Jackson Mayor Mike Reina's land swap with Mordechai Eichorn now appears safe as a judge has just dismissed the second legal challenge against the deal.
Back in October 2022, as previously reported here on FAA News, the Jackson Planning Board heard testimony on a proposal an application submitted by Bellevue Estates, LLC, which is owned by Lakewood resident Mordechai Eichorn, to build 4 schools on a 30-acre parcel of land at 443 Leesville Road between Burke and Diamond Road.
Thereafter, as previously reported here on FAA News, Mayor Reina broke the news that in order "to protect existing neighborhoods within Jackson Township and to protect and honor the rights of all Jackson residents," he "successfully negotiated to acquire Eichorn's farm [to keep it for open space]."
This acquisition was to take place in the form of a land swap for Township owned land near the Lakewood Cross Street border.
As previously reported here on FAA News, back in February 2023, the Council unanimously approved the proposed land swap.
The Township's proposal included for Eichorn to receive 4 lots which were not actually owned by the Township. Township officials intended to purchase these lots and then to give them to Eichorn.
However, things goes messy when the owner of two of those lots refused to sell his lots to the Township.
As previously reported here on FAA News, with the Township Council's authorization, Township Attorney Jerry Dasti Esq. filed legal action in New Jersey Superior Court in Ocean County seeking to take the properties under the condemnation process.
This authorization was effectuated under Ordinance 15-23 which stated in part:
The Township has attempted, for numerous months, to negotiate an... agreement from the property owner... to abate this safety condition.
The Township Council finds that the acquisition will promote and protect the health, safety, and welfare of residents of the Township, and further find that any purchase or taking by eminent domain... are all in the furtherance of a public use and purpose.
Municipalities are permitted, pursuant to State Statute, to take lands by way of condemnation, if they can assert that the taking of the land is for a "public purpose."
Mr. Dasti wrote in his court filings that the taking is for a public purpose as the Township needs the land for "open space," as stated by the Council in their adoption of Ordinance 15-23.
One of the lots is 0.34 acres in area. The current owner purchased it in 2015 for $9,000 from Keith and Arlene Rossmeissl. The Township has now offered him $82,000 for the vacant property.
The other lot is 0.31 acres in area. The current owner purchased it in 2022 for $19,975 from Judith Folkes, Executor of the Estate of Adele Kelsey. The Township has now offered him $75,000 for the vacant property.
The Township offered these prices after receiving an appraisal of these values.
"The Township has determined that it needs to acquire the entire property to affect a land exchange for the preservation of open space. The Township is authorized to proceed under the Eminent Domain Act to acquire property as it shall deem necessary," wrote Mr. Dasti in separate Complaints filed for each of the parcels.
As previously reported here on FAA News, the property owner continued the fight in court, retaining Roseland Attorney Richard P. DeAngelis Esq. to oppose the condemnation taking.
Mr. DeAngelis wrote to the Court:
While a municipality is authorized to take private property, such taking must be for a valid public use. The law demands more than just a bald assertion that property is needed. There must be an unambiguous public record in support of the purported need for an proposed use of the property. The right of a property owner to contest a taking is grounded in the State and federal constitutions. Recognizing the awesome and intrusive power of condemnation to deprive property rights, our courts demand strict adherence to the Eminent Domain Act and the enabling legislation, in this case, the Local Land and Buildings Law.
Here, the record is devoid of any direct evidence of a valid public use of my client's properties. The ordinance authorizing the acquisition suggests in the preamble that it is for open space, to promote and protect the health, safety and welfare of residents of the Township. However, there are no specific findings related to such purported use. Additionally, there is no reference to any studies or reports regarding the need for open space.
In fact, it is clear the property will not be used for open space as the Township seeks to take my client's properties to exchange it - along with other Township owned lots - to a private developer, Bellevue Estates, for land owned by Bellevue. By way of this exchange, the Township seeks to stop the development of religious schools in areas of the Township where such use is permitted "as of right" under the Township's Land Use Development Regulations.
As to my client's properties, it is presumed that the religious schools would be built there although such use is not permitted under the Township's land use regulations. Although, Bellevue is not constrained by its agreement for such use so it appears it may use the property as it sees fit, subject to local zoning. Moreover, the proposed exchange has been changed in a pending lawsuit. Finally, there is nothing in the public record regarding the Township's proposed use of Bellevue's lands.
