Authority to Condemn
Cliffside Park, N.J., filed a condemnation complaint in November to gain ownership of a private property in Fairview, N.J., it is renting for a Department of Public Works facility.
The complaint offering $1.3 million for the property says Cliffside Park needs the land and garage as an interim facility until Cliffside Park and Fairview build a planned joint DPW facility in another part of Fairview with a county grant -- a project in the works since 2003.
A provision of state eminent domain law, N.J.S.A. 40A:12-4(a) gives towns authority to condemn and obtain ownership of property in other municipalities, and Cliffside Park is claiming that right in its complaint, Borough of Cliffside Park v. Pedigree Holding Group, Ber-8236.
The property owner and Fairview concede that extra-territorial condemnation is permitted by law. But they are fighting Cliffside Park on grounds that the statute can be used for takings by a town outside its borders only in limited and special circumstances, and only with the permission of the town where the property is located.
Typical examples are when a town with a reservoir in another municipality needs to acquire land to protect the water or when a property immediately across a border is needed to preserve access, they say.
The issue has come up so rarely there don't seem to be precedents on point about the legality of what Cliffside Park is trying. Anthony Della Pelle of McKirdy & Riskin in Morristown, N.J., who represents the property owner in the case, says "one town may not generally use eminent domain to acquire real estate in another town.
Many State constitutions grant governmental entities the authority to condemn outside the geographical limits of the community. One is required to read the constitutional grant. The legislation must be looked at to determine whether the specific delegation to acquire by eminent domain exists in the statutory language.
