Eminent Domain - Ledger - OpEd: Chen: Repair laws

Published in the Star-Ledger, Friday, June 1, 2007

[OpEd]
Repair state laws to stop abuse of eminent domain

BY RONALD K. CHEN

Almost two years ago, the U.S. Supreme Court held in Kelo vs. City of New Lon don that the city could use eminent domain to take the homes of some of its residents and transfer the land to other private parties to build new offices, shops and residences.

A 5-4 majority of the court concluded that because a community benefits from general economic growth, redevelopment serves a "public purpose" that can justify the use of eminent do main even though the property is not being used for a public use such as a school or a road but given to private redevelopers.

But the court also said states are allowed to impose additional limits on the use of eminent do main for private redevelopment.

Indeed, New Jersey has an additional protection against abuse of eminent domain for private redevelopment built into our state constitution, but that protection has been eroded.

Our constitution permits the government to use eminent do main for private redevelopment only in "blighted areas." Over the years, however, the New Jersey Legislature has repeatedly amended the definition of "blighted area" to the point where it now fails to impose any real limitation on the use of eminent domain, as the constitution requires.

The long-understood meaning of "blighted area" is a neighborhood that is deteriorated or on the decline. But today, New Jersey law defines a blighted area with vague terms such as "not fully productive" or lacking "proper utilization."

Such broad criteria could apply to any property that a town believed could be used better or made more productive. Thus vir tually no parcel of land in New Jersey is safe from such pursuit.

New Jersey's laws governing eminent domain for private redevelopment also lack basic protections, such as requiring clear no tice to affected residents and business owners, ensuring a fair hearing and providing adequate compensation when property is taken.

Our recent report documents what happens to New Jersey residents because of the inadequate protections in the law. Families in perfectly safe and functioning neighborhoods lose their homes. And residents and business owners lose their property without adequate notice or hearings and without fair compensation.

We have worked closely with New Jersey lawmakers to fix these problems by changing the state's redevelopment law to protect people's rights while ensur ing that sound redevelopment projects can still move forward.

A comprehensive reform measure must tighten the definition of "blight," making it clearer, narrower and more objective. It should eliminate vague terms like "not fully productive" or "lack of proper utilization" and retain more specific blight criteria, such as vacancy, environmental contamination or dilapidation.

Repairing our eminent domain laws also means adding critical protections for tenants and owners so they receive clear warnings that their homes could be taken. We need fairer municipal hear ings and a level playing field when citizens challenge a town's actions in court.

Finally, reform must ensure that homeowners, renters and business owners are compen sated enough so they can buy or rent a similar home or launch a new business if they must relinquish theirs.

All of these measures are es sential to stop abuse and make the redevelopment process fair. Predictions that such reforms would end good redevelopment in New Jersey are unfounded. In fact, most towns that lead successful redevelopment efforts tell us they already follow these basic requirements because it's the right thing to do and it helps build community support for projects.

It is impossible to know the prevalence of eminent domain abuse. Many homeowners whose rights are violated lack the resources to engage in expensive litigation with towns. So they simply pack up and move.

But the injustices documented in our report highlight the need for the Legislature to repair the laws governing the use of eminent domain for private redevelopment. These laws are inadequate to protect the rights of tenants and owners and to prevent abuses that result in lost homes and businesses and other irrecoverable damages, both financial and personal.

Ronald K. Chen is the state's pub lic advocate.

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