This is the second of a two-part article, the first of which appeared in the previous issue of Conference Quarterly. 

2005 was the year in which the municipal authority to use eminent domain was refined at both the federal and state level.  While both decisions have been extremely controversial and the subject of much criticism, they have also been received favorably by many.  In any event, this represents the current state of the law. 

The United States Supreme Court issued the case of Kelo v. City of New London this summer.  That case concerned the ability of a municipality to use the power of eminent domain to condemn a perfectly thriving, self-sustaining community. 

Up until this time, there was a debate and a question throughout the United States as to whether a strictly economic taking was legal under the power of eminent domain.  It is now clear that a taking for purely economic grounds satisfies the constitutional requirements to support a taking.  The Kelo case is not unlike many similar cases throughout the United States and in fact throughout New Jersey.  There, the municipality wanted to give a facelift to an older community with the hope of generating newer, more invigorating uses, and with that, more tax dollars.  The condemned neighborhood was neither an eyesore, nor a drug or crime magnet.  It was a very nice, well-established community.

There was tremendous dispute and debate throughout the country over Kelo, and while the result was disheartening for many, it proved to be just what the doctor ordered for many municipalities who are actively exploring redevelopment options. 

And in New Jersey, we now know that eminent domain can be used not just for economic purposes, but for open public space preservation purposes as well.  In the case of Mount Laurel Township v. Mipro Homes, a case decided by the New Jersey Appellate Division this summer, at issue was whether a municipality could legally use the eminent domain act to condemn property which had received subdivision approval for substantial residential development.  A trial court had held that the use of eminent domain was improper because, while open space preservation did satisfy the public purpose requirements of eminent domain, in the opinion of the court here the use of eminent domain was to appease the general public’s opposition to the particular development.

According to the appellate division, the intent does not matter.  The court acknowledged that the intent of the use of eminent domain may have been very well to slow residential development.  But nonetheless, that did not turn a legitimate public purpose, that of preserving open space, into an illegitimate purpose.  The court observed that generally, reviewing courts should not look into municipal motivation absent extraordinary cause.  And so the ruling in the Mount Laurel case is that eminent domain is appropriate for open space preservation, even when the process runs parallel with a land use application for the exact same parcel. 

Finally, the case of Township of North Brunswick v. Board of Adjustment of the Township of North Brunswick, addresses a thorny question which I know many municipal officials have pondered previously.  The question is can the municipality sue its own zoning board when it is unhappy with the result.  In this case, the appellate division had no problem accepting the fact that a municipality can sue its own zoning board, and in fact the municipality won.

The question was whether or not a zoning board properly granted a use variance for the construction of a four-story luxury apartment building with 85 units and an average height of 53 ½ feet.  The unit was going to be “affluent adults over the age of 55.” 

The problem is that the area was in the R2 zone.  Not only that, but the zone has been newly designated by the municipality, and the municipality took the position that this use variance was entirely at odds with the master plan as recently readopted.

The question was whether or not a D Variance could be so contrary to the prevailing municipal land use ordinance that in effect you served the municipal function of establishing zoning within the municipality.

The trial court found that the grant of the variance was clearly contrary to the intent and purpose of the Township’s master plan and zoning.  The trial court held that the overall effect of the variance was to alter the character of the area contrary to the plan of the governing body and therefore it is inconsistent with the intent of development scheme.

In affirming the reversal of the zoning board’s issuance of the D variance, the appellate court observed that it is a municipal government that is vested with the ultimate responsibility of establishing the essential land use character of a municipality through the adoption of zoning ordinances.  By contrast, the variance power of a zoning board is intended merely to accommodate individual situations where relief from the applicable ordinance is warranted.

A municipal governing body may sue to protect the integrity of its own legislatively conferred powers.  In other words, a municipal governing body may file suit when a board has exceeded its statutory powers an attempt through a use variance to pose its own view as to the most appropriate use or uses for a particular portion of property. 

The court found that to determine whether municipal governing body has standing to sue regarding the authorization of a use variance, a reviewing court must consider whether the requested variance would substantially alter the character the district as set forth in the applicable zoning ordinance.  To make the determination, the court must take into account factors such as the size of the tract, the size of the tract relative to the sizing character of the district in which it is located and the number of parcels into which the tract will be subdivided as well as the nature and extent of the variation from the district regulations. 

The key issue is whether or not the requested variance will “substantially alter the character of the district as the character has been prescribed by the zoning ordinance.”

Thus, in a rather unusual case, the appellate court affirmed that a trial court’s determination that it was appropriate for the municipality to sue its own zoning board, and that indeed the zoning board exceeded this authority by granting a use variance that so substantially deviated from what was allowed that in fact it was legally impermissible.