Posted on 12/07/2002 5:39:00 AM PST by sauropod
Piscataway gets OK to condemn farmland
December 3, 2002
By Patrick Jenkins, Star-Ledger Staff
pjenkins@starledger.com
732-634-3607
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The future of the Cornell Dairy Farm was decided yesterday when a state judge granted Piscataway the power to condemn property that has been at the center of a bitter, three-year legal battle between the Halper family and township officials.
Superior Court Assignment Judge Robert Longhi rejected arguments by Halper attorney John J. Reilly to dismiss the condemnation proceeding.
Longhi restated his ruling from June 2000 that Piscataway had a legitimate purpose in taking the 75-acre tract at South Washington Avenue and Metlars Lane, in the southeast section of the township.
Longhi said he would appoint three commissioners to determine the value of the farm, which has been in the Halper family for 80 years.
Although she said she expected the decision, family member Clara Halper was devastated.
"I felt it was decided before today, but it's still sad to see your home taken away," a tearful Halper said. "It's sad to see, in my lifetime, the erosion of our rights. Everything our relatives fought for have been taken away. They fought for freedom and they've been slapped in the face."
Halper said the family would appeal the ruling.
"Your home is supposed to be your castle, your safe haven," Halper said. "Now they've shown us we don't have any safe haven, we don't have any rights."
But Piscataway Mayor Brian Wahler said he thought the judge made the correct decision.
Wahler said the township would negotiate with the Halpers on the value of the farm.
"In fairness to the Halpers, the offer has to be reasonable. The last thing we want is that they are paid money that is not fair market value," he said.
The township initiated the condemnation proceedings in December 1999, with an offer of $4.3 million, based on appraisals at that time, Wahler said.
He said the property would be used for open space, most likely passive pursuits such as hiking trails. Active pursuits, such as basketball courts or soccer fields, are banned by the covenant covering the condemnation proceedings, Wahler said.
The condemnation was put on hold for nearly two years while the Halpers, with the township's support, applied for admission into the farmland preservation program.
The application died in August when the Halpers rejected an offer of slightly more than $3 million for the development rights for their farm, and the township restarted the condemnation.
Wahler said then and again yesterday that he did not understand why the Halpers rejected the offer since they could have kept the farm in perpetuity or, if they later decided to sell, could do so for market value to someone else who wanted to operate the farm.
The township began the condemnation proceedings after officials said they learned that the Halper family tried to sell the farm to a developer who was going to put up more than 100 homes. [Where is the PROOF of this hearsay?]
They said Piscataway could not handle the traffic nor afford the additional costs of schools and other services those additional homes would generate.
The Halpers have long denied they intended to sell the property for development, saying they want to continue to live there and operate it as a farm.
As the last operating farm in Piscataway, it features egg sales, horse and pony rides, a horseback riding academy, horse boarding and grazing and hay rides.
The Halpers also grow nursery stock, vegetables, fruits, flowers, shrubs, ornamentals and pumpkins and sell agricultural supplies.
Several Piscataway residents who support the Halpers were in court yesterday, including Dan and Nancy Swarbrick.
"We've been lifelong Democrats but we just voted Republican because of what the Piscataway Democrats are doing," said Nancy Swarbrick.
"People have a right to own property," she said. "They're stripping away the Constitution."
After Longhi issued his ruling, Dan Swarbrick yelled, "You soulless old man. You're stealing a family's home. This is not over."
Clara Halper said the only good thing she sees coming out of the whole proceeding is that a strong property rights movement is growing across the country and in New Jersey.
"We are joining to protect and preserve what our forefathers fought for -- the American Dream. This is not what the authors of the Constitution envisioned," she said.
If the right to own and develop real estate is inalienable, then every single zoning law in this country would be unconstitutional by definition. My guess is that you will suddenly get some "zoning law" religion the minute someone tries to build a chemical plant or 100,000-head hog farm eight inches from your property line.
I am not one of those who looks upon the Constitution as a "flexible" document, but I do realize that the reality of the modern world makes it very difficult to apply the "inalienable rights" in the U.S. Consitution to cases where people don't all live on 160 acres of raw land in the middle of nowhere. The moment your property can be developed in a manner that can impact other people, the whole notion of "inalienable real estate rights" gets thrown out the window.
I've seen this kind of case on numerous occasions. The family involved here is not interested in farming this land in perpetuity, or maybe even for the next five years. There is no legal basis for them to oppose this action (the law is that clear about it) -- what they are trying to do is drum up public support in an attempt to raise the sale price of their land. I can't say I blame them -- I'd do the same thing myself.
But that doesn't mean there is anything illegitimate about what the local municipality is doing here.
