts under development from

private owners unwilling to give up their properties and

vested approvals.

For the foregoing reasons, the Complaint in

Condemnation is dismissed and the Order to Show Cause is

discharged. The evidence shall be retrieved by counsel for

Mount Laurel pursuant to R. 1:2-3. Mr. Baron shall prepare

the order.

JOHN A. SWEENEY, A.J.S.C.