A twist on eminent domain: Taking farmland for wetlands

Thursday, June 01, 2006
BY JOHN WIHBEY, Star-Ledger Staff (New Jersey)

The state will use eminent domain to seize more than 17 acres of a working farm in Washington Township to offset wetlands lost because of road projects miles away in Sussex County.

The township's mayor and county officials have questioned the plan to turn farmland into wet lands and have written letters to the state raising concerns in recent weeks.

Department of Transportation officials said they will take parts of Steven Linz's 154-acre Harvestone Farms on East Avenue in Morris County to compensate for destruc tion of wetlands during four road construction projects in Sussex County.

Washington Township Mayor Tracy Tobin said taking part of a working farm to offset road work many miles away is "strange." He said the area's strong farming heritage should be protected.

"The state has poured millions of dollars into farmland preservation," Tobin said. "Why in the Lord's name would they turn around and attack a working farm?"

The wetlands creation project, which is to take place on two separate sections of farmland, would consume more than 10 percent of Harvestone Farms.

At Linz's request, the mayor pleaded the farmer's case with state officials. Tobin wrote to DEP Commissioner Lisa Jackson on May 18 that using two different pieces for the work would "cause the maximum disruption to farm operations."

DOT spokeswoman Erin Phalon said the project would only affect "fallow hay fields." She said the site was selected after reviewing 12 others.

"These wetlands will protect the river and better enhance wildlife habitat than other sites DOT investigated," Phalon said.

One parcel to be condemned is near the Musconetcong River, the other is near a creek and 10 acres are already in a flood plain, she said. They are in the same watershed as the Sussex road projects, according to DOT.

County Preservation Trust director Frank Pinto said Harvestone Farms lies in the designated "agricultural development area." His office wrote a letter May 16 to DOT charging that officials have not followed a law requiring a notice to be filed with the county for any condemnation of farmland.

Phalon said DOT had contacted the state Agriculture Development Committee. That committee and DEP still must give a final approval on the project, she said.

Local, county and state farm officials say it's an unusual twist in the growing state debate over eminent domain. More than a dozen bills currently sit in the Legislature that would restrict the use of eminent domain, though they focus on takings for private development.

New Jersey Farm Bureau official Ed Wengryn said taking property from an unwilling farmer is "something new for us." He said using eminent domain on a working farm is "very disturbing" and conflicts with the state's goal of protecting agriculture.

Linz, who has expressed his objections to local, county and state farm bureau officials, was unavailable for comment due to an illness, a family member said.

Spokeswoman Elaine Makatura said the DEP, which requires the creation of new wetlands when they are disturbed, gave DOT a permit to destroy wetlands in Sussex County.

"Where the mitigation takes place is not the DEP's decision," she said.

Phalon said the DOT "selected that location after studying various locations and working with DEP to determine which land is most suitable."

Two condemnations have taken place in the county in the past year or so, but both have been reviewed to ensure they didn't have an adverse impact, according to Pinto.

Washington Township Administrator Dianne Gallets said the taking of Linz's property is unfair. Still, she said, "The poor man doesn't seem to have a choice."

John Wihbey covers Washington Township. He may be reached at jwihbey@starledger.com or (973) 539-7910.

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