The Real Problem With Extraterritorial Condemnation

         The eminent domain blogs have been kicking a problem around lately. What problem? The problem arising from the New Jersey case in which the Cliffside Park municipality seeks to condemn a parcel located outside its territorial limits in the adjoining town of Fairview. The question that has been occupying our colleagues is: can Cliffside Park do it? Our take: on the basis of conventional wisdom, the answer depends on local legislation. 

         The power of eminent domain resides in the state legislature which may delegate it to such entities and on such terms as it sees fit. So the question is not whether the municipality where the subject land is located can grant the power to take to another municipality.  Subdelegation of the power of eminent domain is generally a no-no. The decision of who may condemn belongs to the legislature. So the real question is whether the legislature has authorized extraterritorial condemnation?

          We don’t know what the law is in New Jersey, so we are following that litigation with interest. But out here in California, extraterritorial condemnation is generally forbidden by statute, Cal. Code Civ. Proc. Sec. 1240.050, subject to statutory exceptions to that rule.  Cal. Code Civ. Proc. Sec. 1240.125 grants limited extraterritorial eminent domain power to municipalities otherwise possesing the power of eminent domasin, where the extraterritorial taking is for water, gas, or electric supply purposes or for airports, drainage or sewer purposes.

          In fact, it is common that cities locate their airports so that the noise etc. of jet aircraft takeoffs impacts on land outside the municipal limits, so the impacted people residing in the path of those takeoffs cannot vote the responsible municipal types out of office, and have to rely on the tender mercies of courts which sometimes do and sometimes don’t provide relief for nuisance or for inverse takings of avigation easements. For a discussion of the problems generated by extraterritorial airports, see Michael M. Berger, You Know I Can’t Hear You When the Planes Are Flying, 4 Urban Lawyer 1, 12-15 (1972).

         However, though almost never raised in eminent domain litigation, there is a dctrinal problem here that the courts have not addressed.  When a condemnee challenges a taking, the usual judicial response is that the municipal decision to take is “well nigh conclusive,” and the aggrieved landowners’ remedy is via the ballot box. But in the case of extraterritorial condemnation, the affected condemnees cannot avail themselves of even that theoretical “corrective” because not being inhabitants of the municipality doing the condemning, they can’t vote there and cannot do anything about the taker-municipality abusing its power of eminent domain. How now, brown cow?

          It would be interesting to see what happens if some enterprising condemnee were to raise that point. Any bets?

Follow up.  For a discussion of pertinent New Jersey law, see Bill Ward’s blog post dated 3/2/09.