“Justice and Fairness” in Action — This Time for Real

One of the more annoying things about the law of eminent domain is the courts’ preening about how in eminent domain cases they are into “justice and fairness,” indemnity, and all that other good stuff, when in fact if you press them on this point they ‘fess up that these ringing words are not for for real, and that — as the California Supreme Court put it — they are only expressions of judicial idealism that does not translate into reality, and that folks who believe those judicial bromides just plumb don’t understand the law of eminent domain.

So it was a pleasant surprise to read that New Jersey Supreme Court case (Klump v. Borough of Avalon, No. A-49-09, opinion filed June 22, 2010) holding that on the peculiar facts in issue, the borough could not invoke the defense of limitations in an inverse condemnation action, and argue that it inversely condemned the subject property way back in the 1960s, so the owners’ action was too late. What happened was that the Borough built a berm impeding the owners’ access, claiming that it had the right to do so, so this this was not a taking. So the owners sought other relief in the courts. It wasn’t until 2005 that the Borough came up with its ingenious defense of asserting that, contrary to what it had been saying, it did take the subject property and therefore the owners’ inverse condemnation action was too late. Nothing doing, said the New Jersey Supreme Court.

“Based on the Borough’s position up until 2005 that a taking did not occur, plaintiffs understandably sought recourse through demands for access to their property that led to the declaratory judgment action demanding access and the later-added claims for trespass and ejectment of the Borough from their land. After finally conceding, in 2005, that a taking occurred forty-three years earlier, the Borough now attempts to hide behind the six-year statute of limitations to claim plaintiffs have no right to an inverse condemnation action. In light of these circumstances and in the interest of ‘justice and fairness,’ plaintiffs must be afforded a remedy for the appropriation of their property for public use.”

Well said, your Honors.

It has always bothered us when government entities raise a statute of limitations defense, arguing that the lawsuit is too late, without admitting that they did take the subject property. But if, as they also argue, a taking did not occur, then the limitations period can’t begin running.

Anyway, it’s nice to see a court for once applying the “justice and fairness” idea instead of just talking a good game about it.