Top court favors eminent domain: North Jersey Herald-News, 6/24/05

By John Brennan

The U.S. Supreme Court, in a ruling watched closely in New Jersey, on Thursday upheld a Connecticut city's right to seize homes and other properties solely for economic development.

The 5-4 decision is likely to make it easier for dozens of North Jersey towns to use eminent domain condemnations in similar ways, supporters and opponents of the decision agreed.

"Englewood, Ridgefield, Passaic - many towns have been adopting plans in the past several years based on economic redevelopment, and I believe this means that it's now full-steam ahead," said Bruce Rosenberg, a land-use attorney for the Hackensack-based law firm of Winne, Banta, Hetherington, Basralian & Kahn.

"This is what could be called the Supreme Court's imprimatur on those efforts, basically adopting what New Jersey already has adopted in its legislation."

Clifton, Lodi, Paterson and Hawthorne are among the other North Jersey communities using or considering using eminent domain condemnations for economic purposes.

Fair-housing groups and potentially displaced tenants were among those who railed against the court's refusal, in the Kelo v. New London case, to reverse decades of broadening use of eminent domain, which at one time restricted the taking of property to such public benefits as highways and bridges.

"This creates open season on neighborhoods," said Jeff Tittel, executive director of the New Jersey chapter of the Sierra Club.

In Ridgefield, where more than 60 businesses in a 30-acre tract have been earmarked for redevelopment, the decision disappointed business owners.

"It gives local governments too much power," said Thomas Bonanno III, whose family-owned real estate group rents commercial space to 27 companies, employing more than 150 people in the area.

"It destroys people's livelihoods and takes away their property."

The linchpin of the Ridgefield plan is the 15-acre site of the former Pfister Chemical plant, next to Overpeck Creek and south of Route 46. It includes an abandoned factory, loading docks and chemical tanks.

Alan Mallach, research director for the Montclair-based National Housing Institute, said he did not object to the court's upholding of the principle of eminent domain.

"But what the court didn't recognize is that there is a real problem of abuse in a whole bunch of towns in New Jersey, where the economic redevelopment power is used in areas where the main objection is that there are too many poor people there or too many renters, " Mallach said.

"I personally think that there ought to be some constraints."

Former Fair Lawn Mayor Ed Trawinski, an attorney with expertise in land use and zoning, said the power of municipalities is now so broad that a town council could, for instance, condemn a city block simply to replace large-family dwellings with residential options that would require fewer city services.

But Scott Mollen, an attorney for Herrick Feinstein, which has offices in Newark and Princeton, said that the court properly recognized that New London is an economically depressed town that needs to change with the times.

"The majority recognized that the benefits to the community at large outweigh the rights of an individual property owner to, in essence, block important urban redevelopment, especially when the law already requires that an owner receive fair and just compensation," Mollen said.

Lodi trailer park residents have a court date for July 18, when they hope to prevent losing their homes to a private developer's plan to construct a gated senior-living community and retail property on the land. "It certainly would have been helpful if they placed some limitations on its [eminent domain's] use," said Kendall Kardt, president of Save Our Homes, the group organizing the legal fight for residents of Brown's Trailer Park and Costa Trailer Court.

Lodi Mayor Gary Paparozzi called the ruling a "shot in the arm" for the borough.

"The trailer park is like a poster child for redevelopment," Paparozzi said. "That's the best-case scenario for using eminent domain."

Mary Gail Snyder, research fellow for the National Housing Institute, said that the trend toward waterfront development in New Jersey in areas such as Hoboken and Jersey City is not necessarily affected, because most of that land consists of large parcels with a single owner.

"But this ruling could now allow the same market trend to expand even to where there are neighborhoods," she said. "Before, developers were discouraged from that, because you'd have a lot of small landowners and it would have been harder to get all of them to agree [to sell]."

The ruling was hailed by Newark Mayor Sharpe James, whose city is planning a $550 million, 2,000-condominium project on a 13-acre parcel that was declared blighted for eminent domain purposes in November.

"Our Mulberry Street project is a clear example of the Supreme Court ruling where the future of the city is more important than private profit motivations," James said in a statement.

Mollen, the lawyer, disputed contentions that Thursday's ruling will dramatically affect the New Jersey redevelopment landscape.

"Most government agencies already have been proceeding on the assumption that economic development is a valid justification [for invoking eminent domain]," Mollen said. "I don't expect any unleashing of massive new development."

Supporters and opponents both agreed on one thing: The ruling does not preclude the state Legislature in Trenton from passing a law restricting the use of eminent domain.

"If a state wants to set the bar higher for eminent domain use, it still can," said Dianne Brake, president of the Trenton-based Regional Planning Partnership. "The process has to be transparent, for instance, to help avoid having graft come into play."

Justice John Paul Stevens wrote for the majority that it was up to local officials, not federal judges, to determine what uses of eminent domain are beneficial.

The court's other left-leaning judges agreed, while moderate Sandra Day O'Connor wrote in her dissent of a concern that "disproportionate influence and power" was being granted to municipalities.

North Jersey Herald-News: www.northjersey.com