Eminent Domain - NY Times - Public Advocate Says Municipalities Have Too Much Leeway to Seize Land

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Published in the New York Times, Friday, May 19, 2006

May 19, 2006

New Jersey Public Advocate Says Municipalities Have Too Much Leeway to Seize Land

By DAVID W. CHEN

TRENTON, May 18 — New Jersey's laws allowing local governments to use eminent domain for private redevelopment are so broad that they are prone to misuse and often fail to protect the people and businesses that are displaced, according to a study released on Thursday by the state's public advocate.

Wading into one of the most contentious issues in the country, the public advocate, Ronald K. Chen, said that the use of municipal condemnation power has "expanded to the point where it provides virtually no limitation on taking private property for redevelopment, in apparent violation of the constitutional intent to limit this power." The law has become so permissive that no other state gives local government more leeway to interpret what constitutes a "blighted area," the legal basis upon which property can be taken, the report found.

Under New Jersey's eminent domain laws, even Drumthwacket, the governor's residence in Princeton, could be subject to eminent domain, the report said.

Eminent domain has unnerved residents across America ever since a ruling by the United States Supreme Court last June upholding the authority of New London, Conn., to condemn older homes near the Thames River to make way for a private development. (So far, no people have been forced from their homes.)

But almost immediately, an unlikely collection of liberal urban groups and conservative property-rights organizations attacked the ruling. And since then, lawmakers in several states have passed laws or proposed ballot initiatives, aiming to curb the power of eminent domain.

For instance, new laws in six states — Alabama, Georgia, Indiana, Pennsylvania, West Virginia and Wisconsin — tighten the definition of blight. And bills in Indiana, Kansas and Michigan would require more compensation for those displaced by eminent domain, said Larry Morandi, director of state policy research for the National Conference of State Legislatures.

New Jersey has always attracted an inordinate amount of attention because it is, according to Dana Berliner, a lawyer with the Institute for Justice, a nonprofit law firm in Washington, one of the worst "abusers" of eminent domain. But Thursday's report was particularly valuable and unusual, Ms. Berliner and other experts said, because it came from a state's executive branch and not a legislative body.

"I think the public advocate — particularly on points about how redevelopment plans and blight are designated under New Jersey's laws — was spot on," Ms. Berliner said. "Unless you're already in that system, and benefit from that system, anyone outside would say, 'What on earth is going on in New Jersey?' "

The report is careful not to embrace the sentiment that eminent domain for any private development should be abandoned, as was the case with a recent law passed in South Dakota. Instead, it states that "redevelopment of truly blighted areas is a legitimate public purpose that serves the greater good by helping revitalize communities and create more opportunities for residents."

But in often blunt language throughout the report, Mr. Chen found that the state's eminent domain laws were so poorly worded that they gave insufficient notice to affected property owners and offered few chances for appeal or public input. The report also found that the laws often provided so little compensation to owners of condemned properties that they were priced out of their communities.

In particular, the report cited a 1992 law as being instrumental in making it easier to use eminent domain, by virtue of a few changes in the definition of "blight."

So among other recommendations, the report urged the Legislature to revise or update some of those definitions and strengthen ethics rules to ensure that government officials working on a redevelopment project, and those working for them, do not benefit personally. It also urged the Legislature to give property owners more time to appeal, and more money for being displaced.

When asked about the report, Gov. Jon S. Corzine, who criticized Supreme Court decision last year during his campaign for governor, said he had not read the full report. But he expressed confidence in Mr. Chen, whom he chose to lead the new office.

"At least on the early briefings that I had that were leading up to the publication of the report, it didn't seem like he was overstepping the line," he said. "But I haven't read this report and the specifics of how it gets translated into specific actions."

After the report's release, Mr. Chen discussed it before the Assembly Commerce and Economic Development Committee. He got a warm reception even when he gave technical responses.

"I'm a professor, not a lawyer — I give you an A," said Assemblywoman Amy H. Handlin, a Republican from Monmouth County.

http://www.nytimes.com/2006/05/19/nyregion/19domain.html?_r=1&oref=slogin

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