In a decision released this morning, the New Jersey Supreme Court upheld the Appellate Division decision in Mount Laurel Township v. Mipro Homes, LLC ( Docket A-85/86-05). The Supreme Court affirmed the right of the municipality to use eminent domain for open space, even in the absence of any prior plan designating the land as open space. The Supreme Court found the action reasonable, even though the Planning Board had approved a 22 lot subdivision of the property and the property had been zoned for the use. The Supreme Court did not agree with the trial court, which found that the “public purpose” involved in the acquisition was the voter’s sentiment, expressed at the polls and in conversations with township officials, and that the property needed to be acquired to stop development. The Supreme Court indicated that acquisition of open space was a “public purpose” and that the local government could acquire the property even if limiting development was a factor.

Justice Rivera-Soto strongly dissented, finding that the case presented a clear illustration of a misuse of governmental power in the exercise of eminent domain.

Most attorneys, prior to the Mipro case, would have thought that the Appellate Division had gotten the law right in the case of Monroe v. Noonan ( A-1443-99-T1, 2001), which held that if land were to be acquired for open space or parkland, and eminent domain were to be used, that land should be on the Township’s Master Plan for such uses.

The development community fears that the Supreme Court’s decision today will permit “ambush acquisition” of property, and will lead to the untrammeled right of the municipality to take land, no matter how it was zoned or where it was in the approval process, simply because influential neighbors would rather have open space than development adjacent to their home and businesses. Long term, this could lead to a substantial diminution of development in the State, since investors will be reluctant to spend money to acquire land, hire planners and engineers, and go through the development process only to find that their project has been deemed “essential open space”.