Eminent Domain Examined: New Brunswick NJ Home News Tribune, 6/3/07

Land grab or needed tool?

By Gene Racz

Public Advocate Ronald Chen has put himself at the forefront of ending the misuse of eminent-domain laws for redevelopment in New Jersey.

It now remains to be seen just how many citizens, mayors, planners and other interested parties will join him.

Last week, Chen issued a report listing specific abuses and remedies regarding the state's eminent-domain laws, which he characterized as "overbroad" and which allow the government to "take our homes and businesses without meeting the basic principles of fairness enshrined in the New Jersey Constitution."

Chen is calling for legislation to protect the rights of property owners while also preserving the tools municipalities need to carry out essential redevelopment efforts. A reform bill (A-3275), sponsored by Assemblyman John Burzichelli, D-Salem, has passed the Assembly and another reform bill by Sen. Ron Rice, D-Essex, has stalled in the Senate.

Both bills have received mixed reviews.

"Most mayors I talk with who do redevelopment don't support either the Assembly or the Senate version," said New Brunswick Mayor James Cahill. "I think we can eventually get a bill that preserves property owners' rights while also giving municipalities the tools they need to do effective redevelopment. I think people can sit down with Public Advocate Chen and others and get good, fair legislation passed."

Chen's report cited three elements that he feels should be addressed by any legislative reform enacted. They are:

  • Tightening the definition of "blighted area."
  • Making the process for using eminent domain more fair, open and transparent.
  • Requiring adequate compensation and relocation assistance for property owners and tenants.

"I'm glad Public Advocate Chen is leading the charge now in this state," said Edison Mayor Jun Choi. "I also believe that half the states now, ever since the Supreme Court's landmark Kelo vs. City of New London ruling, have adopted legislation focused on curbing eminent-domain abuses.

"The language of the law is just too vague," added Choi. "The report talks about the "bogus blight" issue and due process deprivation. It is astonishing under current law that you can use eminent domain without the owner even knowing about it — as an example. That's obviously ridiculous."

Under Choi, Edison voters passed a referendum question banning the use of eminent domain for private redevelopment in the township. Choi feels it has sent a strong message.

"I think the development community, mainly the irresponsible developers that did business in Edison in past, got a very clear message from our new administration: "We're not here to continue the hanky panky,' " said Choi.

"This really is a new era, we need legitimate public input and we have to address the pressing concerns."

That public input is ongoing, and at the end of Chen's report, the public advocate called for "continued feedback . . . to help achieve further improvements to A-3257."

While the Burzichelli bill addresses all three concerns Chen considered to be key, Cahill said he considers some of the bill's provisions problematic. He cites some requirements of notification to be unnecessarily onerous. Cahill also considers ill-conceived and impractical the provision which precludes a municipality from discussing a redevelopment project with a developer in advance of initiating the redevelopment plan.

Cahill asks things like: How would a redeveloper then know if a plan it crafted would even be accepted by a municipality? What about traffic disruption and things like sewer services? And wouldn't it be good for a developer considering a plan with slim profit margins to know if tax abatements were available?

Cahill notes that in his tenure as New Brunswick mayor, "dozens and dozens and dozens" of redevelopment projects have been completed and that the city has only had to work through problems with property owners in "a handful" of instances. Two of them are ongoing at the moment — one with the Gateway Center project on Somerset Street and another involving an auto-body shop which sits in the midst a proposed town house redevelopment project near Remsen Avenue.

"In New Brunswick, since I've been mayor, we've created 4,000 new jobs; we've reduced the unemployment rate from over 13 percent to now 4.4 percent; created 2,000 new housing units, half of which are affordable; cut the crime rate in half. Would that have all happened if we weren't able to exercise our powers of eminent domain, or take advantage of the redevelopment tools that were provided by the Legislature decades ago?" he asked.

"The answer is no, we wouldn't have been able to," Cahill concluded.

Across the river in Highland Park, Mayor Meryl Frank said that, while she had not seen Chen's most recent report, she and the borough officials "have taken a very gentle hand with redevelopment."

"We've been through our plan (for Highland Park) and we said that we would not take people's homes," Frank said. "We are not looking to bring in a master redeveloper. We are asking the property owners to do their own redevelopment, and that is happening in Highland Park."

"The reason redevelopment is an important tool is that it offers us more flexibility in getting property owners to clean up their property," Frank added. "Again, in Highland Park, most of (redevelopment) is curb cuts and connecting parking lots. We couldn't get rid of all of these driveways that go over sidewalks without redevelopment."

William Potter, past president of the Coalition Against Eminent Domain Abuse, now called Stop Eminent Domain Abuse, says he sees two things that would be helpful in bringing about meaningful eminent-domain reform — judicial and executive action.

"What we really need are two paths: one is (a ruling from) the state Supreme Court and the other is if Gov. Corzine will follow the footsteps of Gov. (Tom) Kean and Gov. (Brendan) Byrne and issue an executive order moratorium on eminent domain," said Potter, partner at Princeton law firm, Potter and Dickson.

"Both of those governors found their land-reform legislation stymied by the Legislature and then they impose a moratorium on development. Under Gov. Byrne it was in the Pinelands, and for Gov. Kean it was on the freshwater wetlands. Each one declared a moratorium through an executive order, and guess what happened? Suddenly the Legislature passed a significant reform bill."

At the moment, eminent-domain reform in New Jersey is at a crossroads awaiting compromise. Advocates of sweeping eminent-domain reform say that redevelopment abuses are impossible to quantify since some property owners don't even contest the taking of their property. Some estimate as many as 100 towns in New Jersey now have battles being fought over redevelopment using eminent domain.

Mayors who rely on eminent-domain laws to help assemble properties for "smart growth" projects that are beneficial to their communities are concerned about losing essential tools.

"Both the Rice bill in the Senate and the Burzichelli bill in the Assembly significantly undermine a municipality's ability to do redevelopment in a cost-effective and efficient way — if you do that, then redevelopment stops," said Cahill.

"What we don't want to see happen is the pendulum swing so far in the other direction that we make it so difficult for municipalities to do redevelopment, that whatever tools we've had before now become unusable."

New Brunswick NJ Home News Tribune: http://www.thnt.com