New Jersey family farm threatened by eminent domain

Robert Smith’s family has owned the 100-acre Willow Pond Farm in Washington Township, NJ since 1790. Today, more than 200 years since the family began working the farm, its future as a working farm and preserved farmland is threatened by the Washington Township Municipal Utilities Authority’s (MUA) plan to condemn 0.86 acres of the property for the purpose of drilling a public well to provide water for the municipal drinking supply. The taking of private property by eminent domain for municipal utilities is rarely contested as a valid public purpose; however, in this case the MUA may have a few hurdles to overcome when Mr. Smith and his attorney, Anthony Della Pelle, argue against the condemnation in Superior Court on October 1st. Disclosure: Anthony F. Della Pelle is an attorney with McKirdy & Riskin an eminent domain and property rights law firm in Morristown, NJ. Mr. Della Pelle’s partner, Edward D. McKirdy, is the New Jersey member of the Owners’ Counsel of America.

Although MUA has the power of eminent domain and may seize private property for the public purpose of providing utility services to the municipal community, the MUA appears to have overstepped New Jersey law and initiated condemnation proceedings without following certain procedures. Mr. Smith’s family farm is located in an Agricultural Development Area, designated by the State for agricultural development where agriculture is the preferred land use. State law requires that a local municipality or government agency wishing to use eminent domain to acquire land in an agricultural development area must file a notice of intent with both the local county agriculture board and the State Agriculture Development Committee. The notice of intent must contain the purpose for the proposed acquisition and must set forth alternatives that would not require taking property within the agricultural development area. The property also lies within New Jersey’s Highlands Preservation Area, which contains significant development controls to preserve ground water resources in the area. Both the county and state agricultural committees are concerned about the MUA’s plans to condemn the Smith property and drill a public drinking well, and the MUA did not obtain permission from the New Jersey Highlands Council to drill the well within the Highlands area.

In her August 19, 2010 article, Daily Record reporter Vanessa Vera Roman quoted State Agricultural Committee spokesperson, Hope Gruzlovic comments concerning the MUA’s actions. “In this case, the MUA made decisions, drilled test wells, filed for condemnation of a portion of the Smith farm, before there was a complete filing with the two organizations,” she [Hope Gruzlovic] said. “There’s procedural issues here and there’s also impact findings.”

Further, NJ law requires that any local agency wishing to create a drinking water source from groundwater, by means such as a well, must obtain approval from the New Jersey Department of Environmental Protection (NJDEP) prior to utilizing eminent domain to take property for a well. The MUA has not sought nor received NJDEP approval and, is, therefore, not in compliance with NJDEP regulations. Yet, the MUA continues to proceed with its plans to take Mr. Smith’s property for a public well.

Mr. Smith has entered into a preservation agreement with the Morris County Agriculture Development Board to preserve the farm as a working agricultural operation. This agreement as well as the operation of the farm are jeopardized by the MUA’s plans to seize a portion of the property for a municipal well. While the MUA only wishes to take 0.87 acres, less than 1% of the farm’s land area, a buffer requirement exists which precludes any farming activity from occurring within a large radius of the well, which would translate to approximately 20 acres or more in this case. A 20-acre or larger buffer on a working farm translates to: no fertilizer, no pesticides, no chemicals, and no use of natural or manufactured substances that can be considered toxic to humans when ingested as these substances can leach into the ground water damaging its potability. The local and state agriculture committees have concluded that these restrictions “would cause unreasonably adverse effects” upon the Smith’s farming operation. If the MUA proceeds with the taking of the Smith property for the well, the farmland preservation designation will not be finalized.

As a result of the buffer zone, Mr. Smith would not only lose the agricultural preservation designation but also the utility of close to, if not more than, 20% of his farm. Should the condemnation be upheld, this would be equivocal to a loss of property value as the MUA would essentially have “taken” +/-20 acres of the Smith property when those issues of damages were not considered by the MUA’s appraisers to date and were not part of the pre-litigation negotiations. This will most certainly be an issue Mr. Smith’s attorneys will argue on October 1st.

The Morris County Agriculture Development Board has formally recommended that the MUA abandon the taking. The State Agricultural Development Committee has issued a similar preliminary recommendation requesting that the condemnation be abandoned and is expected to issue a final decision before the end of September. However, neither the County nor State agricultural agencies have the power to stop the MUA from take the property. That power rests specifically with the courts. We will be following this case closely and report back once the court has issued its ruling regarding MUA’s right to take the Smith Property.

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