The Volokh Conspiracy
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Update on Potential Condemnation of New Jersey Church to Build a Park and Pickleball Courts
After a public outcry, the scheduled vote on the plan to use eminent domain has been postponed indefinitely. If the Town of Toms River does try to condemn the church, there is likely to be a major legal battle.
In May, I wrote about how the town of Toms River, New Jersey, planned to use eminent domain to condemn the Christ Episcopal Church and build and park and pickleball courts on the spot. The plan may have been motivated by a desire to prevent the church from building a homeless shelter on part of its property. In my earlier post, I outlined multiple potential objections to the planned condemnation under the state and federal constitutions, including 1) if the condemned property is transferred to a private party, that may mean it is not being devoted to a "public use," as the Fifth Amendment and the New Jersey Constitution both require (NJ state courts applying their state constitution enforce this requirement far more rigorously than federal courts do under the Fifth Amendment Takings Clause), and 2) there is likely to be a strong argument that this is a "pretextual taking," where the official rationale is just a pretext for a scheme to benefit a private party (here, local NIMBYs who want to block the homeless shelter).
After an initial outcry, the vote on the plan was postponed until July 30. More recently, Mayor Dan Rodrick postponed the vote indefinitely, likely because of growing public opposition. He now says the town will go through with the vote only if a poll of town residents he plans to conduct on the subject reveals majority support for it. At this time, I do not know when the poll will occur or what the wording will be. The wording of survey questions on land-use policy often has a big effect on results.
Dan Paulsen of the Episcopal News Service has a helpful article summarizing the situation and the potential legal issues involved (he quotes a number of takings and land-use experts, including myself):
A New Jersey church was thrust into the national spotlight in recent months when town officials targeted the property for seizure, by eminent domain if necessary, to create new public parkland. Episcopal leaders insisted Christ Episcopal Church in the town of Toms River was not for sale.
Legal experts and property rights lawyers interviewed for this story told Episcopal News Service that Christ Church likely would be on solid ground in fighting to maintain ownership of its 11-acre property, though existing case law leaves unanswered how courts might rule if the church asserts its rights both as a property owner and as a house of worship….
Rodrick first proposed voluntarily buying or forcibly seizing Christ Church's property in April, and the Toms River council voted later that month to move forward initially with his plan. Rodrick said he envisioned creating a multiuse park on the church's property because that part of town lacks recreational facilities….
The mayor's proposed eminent domain ordinance requires a second approval to take effect. A final vote had been scheduled for July 30, but Rodrick postponed it indefinitely after facing a vocal outcry from church leaders and the church's supporters, as well as a petition drive seeking to block the pending ordinance. The mayor's opponents launched a separate campaign attempting to recall him.
"The church and the diocese are prepared for a long court fight to protect our congregation and property from this egregious land grab," the Rev. Lisa Hoffman, Christ Church's rector, wrote in a May message to her congregation. New Jersey Bishop Sally French has said the diocese will do "all that we can" to help defend the church in any property dispute…
Legal experts say an eminent domain proceeding involving a church would not be unprecedented – houses of worship are not immune from governments legally taking some or all of their property, with fair compensation and for public use – though those experts also say they are following the Toms River dispute with keen interest, given the questions it may raise about the proper application of state and federal laws.
"I think what's interesting about it is it kind of stands at the confluences of two different kinds of religious land disputes," Eric Rassbach, vice president and senior counsel at the public interest nonprofit Becket Fund for Religious Liberty, said in an ENS interview.
The first is the general threat of eminent domain, a legal process by which a government can take privately owned property even if the property owner doesn't want to give it up. The U.S. Constitution's Fifth Amendment limits the use of eminent domain by requiring that governments provide "just compensation" when taking property for "public use." Congress and some states have passed laws giving property owners additional protections.
Secondly, Rassbach said, the timing of Toms River's eminent domain threat raises additional red flags, given that the mayor has opposed broader efforts to assist people experiencing homelessness and that some of his constituents had complained specifically about Christ Church's homeless shelter proposal.
The congregation, which has said its outreach ministries are rooted in the Christian call to help those in need, could argue that the town's actions are unfairly limiting how it lives out that call, Rassbach said. Unlike other property owners, houses of worship benefit from additional protections under the First Amendment and a federal law known as the Religious Land Use and Institutionalized Persons Act [RLUIPA]. In Toms River, the town would have the burden of proving it is using eminent domain consistently, fairly and in a way that doesn't place undue burden on the church's exercise of its faith.
As Eric Rassbach of the Becket Fund for Religious Liberty notes in the passage above, if the condemnation goes forward, the church may have a strong religious liberty claim under RLUIPA, in addition to takings claims.
Since I wrote my earlier post on this issue, I have been in contact with representatives of the Episcopal Church, offering them my assistance with this issue. The Institute for Justice and the Pacific Legal Foundation* - two of the nation's leading public interest law firms specializing in property rights issues - have also reached out, and the same is true of the Becket Fund (which is well-known for its work on religious liberties). Should the town go through with this abusive condemnation, it will likely face a lengthy and difficult legal battle - one that it might well lose. If you are a local government trying to carry out a dubious condemnation, IJ and PLF are probably the people you least want to see arrayed against you in court!
Hopefully, the local government will back off. Even aside from legal considerations, it is deeply unjust to use the power of the state to seize a church merely because it seeks to build a shelter to help the homeless. I don't think you have be an expert on property rights or religious liberties to see that.
But if the town does decide to go through with this travesty, property rights and religious liberty advocates will not stand idly by. Many of us will act to help the church resist in both courts of law, and the court of public opinion.
I will post additional updates on this issue when and if I have anything to report.
*NOTE: The Pacific Legal Foundation is also my wife's employer. But she does not work on property rights issues.
