Debating the benefits of eminent domain: northjersey.com, Hackensack NJ, 4/15/07

By Adrienne Lu

Since the U.S. Supreme Court upheld the rights of municipalities to seize homes and other private property in the name of economic development nearly two years ago, New Jersey lawmakers have been debating whether to restrict municipalities' use of eminent domain.

The Assembly has passed a bill that supporters say would help protect property owners. A version of the bill has been stalled in the Senate.

In the meantime, eminent domain controversies continue in North Jersey. In Lodi, residents of two mobile home parks await a decision from the state Appellate Division on whether the borough's plans to seize the property for redevelopment are acceptable.

Emerson may use eminent domain to help turn its downtown area into a $150 million swath of homes, shops and offices. And in North Arlington, the Borough Council agreed last year to condemn properties of owners unwilling to sell to EnCap Golf Holdings. The borough recently declared the agreement void, but EnCap is suing to have the terms of the 2006 deal enforced.

Supporters of the Supreme Court decision, Kelo v. New London, say towns need the authority to seize and redevelop properties to enable economic development, among other goals. But critics say towns should be held to stricter standards to prevent abuse.

Should New Jersey take steps to further regulate the use of eminent domain?

Michael Kates, a lawyer representing the homeowners in the Lodi mobile home park case, believes the state should establish basic criteria that must be met before eminent domain can be used for redevelopment.

"I'm a municipal attorney at heart, and believe that redevelopment is a useful tool," Kates said. "I just think there's some tightening that has to be done to protect people from being thrown out of their homes."

Joseph Burgis, president of Burgis Associates planning firm, said that although the Kelo ruling reaffirmed the rights of municipalities, the publicity "awakened everyone to the negative side" of the issue.

"It's a delicate balance between the needs of the municipality to utilize eminent domain in certain limited circumstances versus the property rights of individual property owners," Burgis said.

Kendell Kardt, a resident leading the fight to save the Lodi mobile home parks, doesn't trust government to decide when there is an overriding public need for eminent domain.

"Basically, they just want to be able to coerce people into selling their property and do what they think is best for a town, but I don't have any confidence really in government's ability to plan that kind of thing," Kardt said.

Some, including Edward Trawinski, a land-use and zoning attorney and former Fair Lawn mayor, believe the reforms being proposed now don't go far enough.

"Justice [Sandra Day] O'Connor in Kelo said if you allow government to take someone's property because you can generate more tax ratables, every Motel 6 will become a Hyatt," Trawinski said.

"I don't think anybody would say that housing that is abandoned and boarded up shouldn't be subject to the power of condemnation," he added. "On the other hand, if it's a good house and it just happens to be located in the wrong location, government should have to go a long way before they can flip it over to a developer."

Sen. Ronald Rice, D-Essex, sponsored a measure that is being combined into the reform bill. He said that in reviewing the existing statutes, two issues emerged time and again: the lack of transparency in the process, particularly for property owners, and fair compensation. He said he wants to make sure both issues are addressed in the new bill.

Gerald Salerno, who represents the Lodi Planning Board in its case against the mobile home park, said the power of eminent domain is essential.

"I think it's proven to be a very positive means by which a community can redevelop," Salerno said.

He acknowledged there is a potential for abuse, but said the process is "pretty well regulated by the court system" and by the requirements of state statutes.

Scott E. Mollen, a lawyer who specializes in real estate litigation, said that sometimes a private developer may simply be the best vehicle to achieve a broader purpose.

"The absence of abusive cases involving merely taking someone's property to make profit ... since the Supreme Court ruling, confirms my thesis that government has used eminent domain judiciously in the past as a general rule and would be expected to continue to do so," Mollen said.

Fort Lee has avoided using eminent domain several times, instead negotiating with property owners until reaching an agreement. The borough has exercised eminent domain only once in recent years, when it condemned an unfinished commercial building to allow another developer to finish it.

Raymond Levy, Fort Lee's economic development director, called eminent domain "a very, very powerful tool in terms of getting redevelopment going."

Levy said that as long as the state requires a municipality to establish that an area meets certain criteria before proceeding, eminent domain is a useful tool.

"I think at the end of the day ... these things really have to be looked at on a case-by-case basis, which they are in New Jersey," Levy said.

northjersey.com, Hackensack NJ: http://www.northjersey.com