My client has an absolute right to challenge the Township's power to take its property by eminent domains. Such a challenge demands a searching inquiry by this Court to determine whether the attempted taking is pursuant to all statutory and constitutional requirements.
In the 1995 case of Borough of Essex Fells v. Kessler Institute for Rehabilitation, the Borough sought to condemn land for the purpose of building a public park. The court blocked the condemnation on the basis that the Borough's Master Plan and public meetings revealed no need for additional parkland; instead, public statements made clear that the condemnation was intended to stymie the construction of a politically unpopular rehabilitation center.
The Township has failed to articulate a valid public use for the subject property - The articulation of a present public use to justify a condemnation is the essential first step in determining whether a condemnor is exceeding its statutory authorization or operating in bad faith. A prospective condemnor must demonstrate why it is taking property at that time.
Here the Township has stated simply that it was in the public interest without any public record to support that assertion. To the extent it is for the Exchange with Bellevue, the Court must examine whether that is a valid public purpose or a pretext to achieve some other impermissible purpose to stop the development of a politically unpopular religious based school in the middle of the Township. Also, the agreement with Bellevue does not constrain his use of its newly acquired land, including my clients property, so it may be used for whatever purpose subject to appropriate land use approvals.
If the proposed use is in fact for the relocation of the schools, that would require that property to be rezoned which would constitute impermissible spot zoning, which is when a municipality seeks to relieve a particular property of the burden imposed by its zoning classification so as to benefit the lot owner or permit an incompatible use.
But here again, there is no record of the proposed "public use" of my client's property after the taking. Even if the Court were to look at the use of Bellevue's lands to be acquired by the Township under the exchange, there is no stated public use for those lands.
And, there is the issue of whether the proposed exchange is even legal as that question remains pending under the neighbor's lawsuit.
Right to evidentiary hearing - Finally, my client should be afforded an evidentiary hearing regarding his challenges to the proposed condemnation.
Therefore, the Court should decline to grant the relief requested by the Township and dismiss their condemnation filing. At the very least, the Court should hold off on granting of the condemnation and schedule an evidentiary hearing in which the Township may present additional proofs in support of its filing, subject to cross-examination by my client and my clients rights to present further proofs.
Facing this Opposition, as previously reported here https://www.faanews.com/2023/09/havoc-in-jackson-council-to-redo-land.html on FAA News, the Township Council decided to create a record indicating why they have a right to take the land by simply redoing the Ordinance which authorized the taking of these lands.
Ordinance 26-23 states in part:
The Township Council finds that the acquisition will promote and protect the health, safety, and welfare of residents of the Township, and further find that any purchase or taking by eminent domain... are all in the furtherance of a public use and purpose. This Ordinance will permit the Township to exchange the subject properties, along with surrounding properties, to protect and maintain open space within the Township.
The Township has entered into a contract for the exchange of land. Such contract included the exchange of the subject parcels. The purpose of the land exchange is to provide open space for the residents of Jackson Township. The land exchange, with the inclusion of these two subject properties, will permit the Township to preserve open space in a desirable location of the Township. The location of the open space which will be made possible by adoption of this Ordinance and condemnation of the subject parcels, will create open space to be utilized by residents.
The Township has determined that this condemnation best serves the Township and promotes public use of open space within the municipality.
(Of note, this new Ordinance removes the previous wording, "the Township has attempted, for numerous months, to negotiate an... agreement from the property owner... to abate this safety condition." Apparently, the Council has come to terms with the fact that there is no "safety condition" which needs to be "abated!")
This new wording helped.
At oral arguments held on Friday, Ocean County Superior Court Judge Francis Hodgson dismissed the opposition, and permitted the Township to proceed with the Eminent Domain taking process, saying that "it is well established that a reviewing court will not upset a municipality's decision to use its eminent domain in the absence of an affirmative showing of fraud, bad faith or manifest abuse," (City of Trenton v. Lenzer) - but the party claiming has the burden of showing that claim - and that court's will not contemplate deeply into Township's motive for the taking of land.
Judge Hodgson also noted that Mr. Eichorn prefers to acquire these particular parcels.
As previously reported here on FAA News, last month, Judge Valter Must dismissed the first legal challenge to the land swap.
To join a FAA News WhatsApp Group, click here.
To join the FAA News WhatsApp Status, click here.
No comments:
Post a Comment