Eminent Domain - NY Times - Public Advocate's Report

Published in the New York Times, Wednesday, May 30, 2007

Public Advocate Seeks Stronger Protections for Property Owners

By RONALD SMOTHERS

TRENTON, May 29 — The New Jersey public advocate urged the Legislature on Tuesday to adopt a law that would make the use of eminent domain more equitable, while preserving it as a valuable redevelopment tool for many hard-pressed cities.

Ronald Chen, the state’s public advocate, renewed his nearly year-old call for changes in the state’s redevelopment law in a report detailing some abuses of the taking of private property by municipalities. The report also highlighted several court cases in which his office filed legal briefs supporting challenges to the eminent domain process as it now functions.

“Many towns pursue redevelopment with respect for the rights of property owners, and courts regularly uphold the use of eminent domain against challenges by property owners,” the report said. “Nevertheless, our review of the case law reveals startling injustices. And our review of the statute reveals a system that lacks the basic protections necessary to prevent such injustices.”

Among the major changes called for in the report was a tightening of the definition of “blighted area,” a term that allows towns to invoke the use of eminent domain; a longer and more transparent hearing and notification process; and an increase in the compensation for any property taken.

In addition, Mr. Chen, in his second report on the practice of eminent domain, called for changes that would require municipal governments to justify property takeovers in court rather than requiring property owners to prove that the procedure was faulty. Last year his office urged more protections for property owners and tenants.

According to municipal officials and others familiar with the debate over the issue in the state, there is general agreement on the need to make the process more equitable and to provide more compensation. But there is less agreement on the need to sharpen the legal definition of blight, and hardly any agreement on shifting the burden of proof in such court cases to the municipality.

Changes in the state’s redevelopment law governing the use of eminent domain have been an issue in the last two legislative sessions after a United States Supreme Court ruling in 2005 that cleared the way for New London, Conn., to replace a rundown residential neighborhood with office space, a hotel, new residences and a riverwalk. Since then nearly 36 states have passed laws intended to curb or limit the use of eminent domain.

In New Jersey, the efforts have pitted homeowner groups in several towns against municipal officials, developers and a host of planners and lawyers who insist that eminent domain is crucial to redeveloping some urban areas and attracting private investment.

A measure that includes many of the changes advocated by Mr. Chen passed the Assembly last year but failed in the Senate. Gov. Jon S. Corzine has generally supported revising the eminent domain process, but in the absence of specific proposals from the governor, Mr. Chen has been seen as the administration’s voice on the issue.

Anne Babineau, a lawyer who is an expert on municipal land use, said that there was some indication in Mr. Chen’s report and in her discussions with municipal officials that there was a willingness to compromise on a scaled-back measure.

Ms. Babineau noted the significance of Mr. Chen’s acknowledgment that municipal use of redevelopment law and eminent domain had been fair in some cases.

“It is showing that he has come to appreciate the need to preserve eminent domain as a tool,” she said.

Of the four elements cited by Mr. Chen as necessary for any reform, Ms. Babineau said she thought that mayors and their supporters in the Senate could agree on a scaled-back bill that dealt specifically with increasing compensation and making the condemnation process more transparent.

In addition, she said it was her belief that mayors and others who saw redevelopment as an essential tool would be willing to compromise on what constituted blight.

Mr. Chen has said that current definitions of blight are vague and so expansive as to eliminate any barrier to condemnation. He cited examples in which municipal officials found that properties were “not fully productive” or that there was “a lack of proper utilization.”

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