Eminent Domain Dispute Between New Jersey Towns; Property Owner Caught in the Middle

Eminent domain dispute divides neighboring towns
By DAVID PORTER | Associated Press Writer January 19, 2009

FAIRVIEW, N.J. – Bridget Tapkas is by no means the only New Jersey property owner to fight government efforts to acquire land under the state’s eminent domain laws.

Her story has a twist, however: It’s a neighboring town that wants her property.

The dispute has renewed debate over the contentious issue of eminent domain – which allows a government to take land needed for a public purpose or redevelopment after paying a fair price for it – and pitted the small towns of Fairview and Cliffside Park against each other.

Cliffside Park notified Tapkas last October that it would use eminent domain to obtain a 22,000-square-foot former lace factory building in Fairview that it has rented from Tapkas’ family since 2007 for storage and maintenance of its public works vehicles.

Fairview’s borough council had already given Cliffside Park authority to use eminent domain to acquire a separate property near the Tapkas property that the two towns plan to use for a joint public works facility. That project has been stalled due to flood control issues, according to Fairview Mayor Vincent Bellucci.

With the project in limbo, Cliffside Park offered to buy the former lace factory from Tapkas last year for $1.3 million to continue using it until the joint facility is completed.

Tapkas balked, partly because her family had paid $1.28 million for the property in 2007 and has made about $200,000 in improvements. The family owns Beyer Brothers, a truck sales and repair center, and bought the property initially with plans to expand its repair facility, she said.

“I find it offensive – what gives this municipality the right to become a land purveyor?” said Tapkas, 38, the third generation of her family to run the truck business.

Under New Jersey law, private property can be acquired for public uses but only in cases where the acquisitions “are necessary and suitable for the performance of the (municipalities’) functions.”

Tapkas’ attorney, Anthony Della Pelle, said Cliffside Park hasn’t met the “necessary and suitable” requirement because they already are leasing Tapkas’ property and have acquired the property to be used for the joint public works facility.

“There isn’t statutory authority that allows Cliffside Park to take this property in Fairview without Fairview’s consent,” Della Pelle said. “And Fairview is opposing it.”

There is a dispute over whether Fairview gave Cliffside Park permission to use eminent domain on Tapkas’ property, a necessary step under the law. Fairview says it never gave permission; Cliffside Park says it did.

Bellucci produced a letter sent to Cliffside Park officials last year that states that Fairview gave permission for Cliffside Park to acquire the property for the joint facility – but not any other property in Fairview.

Cliffside Park Mayor Gerald A. Calabrese and Christos Diktas, an attorney representing the borough, did not return calls seeking comment. In a statement through a spokesman, the borough said its actions are “consistent with state law and in the public’s best interest.”

Calabrese argued in legal filings that the borough needs to acquire the property because the joint facility won’t be ready when its lease with Tapkas’ family expires. He also charged Fairview with dragging its feet and all but abandoning the project.

The two sides are scheduled to face off in state Superior Court in Hackensack on Friday.

The use of eminent domain across the country has received increased attention since Ohio’s Supreme Court ruled in 2006 that economic development wasn’t a sufficient reason under that state’s Constitution to justify taking homes for redevelopment.

New Jersey’s most publicized case occurred in Long Branch, where a group of homeowners has successfully fought the seaside town’s efforts to condemn their homes for a redevelopment project.

State Public Advocate Ronald Chen and Attorney General Anne Milgram both have called for reforms to restrict the use of New Jersey’s eminent domain laws, but a bill proposed in the state Senate has not come up for a vote.

Della Pelle cautioned against broadening the interpretation of existing laws.

“If one town is allowed to take property in another without special circumstances, every town would try to put its unpopular uses, such as garbage dumps or jails, in neighboring towns,” he said.

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Disclosure: The property owner in this action is represented by Anthony Della Pelle, a partner in the Morristown law firm, McKirdy & Riskin, PA. Edward McKirdy is the New Jersey member of OCA.

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