It's worth noting, though, that there is an interesting little item in Alberta law that makes things interesting up there. Land use law in that province can be abrogated almost at will in any case involving the development of land for the purpose of extracting minerals or other resources (oil and gas, for example). What this means is that someone wishing to open a coal mine or an oil well can ignore many land-use laws that would apply to someone wishing to build a shopping mall, an office building, or even a residential subdivision.
If you are a rancher in Alberta and someone wants to dig up your fields to run a gas main underneath your land, the only question is how quickly he wants you to move your cattle.
My point here is not that I think Piscataway's plan is a good one -- I'm simply pointing out that there is no legal basis for opposing it.
This was done to keep the area from being used for a fourth major airport in the New York City region.
I'll bet nobody here on FreeRepublic would have complained about that one.
And they all are, IMHO. Houston, TX does not have any unconstitutional zoning ordinances. I am a firm believer in reciprocal rights. My rights end at the tip of your nose and vice versa. What you build eight inches from our mutual property boundary would cause a dispute, no doubt, to be settled in a court of law, if necessary.
The courts are there to protect my individual rights within reason and that branch of local government should not be subject to the democratic process within our republican form of government. The tyranny of the majority is indeed a threating element in society.
This case is a classic example of such intimidation of an elected local judge. His decisions must be political and not judicial at all. He/she would be irrational to decide anything for an individual in an unpopular position with election day coming around in a few months.
You are obviously a believer in "settled law." Unfortunately, so much law is "settled" in bad precedents with no basis in constitutionality that this leads to a need for that dried up old document under glass in D.C. to become a so-called "living, breathing document," subject to endless subjectivity and rationalization of the type you've been treating everyone to.
Sorry for mis-interpreting what "Alberta" meant in your screen name.
I just wish you'd consider what it feels like to have the "community" in control of your plans for your property. Remember, people acquire property by setting aside little pieces of time from their productive lives in a savings institution until they can leverage the rest from the savings institution. They are not doing this to please the other members of the community, but for their own pursuit of happiness.
To enforce the will of the community in advance, or in arrears, on individuals is a commonistic limitation that was never envisioned by our founders and defeats mankind's inalienable rights all the way back to the Magne Carta. Without these property rights, we have no such thing as a Free Republic!!!
Is my argument too radical, or my opinion too flagrant?
It's OK -- You can just admit that you don't have any evidence or legal documentation to refute my so-called "rationalizations."
It's more entertaining to watch you create a straw man so you can rationalize kicking the stuffing out of it. You're so transparent.
And if a zoning ordinance is unconstitutional, then property taxes are unconstitutional as well. For that matter, I would contend that it is unconstititutional to even provide access to private property on a public street. If you need to get from your house to the local grocery store, you should have to cut a deal with your neighbors every time you make that trip.
I suggested in an earlier post that the municipality could deal with these landowners in a perfectly acceptable manner by allowing them to sell or develop their land in whatever manner they wish. Only the municipality should then refuse to grant the landowners any driveway access to public streets. Would that satisfy your ideals about private property rights?
What you build eight inches from our mutual property boundary would cause a dispute, no doubt, to be settled in a court of law, if necessary.
It would seem to me that this kind of scenario can theoretically render all private property worthless. I may be willing to pay $250,000 for a home in a certain neighborhood, but if there is no reasonable certainty on my part about whether or not an apartment building or a rehab center or a bodega will be built next door, then I'd only be willing to pay $50,000.
I see absolutely nothing wrong (in a Constitutional sense) with zoning laws that are passed as part of a normal democratic process. Anyone who buys a piece of property knows full well what the liens and encumbrances on his property are.
You are obviously a believer in "settled law." Unfortunately, so much law is "settled" in bad precedents with no basis in constitutionality that this leads to a need for that dried up old document under glass in D.C. to become a so-called "living, breathing document," subject to endless subjectivity and rationalization of the type you've been treating everyone to.
You're a believer in "settled law," too -- I'm sure you aren't willing to give up the "unconstitutional" public access to your land, would you? And you don't worry about the constitutionality of a local fire or police department when you call 911, do you?
I would gladly agree with everything you've said about the inalienable rights of these property owners, but under one condition. We have to first revert back to the time before there was any "public" access to their lands -- then we can start all over under Constitutionally legitimate conditions. That $3 million price tag on their land would be reduced to about $300 if they didn't have access to a public roadway.
Sorry for mis-interpreting what "Alberta" meant in your screen name.
LOL. You interpreted it correctly, but I'm not from Alberta. "Alberta's Child" is a song by Canadian country music legend Ian Tyson.
". . . nor shall any person be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
What you are saying, in effect, is that the Fifth Amendment to the U.S. Constitution is unconstitutional, for it clearly allows for the public taking of private property.
Section 8 is titled "Powers of Congress." These enumerated powers for the our "federal government" have nothing to do with the powerso of state and local governments.
With such a corresponding tax, then zoning laws are consitutional.
This same reasoning applies to regulations that also commit a property owner to an expenditure or limitation on the use of the property.
