Eminent Domain 1626-2005: A Brief History

It all began on the island of Manhattan nearly 400 hundred years ago. The old courthouse in Union County, (Elizabeth, New Jersey), has a beautiful mural behind the judge's bench in Assignment Judge Walter Barisonek's courtroom. When I tried several cases before then Assignment Judge Edward Beglin in this same courtroom, I would look at this mural and think, "That's the first taking." And, how can I work this picture of two Indians negotiating with two Dutchmen for the sale of Manhattan island for $24 worth of beads into my summation for this property owner! We've come a long way. Or have we?

Almost no one will argue that traditional public use takings (roads, schools, parklands, etc.) are necessary and promote the public good. Surely there will be arguments over just compensation, damages to the remainder, etc. But we have this in every condemnation case. Then, what's the controversy with eminent domain lately? It's always in redevelopment projects and the peculiar juxtaposition of politicians and developers. We all thought we understood public use and public purpose, and how these phrases were to be implemented when the sovereign (the state, municipality, state agency) sought to acquire private property for a public project through eminent domain proceedings.

In redevelopment projects, the municipality (sometimes in conjunction with the developer) commissions the planning board to hire a planning expert to prepare a study of a project area. This study results in a written report which always says the study area includes properties that meet the requirement for blight. Article VIII, Section III, Paragraph 1 of the New Jersey Constitution states that takings of blighted property for redevelopment is a public purpose. There's an erosion of public use sanctioned by the New Jersey Constitution. But that's not all. The Local Redevelopment Housing Law (LRHL) N.J.S.A. 40A: 12A-1 goes even further and uses the term, area in redevelopment, not blight. Our courts have ruled that these terms mean the same thing: see Forbes v. Board of Trustees of S. Orange Village, 312 N.J. Super 519, 526 (App Div) 1998.

The Word Reference defines blight as a state or condition being blighted: i.e., decay, unsoundness, deterioration, impairment, devastation, desolation. The legislature says blight means an area in need of redevelopment, and sets forth categories for blighted properties in N.J.S.A. 40A: 12A-1. Get the picture yet? It's the legislature, stupid! You've been had by your elected representatives.

But don't worry, after the outcry over the Kelo case, senators and assemblymen are falling over each other with bills to save the homeowner. In their haste to attract the voters, they ignore other categories of property owners affected by eminent domain: small businesses, tenants, and commercial landlords. Bloomfield and Long Branch are just two examples of municipalities that only see tax ratables and increased revenue and completely ignore the impact on their loyal citizens who have been living and working in their redevelopment areas for 30 or 40 years or longer. In many instances, the affected citizens are senior citizens or minorities who will never be able to participate in or duplicate the locations being taken from them by the condemnation of their property. "Don't worry," say the mayors. "You'll be paid a fair price and relocated at the town's expense."

"I don't want to sell!" say the property owners.

"Sorry," say the judges. "You didn't protest the municipal declaration of blight within the 45 days to contest municipal action."

In Long Branch, this took place ten years ago. In Bloomfield, it took place five years ago.

"I didn't get a notice," say the property owners.

But indeed they did. Constructive notice was published in the newspaper twice. In print too small for forty-something eyes. These notices say nothing about eminent domain; merely that these lots and blocks are included in an area being considered for redevelopment. Does the average citizen know that means condemnation is coming? The answer is no, and the law doesn't require the public notice to include a warning about eminent domain. Therefore, people don't pay attention at their peril.

No judge that we have appeared before in three recent cases in Bloomfield and Newark has extended the 45-day period to contest municipal action in "the interest of justice" or based on a "question of public importance." This doesn't preclude the property owner from raising these same defenses in the eminent domain case when it is filed and contesting the right to take. See Spylen v. North Bergen Download file. But the property owner's chances at this juncture are slim to none: and don't forget, even if the municipality did it wrong, they can come back again.

The power of eminent domain doesn't go away. Just ask the Native Americans´┐Ż