On September 15, 2006, the Township of Reading filed a condemnation complaint in the Superior Court of New Jersey seeking to take part of property owned by Solberg Aviation. The complaint alleged that the property was being acquired for use as open space. Solberg Aviation disputed this allegation and argued that the real reason for the taking was to prevent the expansion and modernization of the airport to allow larger aircraft to utilize the airport. The court scheduled a hearing for November 3, 2006, to review the arguments.

After reviewing the legal briefs and hearing oral argument, the trial judge stayed the condemnation case to allow Solberg Aviation to conduct discovery in order to prove its case. The discovery will focus on the Township’s “true motivation” in seeking to acquire the property. Under New Jersey law, acquisition of property for open space is generally deemed a valid public use which permits the government to use its power of eminent domain. However, New Jersey law also prohibits the use of eminent domain where there has been a “showing of improper motives, bad faith, or some other consideration amounting to a manifest abuse of the power of eminent domain.” These types of cases are generally referred to as “pretextual takings.”

It is important to note that the trial court did not find that there was an improper motive or bad faith on the part of the Township. Rather, based upon the limited evidence before the court, the trial judge found that Solberg Aviation made a prima facie case for a pretextual taking entitling Solberg Aviation to take discovery in the form of depositions, document review and the like. Among the evidence presented at the hearing was “admissions made by township officials as well as the auspice under which the $22 million bond was secured, both of which state that the reason for this action was to prevent expansion of the airport, and not the preservation of open space.” Solberg Aviation now has an opportunity to question township officials under oath, which ultimately may help Solberg Aviation prove its case. This case is another important case in New Jersey following on the heals of the Mipro case which is being considered by the New Jersey Supreme Court.

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