Solberg Airport condemnation reversed and remanded

In an important eminent domain opinion, the Appellate Division of the Superior Court reversed Somerset County Assignment Judge Yolanda Ciccone's decision to permit Readington to condemn the Solberg Airport property, and remanded the matter to the trial court for a hearing on the public purpose. Read the opinion in Township of Reading v. Solberg Airport, Docket No. A-3083-07T3 A-1537-08T3, written by Judge Phillip Carchman, P.J.A.D., for a unanimous panel.

The property in question consists of 726 acres, located in Readington Township, Hunterdon County, and enjoys a farmland assessment. A portion of the property, approximately 100 acres, is devoted to the Solberg Airport, a local airport serving businesses and recreational clients. The airport is also famous for the annual hot air balloon festival held every summer. In 2006, the Township of Readington authorized acquisition for open space preservation, recreation and farmland preservation. The ordinance authorized fee acquisition of all the land outside the 100 acres devoted to airport use, as well as the development rights to the 100 acres. The trial court was presented with cross-motions for summary judgment. The trial judge, relying principally on the New Jersey Supeme Court decision in Mt. Laurel Twp. v. Mi Pro Homes , (see our blog post of December 8, 2006), ruled that the acquisition was valid as a means of preserving open space.

The Appellate Division reversed, saying that the evidence presented by Solberg suggested strongly that the Township’s purpose in condemning the land was to secure control over the airport’s ability to grow and expand. The court found that this would be contrary to state purposes and beyond the power delegated to the township by the legislature. On remand, the trial court will conduct a hearing regarding Solberg’s allegation that the taking thwarts a valid pre-existing public purpose: i.e., the airport use. In the court's opinion, the taking of development rights for the airport parcel per se was not a taking to preserve community character,or the airport use, and might lead to the ultimate demise of the airport, which was described as being in poor condition and in need of repair. Municipal control over expansion and the improvement of the airport would be problematic for Solberg.

“The fact that the condemnation of development rights to the airport will not achieve its stated purposes indicates that the true purpose of the condemnation was to secure a greater measure of land use authority over the airport than the Township currently enjoys. Further, objective evidence suggests that the condemnation was initiated to secure Township control over airport operations. These are improper purposes in that they subvert the commissioner’s ultimate authority over aeronautical facilities.” (Slip opinion at p. 44)

The court concluded the township abused its power of eminent domain “to avoid the limitations on municipal zoning power imposed by State airport statutes and regulations,” and “is not within the police powers delegated to the municipalities by the Legislature. (Slip opinion at pp. 44 and 48.)