Update on Potential Condemnation of New Jersey Church to Build a Park and Pickleball Courts
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 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 tow
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