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Legal Q & A


Eminent Domain,
the Position of Council Attorney
and Municipal Attorney Conflicts

Deborah M. Kole
League Staff Attorney

Deborah M. Kole, League Staff Attorney

Q I am on the governing body of a municipality that is a victim of “suburban sprawl.” Like many New Jersey municipalities, our population has grown enormously over the past few years, and we are anxious to preserve what little open space we have. We were distressed to discover that a developer who owns a parcel of land in town is planning to build a large number of homes on the property. The last thing the municipality needs is the increased traffic congestion and overcrowding of schools that will come with more residential development. We tried to buy the land from the developer to use for open space, but we could not negotiate an acceptable price. We would like to take it by eminent domain, but my colleague is afraid that this might be an illegal use of the power of eminent domain. Is he correct?

A Fortunately for you, recent case law indicates that municipalities may indeed use their eminent domain power for this purpose. The New Jersey Supreme Court, in the case of Mount Laurel Township v MiPro Homes, L.L.C. (a-85-05, decided December 7, 2006, affirming Mount Laurel v. MiPro Homes, 379 N.J. Super. 358) has clearly and unequivocally upheld the ability of municipalities to acquire open space through the exercise of eminent domain powers. The New Jersey State League of Municipalities was very happy to participate in the case as Amicus Curiae in support of Mount Laurel Township.

The case involved the acquisition of a parcel of land by Mount Laurel Township to save it from development and to add it to the inventory of community open space. The trial court had ruled against Mount Laurel Township because the township had no specific plans to actively use the parcel for recreation.

The Appellate Division, later affirmed by the Supreme Court, reversed that decision and ruled that the preservation of land, even when exercised simply to save it from development and to maintain open space as part of the character of the community, is an appropriate and valid exercise of the eminent domain power.

Q I am on the governing body of a community governed by the Mayor-Council form of government under the Faulkner Act. The mayor, of course, appointed the municipal attorney. We would like to establish the position of council attorney. Can we do this?




A Case law on this subject indicates that you cannot do so. In the case of Robertson v. Council of Washington Township, 200 N. J. Super. 481(Law Div. 1985), the court held that the separate position of attorney for the council is not authorized in a Mayor-Council form of government.

Q An attorney retained by our municipality as special litigation counsel is also representing a defendant in our municipal court. I was under the impression that his employment by the municipality precluded him from representing a private client in the same community’s municipal court, but he says that this rule no longer prevents him from doing so. Is this true?

A The New Jersey Supreme Court recently held, in the case of In re Advisory Committee on Professional Ethics Opinion No. 697, (A-98-2005), that the 2004 amendments to the Rules of Professional Conduct, which removed the “appearance of impropriety” standard from the attorney discipline rules, also modified the “municipal family doctrine,” which previously prevented any attorney representing an agency of municipal government or retained to represent the municipality for a limited purpose from representing a private client before any agency of municipal government.

The court said that now representation of the private client would only be precluded if the “…representation presents a substantial risk that the lawyer’s responsibilities to the public entity would limit the lawyer’s ability to provide independent advice or diligent and competent representation to either the public entity or the client” (R.P.C. 1.8(k))

The Court went on to say that a municipal attorney still cannot represent private clients before any agencies of that municipality, but attorneys representing a municipal agency or representing the municipality in a limited capacity were not precluded and were rather governed by the standard quoted above. Therefore, unless there is a conflict under that rule, the attorney retained by the municipality for special litigation only can represent both clients.



This column is for informational purposes only, and is not intended as legal advice.

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