This morning, the New Jersey Supreme Court has issued its much-anticipated decision in the dune replenishment case, Borough of Harvey Cedars v. Karan, which was argued this May.

A copy of the decision is available here.

This opinion is hot off the press and we are reading it now, but the Court has reversed the decisions below, which barred introduction of evidence about the potential storm protection benefits that construction of a sand dune would have upon oceanfront property as “special benefits”.  The case has been remanded for a new trial.

Under this new decision, a trial court would now allow certain evidence of benefits provided.  As the Court held, juries determining just compensation should use a “straightforward fair market value approach”, considering any “non-speculative, quantifiable benefits” capable of “reasonable calculation” at the time of the taking.”

We’ll need to digest this one and will report further, but our preliminary impression is that the Court, while well-intentioned, may have opened the door to many more motions in limine and made the management of a just compensation trial more onerous.  Practitioners in the field have, for many years, contended that the “benefits” provided by a particular project are ordinarily speculative and not capable of reasonable calculation.  Without quantifiable market support, the holding in Karan would not appear to endorse admission of such evidence, but we anticipate that government agencies in New Jersey and elsewhere may now try to use this decision to bolster arguments in favor of otherwise inadmissible evidence.

Stay tuned.

On June 25, 2013, the a New Jersey appellate court reversed a trial court decision in State v. Shalom Money Street and remanded for trial.  The primary issue on appeal was whether the Superior Court had the authority to reinstate a condemnation commissioners’ award where both parties appealed the award for a jury trial de novo.  The answer on appeal was a clear “no”.

The Appellate Court correctly noted that the filing of an appeal for a trial de novo “renders the commissioners’ award nugatory.”  In reversing, the Appellate Court distinguished the two cases relied upon by the trial court because they both involved a situation where only one party appealed the award and then withdrew the appeal.  In that situation, the Commissioners’ Award becomes a final judgment because there is no longer any challenge to the award.

Finally, the Appellate Court found an abuse of discretion in denying an adjournment request where “the trial court’s decision to bar both expert reports stripped both parties of their ability to present a case as to the just compensation to be awarded.” This portion of the decision underscores the importance of the experts’ reports in eminent domain trials, as it is very common for the valuation expert to be the only witness presented by a party, and the preclusion of the expert’s testimony may be tantamount to a summary judgment in many cases.

Yesterday, the United States Supreme Court granted certiorari in Mt Holly Gardens v. Mt Holly Gardens Citizens. 

The case background is set forth in our prior blogs, but, the property owners (through counsel South Jersey Legal Services) argue that the redevelopment of the Mount Holly Gardens violates the Constitution because the government  relocation of residents after demolition of their garden apartments has a ‘disparate impact’ on minorities in violation of the Fair Housing Act and the Constitution.

We’ll keep you up to date on briefing and calendaring.

The U.S. House judiciary subcommittee on Constitution and Civil Justice recently passed a bill (H.R. 1944) that is designed to protect private property from eminent domain takings by creating a federal bar to transfers from government to private entities for economic redevelopment. The press release is available here.

The bill is entitled the Private Property Rights Protection Act of 2013 and may be read in full here.  The primary provision of the Act reads:  “No State or political subdivision of a State shall exercise its power of eminent domain, or allow the exercise of such power by any person or entity to which such power has been delegated, over property to be used for economic development or over property that is used for economic development within 7 years after that exercise, if that State or political subdivision receives Federal economic development funds during any fiscal year in which the property is so used or intended to be used.”

The proposed legislation also creates a private right of action for alleged violations, bars sovereign immunity as a defense, permits award of attorneys’ fees and costs, and shifts the burden to the government to show that the taking was not for economic development by clear and convincing evidence.

The Judiciary Committee chair and the main sponsor of the bill lauded its merits:

Chairman Goodlatte: “Private ownership of property is vital to our freedom and prosperity, and is one of the most fundamental principles embedded in the U.S. Constitution; however, the 2005 Supreme Court decision issued in the Kelo vs. City of New London case jeopardizes the protection of private property from government seizure guaranteed by the Constitution. The Private Property Rights Protection Act will help to limit the negative impact of this damaging Supreme Court decision.

