Reasons to limit eminent domain: Philadelphia (PA) Inquirer, 5/30/06


By Ronald K. Chen

Eminent domain is one of the most awesome powers Americans have entrusted to government.

It is therefore crucial that the laws governing its use ensure a just and transparent process that fully protects the rights of tenants and property owners.

This is particularly important when eminent domain is used for private redevelopment because, in these cases, the opportunities for misuse, abuse and injustice are often even greater.

Unfortunately, current laws:
  • Allow for the use of eminent domain in areas that do not meet the constitutional requirement of a "blighted area."
  • Require little meaningful notice to affected tenants and property owners.
  • Offer few opportunities for real public participation.
  • Provide little meaningful opportunity to appeal the designation of blight to an impartial third party.
  • Permit compensation for taken property that is so low it does not allow homeowners to ever own a home in their town again.

The system for using eminent domain for private redevelopment in New Jersey needs to be reformed.

Statutory criteria must provide real limitations on the ability to use eminent domain for private redevelopment, as the Constitution requires.

For example, under current law an area can be deemed blighted if it is found to be "not fully productive," which could apply to virtually any property.

Such broad criteria must be removed.

Revised criteria for designating an area as blighted should be based on an assessment of the current state of an area, not its potential future use.

All tenants and property owners in a proposed redevelopment area should receive notice via certified or regular mail, at least 60 days prior to the public hearing, indicating that their municipality is considering designating their property as part of a "blighted area."

Such notice should make explicitly clear that a consequence of this designation is that their property can be taken using eminent domain.

The hearing to determine the blight designation should be recorded, testimony should be provided under oath, and affected citizens should have the opportunity to bring witnesses.

If the matter ends up in court, the municipality should be required to present "clear and convincing evidence" the area has been properly designated blighted, thus putting the burden of proof on the municipality.

All meetings about the development of the plan should be public, with recorded meeting minutes. The plan itself should be required to provide more detail, including more specific time frames, a detailed relocation plan, an assessment of the impact on affordable housing, and specific justification as to why it is absolutely necessary to acquire each property.

Property owners should be offered the chance to rehabilitate or redevelop their own properties in accordance with the goals of the redevelopment plan, where feasible. Low-income displaced tenants should also receive up to five years of rental assistance if comparable and affordable replacement apartments are not available in the municipality.

Replacement value should be defined as enough to buy a home of similar size and quality within the municipality under comparable conditions.

Enact pay-to-play reforms that apply to all local redevelopment projects and contractors, including consultants hired as part of the project. Redevelopment contracts should be competitively procured.

Philadelphia Inquirer: www.philly.com

Ronald K. Chen is the New Jersey public advocate. This article is adapted from the summary of his report May 18 proposing curbs on the use of eminent domain, or condemnation, by local governments to acquire property for redevelopment.