Towns double-team property owner, threaten eminent domain seizure

Can one Bergen County municipality, Cliffside Park, use the power of eminent domain to condemn a property for a public works garage (DPW) in Fairview, an adjacent town? This unique issue is before Assignment Judge Peter Doyne, and his opinion on whether Cliffside Park  has standing to move forward to trial is slated for March 16. Borough of Cliffside Park v. Pedigree Holding Group (Ber-8236). 

Cliffside Park lost its own municipal garage site when the municipality chose to redevelop the site (it was in an “area in need of redevelopment”) as part of a large redevelopment project.  Fairview property owner Bridget Tapkas leased her property to Cliffside Park, but Cliffside Park wants to own it outright and has threatened to condemn if they cannot acquire it through negotiation. Cliffside Park offered $1.3 million for the property. Tapkas won’t sell because she wants to save it for future expansion. Her family’s truck dealership is located on an adjoining parcel.

Fairview initially backed Tapkas in her dispute with Cliffside Park. "They are using, or misusing, the power of eminent domain outside the borders of Cliffside Park in the furtherance of the redevelopment plan," Fairview's Special Counsel Carmine Alampi told the Bergen Record in late January. Two weeks later, Alampi made a 180 degree turn and spoke out about teaming up with Cliffside Park to create a joint DPW garage facility on the Tapkas property. According to Alampi, Fairview would "reconsider our opposition to the condemnation." This latest twist presents a thornier problem for Judge Doyne. The case is already a nest of municipal intrigue.  

Clearly, New Jersey laws offer no authority for Cliffside Park to condemn private property in Fairview. Cliffside Park is citing N.J.S.A. 40A:12-4 (a) as its authority to condemn in the neighboring municipality. The Local Land and Buildings Law states that any county or municipality may acquire:

(a) Any real property, capital improvement, personal property or any interest or estate whatsoever therein, including easements, water, water power, or water rights, either within or without the county or municipality, except that no such property belonging to the State or any of its agencies, a county or any municipality shall be acquired without its express consent, ...

The Tapkas property is not owned by a municipality (Fairview); therefore, this section of the statute would not apply to Cliffside Park's attempt to acquire Tapkas' property, which is privately owned and located in the adjoining community of Fairview. This section of the statute only applies to municipally-owned property and, therefore, is not applicable to this situation.

However, a joint garage is another matter. In all likelihood, this would be upheld as a public purpose, assuming the site selection was not arbitrary and capricious. And Fairview could condemn property within its own borders for a municipal garage. Cliffside Park's borough attorney, Christos Diktas cites Governor Corzine’s desire to see “regionalization,” a sharing of costs and municipal services, as a legal rationale to move forward. According to the reports in the New Jersey Law Journal, the planned joint DPW garage would be built with a county grant. Governor Corzine's plan to cut municipal costs is not backed up by any statutory authority to do what is proposed here by Cliffside Park.

Judge Doyne has adjourned the matter twice in order to allow the municipal attorneys to work out an agreement prior to March 16. The property owner offered Cliffside Park a long term lease with extensions. This seems to be a reasonable way to resolve this issue without resorting to eminent domain to seize the property.