Congressman Sensenbrenner: “American citizens have a fundamental right to use their property for whatever lawful purpose they choose. Congress should protect private property rights and reform the use and abuse of eminent domain. As a result of Kelo v. City of New London, farmers in Wisconsin are particularly vulnerable because farmland is less valuable than residential or commercial property. This bill would restore the rights the Supreme Court took away and provide Americans with the means to protect their private property from inappropriate claims of eminent domain.”

As we all know from our Schoolhouse Rock days, this “Bill” has a long way to go before becoming a law – but, we’ll keep you posted.

As reported by, the Missouri Supreme Court recently rejected the Southeast Missouri Port Authority’s attempt to use eminent domain to take private property for use in connection with interstate transmission of North Dakota crude oil. (A copy of the opinion is here).  The government intended to take undeveloped Mississippi River water-front property from Velma Jackson and Alicia Seabaugh, and then lease it to a private company who intended to construct a tank farm on the property.

Missouri, along with many other States, revised its eminent domain laws after the infamous City of New London v. Suzette Kelo case (see one of our blogs on that story here) to limit the use of eminent domain for “economic development.”  The Missouri Supreme Court found that the proposed taking was prohibited by the new post-Kelo legislation barring takings for “solely economic development purposes.”

Certainly a win for property rights advocates!


Yesterday, the New Jersey State Assembly unanimously approved legislation that codifies important redevelopment case-law, and provides municipalities with an option to undertake local redevelopment projects without using eminent domain.   The bill, A-3615, sponsored by Assemblymen Coutinho, Bucco and Munoz, has a Senate companion, S-2447, and shares some of the provisions which had been included in earlier legislative efforts that failed to pass two years ago.

A-3615 codifies Gallenthin Realty Development Inc. v. Paulsboro, 191 N.J. 344 (2007), in which the New Jersey Supreme Court scrutinized the then-common use of municipalities in New Jersey of a standard in the Local Redevelopment and Housing Law, N.J.SA. 40A:12A-5(e) — a “stagnant or not fully productive condition”  to justify that an area was blighted, or “in need of redevelopment”.   The legislation also codifies Harrison Redevelopment Agency v. DeRose, 398 N.J. Super. 361 (App. Div. 2008), in which an appeals court held adequate written notice of condemnation for redevelopment needs to be provided during the redevelopment planning process.

The other significant provision in this legislation  is that local governments will be given an option as to whether they will be empowered to use eminent domain to acquire properties in redevelopment areas.  If signed into law, this bill could help to spur redevelopment in certain areas without having to threaten the property rights of the existing owners.

The New Jersey Law Journal reported on the bill today in this article.  We also covered some earlier committee activity on this bill in this NJ Condemnation Law blog post.

Stay tuned for more on this legislative development.

McKirdy & Riskin’s Rich DeAngelis, Ed McKirdy and Tony DellaPelle served as counsel to the property owners in the DeRose case referenced above.   In addition, DellaPelle serves on the Redevelopment Committee of the New Jersey Builders’ Association, which was a proponent of the current legislation.

Last week, the New Jersey Supreme Court denied a petition for certification filed by the Diocese of Camden in behalf of St Mary’s Cemetery in Bellmawr.  As reported by the, in 2010, the New Jersey Department of Transportation acquired by exercise of eminent domain a six acre parcel owned by the church for its Route 295 Direct Connection Project.  The part taken did not include any grave sites, but the Diocese claimed that several of the interred may need to be relocated because the roadway project “might disturb the tranquility” of some sites.   The church has operated the cemetery site for 50 years.

The State had offered $1.9 million for the acquisition, but the church argued that the land was worth more than ten times that amount when taking into consideration the relocation costs (which apparently were not included in the offer amount). See Courier Post Online story.  Therefore the church challenged the NJDOT’s right to take, which was initially affirmed by the Appellate Division in October of 2012.



Absent making application for certiorari to the United States Supreme Court, the case will proceed to a valuation proceeding where the property owner will have an opportunity to present its theories to a panel of Condemnation Commissioners and then to a Camden County Jury.  The second part of the process is designed to protect the property owners constitutional right to just compensation.

We’ll keep you posted.



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