The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
New Jersey Town Seeks to Condemn Church to Build a Park and Pickleball Courts
The move may be a pretext for blocking the church's plan to build a homeless shelter. If the town proceeds, it will face near-certain litigation under the federal and state constitutions.
The New York Times reports that the town of Toms River, New Jersey is planning to use eminent domain to condemn a church, raze it, and build a park and pickleball courts on the spot. The planned condemnation may be motivated by a desire to prevent the church from opening a small homeless shelter on part of its land:
Leaders of Christ Episcopal Church in Toms River, N.J., were preparing for a Cinco de Mayo festival late one night when the news began to spread: The mayor planned to use eminent domain to seize their church and its 11 acres of land.
Under his plan, the church, which was founded in 1865, would be replaced by 10 pickleball courts, a soccer field and a playground with a nautical theme, according to an engineer's drawing. The first vote by the Township Council, Toms River's governing board, was the next afternoon.
The proposal represented a curious new twist in an ongoing battle in the large Jersey Shore community. An affordable housing nonprofit that rents space from the church had asked to create a small homeless shelter on the very land the mayor now wanted to turn into a park. The request was unpopular with neighbors, and the organization was awaiting approval from a zoning board.
The mayor, Daniel T. Rodrick, called the timing a "coincidence." But opponents have condemned the park plan as a thinly disguised way to block the shelter.
The effort to buy or take the land is all but certain to face legal challenges. But it has unleashed an emotional debate over property rights, religious liberty and the limits of a community's responsibility to care for poor people….
"I am outraged," said Rabbi William Gershon of Congregation B'nai Israel, a conservative synagogue that has been in Toms River for 75 years. "If you can do it to them, you can do it to any of us."
Rabbi Gershon said members of the town's interfaith council were united in their opposition to the effort, which he considers an attempt to use "political levers to cudgel a community, almost vindictively."
Rabbi Gershon is right. This sort of use of eminent domain is abusive and unjust. As the NY Times article notes, there is substantial public opposition to the taking. The Mayor of Toms River (who supports the taking) has postponed the final town council vote on it until July 30.
If the town decides to proceed with the condemnation, it will likely be challenged in court under the state and federal constitutions, as not being for a "public use." Unfortunately, US Supreme Court precedents, such as the notorious ruling in Kelo v. City of New London (2005), hold that almost anything that might benefit the public in some way qualifies as a "public use," even if the land is going to be transferred to a private party (see my critique of this position in my book The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain).
However, Kelo does allow courts to strike down "pretextual" condemnations where the official rationale for the taking is really a pretext for a scheme to benefit a private party. What qualifies as a pretextual taking is anything but clear! Lower courts have developed at least five different approaches for addressing such issues. For details, see my recent amicus brief urging the Court to revisit Kelo. But if the plan to condemn the church really is motivated by neighbors' complaints abut the potential homeless shelter, there is at least a plausible argument that the taking here is pretextual. That would be even more true if the plan provides for transferring some or all of the condemned property to a private owner.
New Jersey is within the jurisdiction of the US Court of Appeals for the Third Circuit. In Carole Media v. N.J. Transit Corp., 550 F.3d 302 (3d Cir. 2008), that court ruled that a key criterion for identifying a pretextual taking is whether there is a private beneficiary (usually the new owner) whose identity is known in advance.
I won't go into detail here. But New Jersey courts applying their state constitutional public use clause are much less deferential than federal courts applying Kelo and other Fifth Amendment public use precedents. Just ask Donald Trump, whose effort to use eminent domain condemn a widow's home to build a parking lot for one of his casinoes got struck down by a New Jersey court in CRDA v. Banin (1998) [I had a very small role in working on that case as a law student clerk at the Institute for Justice, which represented the property owners].
Whether the Toms River Church condemnation can be successfully challenged in court is likely to depend on facts such as how detailed and extensive the development plan is, whether some or all of the property will be transferred to a new private owner (public use challenges are much more likely to succeed if the answer is "yes"), and the extent of evidence of pretextual motivation.
I intend to reach out those involved to learn the answers to these questions, and - if possible - offer assistance to the Church in fighting this condemnation. If readers have relevant contacts, please let me know.
