CourierPostonline.com reports that the New Jersey Supreme Court has declined to hear an appeal of the local Diocese, regarding a taking by eminent domain of a part of its Bellmawr cemetery for highway improvements. What appears to have been in issue was the right to take, not valuation — at least not yet. See Jim Walsh, High Court Refuses Bellmawr Cemetery Hearing, Courier Post, May 2, 2023.
The New Jersey State DOT seeks to take a part of the cemetery, and as of 2007, has offered $1.9 million. The church seeks $19.4 million if the taking is going to proceed, as it now is. So this controversy bids fair to set up at least the potential for one hell of a lowball. We are unable to gain a realistic insight into this controversy and of the valuation factors that divide the parties because the Courier Post article is a bit terse and confusing: for one thing, it says that DOT does not intend to move any graves, but it also says that part of the compensation sought by the Diocese is for grave moving. Possibly, this grave-moving may be necessitated by the taking of a still-unused part of the cemetery that is not actually occupied by graves, and that may impact on the unused part, but that is not clear. Either way, it appears that the State and the diocese see determination of severance damages very differently. So keep your eyes on this one — if it goes to trial, it should be fun to watch.
The taking of cemeteries can be contentious and controversial because of the emotional factors involved. In the past few years, there was a major controversy in Illinois over the taking of a cemetery for the expansion of the Chicago airport. The owners challenged the taking on necessity grounds, but lost. The Illinois Appellate Court disclaimed any ability to pass judgement on the technical matters underlying the decision on how and where to lay out the new airport. Chicago v. St. John’s United Church of Christ, 935 N.E.2d 1158 (Ill.App. 2010). But with all due respect to their Illinois Lordships, that was piffle: courts pass judgement on such technical matters all the time in connection with challenges to projects whose construction is opposed on environmental grounds. And of course, passing judgment on the soundness and care with which all sorts of techical decisions are made, is mother’s milk in tort cases where someone has been injured and claims that it happened because some machine, device, structure, construction etc. was negligently designed, constructed and/or operated. Courts seem to have no problems with those technical matters either.
The only case of that kind known to us, where the cemetery owner prevailed on the right to take, was the old California case of Eden Memorial Park v. Superior Court, decided in the 1960s, but that was a short-lived victory. After losing in state court on statutory grounds (under a statute forbidding the taking of cemeteries for highways), the State DOT went whining to the feds who obliged and condemned the subject parcel in federal court under federal law, and then conveyed it to DOT. The owners then challenged the state’s ability to take title, being as that would indirectly violate that statute and result in the acquisition by the State of cemetery land for a use forbidden by statute, but the California Supreme Court disagreed and allowed the transfer of that land by deed from the feds to the State.
We wrote about the problem of cemetery takings before, and if you want to see it discussed in slightly more detail, click on www.gideonstrumpet.info/?p=393.
Follow up. For additional information on this case go to the New Jersey Einent Domain Blog http://njcondemnationlaw.com/