Eminent Domain Abuse: Nice airport … it’d be a real shame if anything happened to it.

You would expect this line in a cheesy Mob movie, not from government officials holding the power of eminent domain.  But in New Jersey, it seems the local government has been watching Goodfellas a few too many times.

The dispute involved whether a family’s 726 acre airport was going to be allowed to expand to take in overflow flights from Newark. The family wanted to expand, the local residents had been throwing fits about the airport since 1967.

From a great post by someone I don’t usually look at for condemnation case reports, Weaponsman, comes this great exchange:

Thor Solberg, Jr: “[Y]ou’re taking away my livelihood!”
Monaco: “No, we’re not.”
Mirota: “Not necessarily.”
Solberg: “You know that’s what–you want to take the land.”
Monaco: “We haven’t done that — yet.”
Solberg: “It’s our land.”
Savo: “Let me tell you what our options are. We could go down there tomorrow, right? And [take] just enough to put the airport out of business. I wouldn’t say anything.”

readingtonvsolberg04may15, page 13.

Even better, the Township–in what can only be one of the few preemptive uses of children as human shields by a government entity in the United States of America–decided to  locate a school directly across the street from the airport.  Id.  Go ahead and expand now, and kick the poor children out in the snow!!!  Ha ha, it is so funny, ho ho it is to laugh, if only there weren’t real lives and livelihoods on the line because of this arrogant group of bureaucrats.  And the Township located the school there in direct opposition to strenuous objections from the NJ Department of Transportation.  The township folks knew what they were doing.

When the Solbergs decided to finally sell this trouble to the State, the Township really went nuts.  It decided to condemn property that was subject to active negotiations between a private citizen and the State.   The bond measure to acquire the property at about 60% of the value passed by a comfortable margin of 9%, a solid win in modern electoral circles, but qualified as “narrow” by the court on appeal.  The stated purpose was not for the Township to run the airport—some other party would apparently manage it—but simply to keep the airport small in perpetuity.

In New Jersey, eminent domain can be exercised with broad discretion by municipalities, but “the 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 eminent domain.'” Borough of Essex Fells v. Kessler Institute for Rehabilitation, Inc., 289 N.J. Super. 329, 337 (Law Div.1995).  Although the ordinance to acquire the airport by eminent domain on its face might seem acceptable, the court took into consideration the long and contentious history between the Township and the airport, as well as the principle that a municipality only has limited control over airports under state law, to void the condemnation.

Really, the victory for the family and their airport is more properly viewed as a power struggle between the State that needs more air facilities and a local community that wants to stay small.  I wonder if the same result would obtain if the airport was not needed for Newark’s overflow, and was just some out-of-the-way facility.  Maybe after the goombah-type threats in the 1990s against the Solbergs, it would still get struck down.  The Superior Court opinion catalogued a helpful list of cases involving just such bad faith takings, and New Jersey has a well-developed body of case law specifically on that topic (perhaps the bullying mentality just comes with the accent):

[W]here a condemnation is commenced for an apparently valid public purpose, but the real purpose is otherwise, the condemnation may be set aside. Casino Reinv. Dev. Auth. v. Banin, 320 N.J. Super. 342 (Law Div. 1998); Essex Fells, supra, 289 N.J. Super. at 337; Wilmington Parking Auth. v. Land With Improvements, 521 A.2d 227 (De. 1986); see also, Earth Management, Inc. v. Heard County, 248 Ga. 442, 283 S.E.2d 455 (1981) (condemnation of land for a public park was a subterfuge to veil the real purpose of preventing construction of a hazardous waste disposal site); Carroll County v. City of Bremen, 256 Ga. 281, 347 S.E.2d 598 (1986) (condemnation for police and fire training facility voided when real purpose was to prevent the construction of a sewage treatment plant); Pheasant Ridge Assoc. v. Burlington Town, 399 Mass. 771, 1506 N.E.2d 1152 (1987) (land taken for park, recreation and moderate income housing seen as pretext to exclude low or moderate income housing). In 1997, the Supreme Court of New Jersey quoted from Wilmington Parking Auth., supra, 521 A.2d at 231: “In determining whether projects with substantial benefit to private parties are for a public purpose, this Court has held that the trial court must examine the ‘underlying purpose’ of the condemning authority in proposing a project as well as the purpose of the project itself.” City of Atlantic City, supra, 148 N.J. at 73.

Opinion at 21-22.  In any event, this is a substantial case for New Jersey, and hopefully a bellwether for other jurisdictions to take up a vigorous doctrine of looking at the motives behingd condemnation actions.  All too often, this kind of government power is abused to hurt folks who can’t afford over 30 years of threats and 10 years of litigation.