8/29/2005

Eminent Domain: The Tipping Point: New Jersey Eminent Domain Law Blog, 8/28/05

By William Ward, Carlin & Ward

“Twenty years from now, people will look back at Kelo the way people look back at Roe v. Wade.” -- Grover Norquist, Americans for Tax Reform

The Economist declared that the “Supreme Court ruling that allows the government to seize private property has set off a fierce backlash that may yet be as potent as the anti-abortion movement.” A current list of proposed legislation by the states can be viewed on the Castle Coalition website. Even local ordinances are being drafted by municipalities, such as Middlesex, New Jersey, where Council President Jerry D'Angelo said, "I think it's comforting for individuals to know they're not going to be forced out."

D'Angelo also said a simple label change on the project from redevelopment to either revitalization or rehabilitation may be necessary. By identifying it as anything other than redevelopment, it would ensure that the council could never press for eminent domain. While the resolution is good for only one year — it would have to be reapproved at the January 2006 reorganization meeting — Mayor Ron Dobies said he would "absolutely" continue to support it and encourage its adoption each year. Councilman Michael Hompesch said the change would not affect the project's goal of creating a "nicer-looking area" along Mountain Avenue and Lincoln Boulevard.

Expressions of sympathy by township councils, while helpful in the short term as to as township’s disavowal of the use of eminent domain, are essentially meaningless. In New Jersey, the power of eminent domain is derived from the state Constitution, Article I, Paragraph 20; Article VIII, Section III, Paragraph 1, and the legislature (See the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 and the Local Redevelopment Housing Law of 1992, N.J.S.A. 40A:12A-1.) The power doesn’t go away: It remains. The political will to use eminent domain does change; however, this is as ephemeral as the next election cycle.

Meaningful change will come about only if the New Jersey Senate and Assembly adopt real changes to the above referenced statutes. This requires political will and not just grandstanding.

“The price of democracy is vigilance,” said Senator Robert Smith (D-Middlesex). The city never sleeps; the enemies of your constitutional right to property will be hard at work ensuring that their projects can go forward.

The National League of Cities is troubled by nine bills proposed by members of the U.S.Congress that would limit eminent domain for enonomic benefit: “On June 30, without one hearing and no record of verified abuses, the House of Representatives adopted an amendment to its housing appropriations bill (H.R. 3058) that would prohibit the use of federal funds to 'enforce the judgment' in the Kelo case. The Senate Appropriations Committee averted an anti-Kelo amendment to its housing appropriations bill, but the threat of an amendment is likely to resurface when the bill is considered by the full Senate after the August recess.”

We are entering the hurricane season. Between now and November elections, many states and the federal government will be hashing through proposed changes to the eminent domain laws.

The National League of Cities (NLC) has developed specific talking points that city officials can use with legislators to combat the groundswell of public sentiment against eminent domain. The NLC Grassroots Action Center advises city officials to “localize and personalize their message with examples of projects that would not exist but for the use of eminent domain or the ability to use eminent domain.”

Their talking points:
  • We urge Congress to slow down, take a step back, and consider the facts. The bills that have been introduced would create unintended consequences and severely hamstring our ability to promote the economic health of our cities and towns.
  • For example, without the power of eminent domain for economic development, our community would not have [insert specific examples of economic development projects in your community that would not exist but for the exercise of eminent domain or the opportunity to exercise eminent domain.]
  • The use of eminent domain in our community is already governed by [state statute / local ordinances] that contain appropriate checks and balances. We use eminent domain carefully, prudently and in the sunshine of public scrutiny. And consistent with the Just Compensation requirement in the Constitution, we ensure that property owners are fully and fairly compensated. [Insert specific local safeguards or processes you follow in exercising eminent domain.]
  • Eminent domain is a state-derived power. Decisions about the proper use of eminent domain – including whether additional checks and balances are needed to protect individual rights – are best left to the states and their political subdivisions. Congress should not and need not respond with one-size-fits-all, blunt, and overly broad federal legislation.


Opponents of eminent domain abuse should be equally organized in their calls to action.


New Jersey Eminent Domain Law Blog: www.njeminentdomain.com