Anti-smoking ordances, for example, that require a restaurant owner to install air cleaning equipment.
If the public wants to use the restaurant's owners private property, smoke free, then the pubic has to pay for such equipment to accomplish that goal.
Your point here would be a good one, except that most zoning laws do not cause a reduction of the value of the property in question.
If I own a piece of land and I can either subdivide it for residential use and sell it off for $200,000 or seek an industrial development permit that would allow me to sell it off for $1 million, it would seem that any zoning law prohibiting an industrial land use "costs" me $800,000. However, it should be pointed out that my surrounding property owners would actually incur combined "costs" far in excess of $800,000 (as a result of reduced residential property values) if I went ahead with that industrial development. If I had to pay this "cost" in addition to all the other higher costs of an industrial land use (higher water treatment and sewer costs, for example), then I would never even consider such a scenario in the first place.
The zoning law works both ways -- it protects one property owner at the same time it inhibits another. The reason these laws are in place is simple -- It is just not possible for a third party (the municipal government) to consider every possible impact that each and every development proposal might have on adjacent property owners. Keep in mind, as well, that the word "adjacent" can mean an awful lot of property owners (including many that are outside the jurisdiction of the approving authority) when the scope of a potential development is large.
Anti-smoking ordinances, for example, that require a restaurant owner to install air cleaning equipment. If the public wants to use the restaurant's owners private property, smoke free, then the pubic has to pay for such equipment to accomplish that goal.
I'm not sure if anti-smoking ordinances fall under zoning laws or health codes. If you want to make the case that health codes are an unjust infringement on the rights of property owners, then we can make a logical extension and apply this same argument to building codes, fire codes, etc. If a property owner is willing to accept the risk of having tenants live or work in buildings that are structurally unsound firetraps, then who is anyone to stop them?
Would you consider a county master/general plan upon which all future zoning ordinances will be based a "zoning law?"
I watched some poor widow approach the county assessment appeals board and plead with the county to purchase her property for it's assessed value as the new General Plan being proposed restricted her old age investment backed expectation of being able to subdivide her large parcel to support her in her old age. When she bought it, it was divisable down to 10 acre parcels.
The proposed and subsequently adopted master plan reduced the expected value by over 75% and in truth, she could no longer find an interested buyer at any price, thus her plea to the county to buy it because when she needed that value most, she couldn't liquidate it at ANY price!!!
Keep equivocating that this or that is legal, when you know full well there is no equivalence between morality and legality. I remind you of the quaint bumper sticker that says:
DON'T STEAL! GOVERNMENT HATES COMPETITION!
As to Non-Smoking legislation, litigation and intellectual masturbation, I have another quaint bumper sticker that says:
WARNING: GOVERNMENT MAY BE HAZARDOUS TO YOUR WEALTH!
That's right, they are political takings of property value, usually by democratic means.
The reason these laws are in place is simple -- It is just not possible for a third party (the municipal government) to consider every possible impact that each and every development proposal might have on adjacent property owners.
True again, the market should do the valuation and government should stay out of it. The problem is that there have been so many takings of currently intangible value that pricing has become horribly distorted. Under a market, adjacent property owners who profit the most by open space contracts would pay the most. Around here, it's cheaper to pay off the open space district officials possessing the power of eminent domain.
Keep in mind, as well, that the word "adjacent" can mean an awful lot of property owners (including many that are outside the jurisdiction of the approving authority) when the scope of a potential development is large.
You assign the wrong reason for the popularity of zoning law with government officials. Where I live, zoning is used to manage inventory for a closed set of politically favored developers. They destroy the holding property value immediately prior to aquisition and then (after the politially annointed have picked the property owners' bones) convert the forest or farmland to development.
Zoning is the power to control property property value and, like all political power, it's corruption for sale. It doesn't work for nature and it doesn't work for a just and prosperous economy either.
Now you're really wrapping yourself around your own axel! Those unconstitutional property taxes paid to provide basic public roads and access and in cities, even street lighting and some utilities made possible by assessments on one's property would certainly make a strong legal case against any such action by any municipality.
These circular arguments are convincing me that you have not been to law school, or even on the debate team with a good coach in high school. At first I was jumping to another conclusion about you based on your attempt to bait people on this thread with legalistic machinations.
I'm not trying to get insulting, but I happen to believe that "the law," our great teacher, should work toward "the good." I believe the constitution was constructed as the second greatest "inspired" moral code in Earth's history. These planning and zoning laws along with building codes, are all morally challengable in my opinion.
In my county over 70% of the structures standing today were never subject to building codes and very dang few are dangerous to anyone except trespassers and other scoflaws and legalistic litiguous liberals!!!
Keep it coming! I like to argue and you give me so much to work with.
In that case why didn't the town planning commission just amend the zoning regulations for that area?
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