Eminent domain plans not always successful: NorthJersey.com, Hackensack NJ, 9/16/07

By John A Gavin

When a developer devised a plan in early 2006 to turn Little Ferry's drab industrial area into a 12-acre, tax-generating waterfront, the concept appeared enticing.

A hotel along with restaurants, retail shops, condos, office space and parkland would replace an abandoned pipe company and several underused commercial sites along the Hackensack River.

But the plan created an uproar among residents because it called for designating the area blighted and condemning several homes and small businesses through eminent domain.

The project was shelved within a month.

Invoking eminent domain for redevelopment, although affirmed by a landmark U.S. Supreme Court decision in 2005, is no walk in the park for towns and developers in North Jersey. Many eminent domain proposals in the region wind up like Little Ferry's, with developers making traditional offers to property owners to purchase land, or simply abandoning the project.

Over the last few years, several proposals, including ones in Ridgefield, Clifton, Fairview, Englewood and Lodi, have been made by developers to employ eminent domain, only to have the idea downsized or shelved.

Attorneys and land-use experts differ on the reasons why developers often fail to convince local towns to push through aggressive land seizures. But they agree that the region's small-town setting is a contributing factor.

"There is a better ability to communicate and organize people [in small towns than in large cities]," said Ed Trawinski, a councilman in Fair Lawn who is also a municipal land-use attorney. "Certainly, elected officials are responsible to the electorate."

When Little Ferry residents waged a campaign to stop the development, they formed a coalition that sent out letters and fliers, flooded municipal meetings and threatened a lawsuit.

"I'm not against redevelopment," said Dennis Francis, the attorney for the Little Ferry Homeowners and Tenants Association, formed two weeks after the proposal. "Something needs to be done because it's an eyesore. But we thought it was a misuse of governmental power to take property."

Opponents of eminent domain proposals have banded together with success in several other towns.

Lodi, with newly installed council members who had campaigned against the project, dropped its five-year battle in July to seize two trailer parks and 20 acres along Route 46.

In Ridgefield, public outcry two years ago against a plan to seize a 58-acre industrial tract that included homes bordering Overpeck Creek caused the borough to downsize the plan. Under the smaller proposal, the developer negotiated with several large industries willing to move. The plan is still alive but on hold, officials said.

Several communities, including Clifton and Fairview, have quashed land seizure proposals before the idea reached the Planning Board.

"We've been approached by several developers," Clifton city planner Dennis Kirwan said about the city's plan to revamp Botany Village, a neighborhood of older residential and commercial areas near the Garfield and Passaic border. "We flatly said no. We want to come up with more creative ways [for financing] on a friendly buy basis."

Other towns, including Ridgefield, Paramus, Bogota and Little Ferry, took preemptive action after the 2005 Supreme Court ruling bypassed ordinances limiting the powers of local government to condemn.

But other redevelopment projects involving eminent domain have moved forward, or may in months to come.

For example, a $40 million downtown redevelopment in Cliffside Park that includes new shops, restaurants and midrise apartments, is under construction.

"The borough followed the statutory guidelines set by the state," said Christos Diktas, the borough attorney in Cliffside Park "It will create a new economic hub for the borough."

Eight years in the making, the project took 12 properties with little opposition, he said. There is no timetable on its completion, he said.

In Emerson, a proposal that would replace as many as 40 businesses with new mixed-use buildings along Kinderkamack Road is still in the planning stage, and officials have said they will use eminent domain only as "a last resort."

In Hackensack, a Main Street renewal proposal is before the Planning Board. Eight of 14 parcels on two blocks north of the county courthouse are candidates for redevelopment through eminent domain.

Some land experts say that most land seizures are unfair.

"Developers think they can steal the land," said John H. Buonocore, a Morristown attorney who represented 16 Englewood business owners five years ago when the city tried to convert 60 acres south of Route 4. "Redevelopment law does not permit the designation merely because the town needs more money."

Buonocore, who co-authored "N.J. Condemnation Practice," a handbook for attorneys, said eminent domain developers tend to seek rock-bottom prices on land near a river, a railroad station or major highway to maximize profits.

He and several attorneys expect more towns to use restraint in approving such proposals based on a state Supreme Court decision in April. In that case, the court ruled that in order to determine the Gloucester County waterfront property blighted, the locale has to be stagnant, unproductive and negatively affect the surrounding area.

In North Arlington, a political split and bitter battle over eminent domain has escalated into a testy court case, with the developer suing the borough for not living up to its agreement by a prior administration to condemn a string of industrial businesses in order to build luxury condominiums and retail space.

Early this year, a new Borough Council took control, reversing the town's support for the project.

Borough officials say they are optimistic should the case reach a higher court.

"Courts are taking a closer look at the evidence the towns are presenting," said North Arlington Borough Attorney Anthony D'Elia. "Now the courts are forcing the towns to prove their case."

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