New Jersey Eminent Domain Law Blog

"The intense reaction - this backlash - has caught a lot of people off guard," said Larry Morandi who tracks land use developments for the National Conference of State Legislatures.

The Kelo case has galvanized citizen opposition to eminent domain. Property owner groups have organized and are litigating and protesting against eminent domain projects. When the developer/municipality duo implements a redevelopment plan for so-called blighted properties, it results in the worst horror stories. In his Star Ledger editorial yesterday, Bill Potter characterized the misuse of eminent domain and he was right on the money:

...the economic development rationale for "takings" is often a euphemism for a stealth war on the poor and near poor. Getting them out to make way for tonier new residents is often the unspoken agenda for replacing garden apartments with high rises or malls.

In Long Branch, retired cottage dwellers will be displaced to make way for condos for the rich; in Lodi, trailer park dwellers face eviction to make way for upper-income housing and shopping -- and on it goes across the state.

The residents of the trailer park and the 36 remaining residents in Beachfront North are for the most part defenseless. It costs money to fight City Hall and developers with deep pockets. Many displaced residents and small business owners do not possess the wherewithal to hire attorneys, and planning experts, and to fight the project. Justice O'Connor, in her dissent in Kelo, identified the problem as follows:

Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.

The bipartisan backlash post-Kelo dissipated when Congress passed an Energy Bill on July 29, 2005 as reported in the Washington Post:

The bill gave the federal government new eminent-domain powers to clear paths for power lines -- a long-standing demand of the nation's electric utilities. The utilities said they were being thwarted by not-in-my-back-yard opposition, so the politicians came to their rescue.

On the same day, the Stamford Advocate showed Governor Jodi Rell of Connecticut in a classic move of political duplicity. Rell wants the Connecticut legislature to pass a law limiting the power of eminent domain. Simultaneously, she backs the New London development which is taking Susette Kelo's house. Rell wants it both ways--her stand is typical of what we see state politicians doing in response to the public outrage over the Kelo decision:

Rell quoted the dissenting opinion of Justice Sandra Day O'Connor, who sided with the Fort Trumbull, New London, neighborhood homeowners in their claim that one person's private property should not be turned over to another private entity merely because a city can raise more tax revenue from the new development.

"Her statement has been used largely to encourage more people to become involved, and that is, who knows, it could be your private home that is next to be used for a strip mall," Rell said. "While she was in the dissenting opinion, that has really triggered a lot of reaction from people all across the nation."

Rell said the state has "a lot of money invested in that project and it should go forward." But she added: "If there is a question, can we co-exist with those houses that are currently there, I think we should make every effort to do so. In areas where we have already taken property by eminent domain, in those areas it was a blighted area, and by all means that was a good use of eminent domain."

California legislators have proposed constitutional amendments limiting eminent domain powers, while the city of Santa Cruz takes advantage of the Kelo ruling to seize land and force a sale of privately owned property so a developer can put up 54 condo units. The New York Times reported:

In Santa Cruz, the plans pit one family against the city's long effort to redevelop a downtown hit by the 1989 earthquake. With the Supreme Court's ruling, city officials here said they felt free to seize a 20,000-square-foot lot they considered a blight.
...To the family, the seizure is legalized theft and shows how the court decision can be used to take anyone's property under the broad rubric of public use.

The National Law Journal surveyed the states' varied responses to the Kelo decision:

Since the June 23 ruling in Kelo v. City of New London, 125 S. Ct. 2655, lawmakers in 28 states have introduced more than 70 bills. But while most lawmakers agree on the nature of the problem, their solutions vary from state to state.

Legislators in Texas, Florida, Oklahoma, New Jersey and Michigan are mobilizing to support state constitutional amendments prohibiting eminent domain for private development.

In California, which has some of the strictest proposed legislation, two bills would prohibit the exercise of eminent domain for private use under any circumstances, while lawmakers in Texas, Minnesota, Delaware and Connecticut would simply limit the use of eminent domain for private projects or tighten eminent domain procedures.

The legislators certainly have their finger on the pulse of the voter and feel the outrage directed at eminent domain abuse. However, developers are equally active in lobbying the politicians to approve their favorite projects. Whether avowed legislative concern translates into real change in the eminent domain statutes remains to be seen.

"�the Court suggests that property owners should turn to the States, who may or may not choose to impose appropriate limits on economic development takings. �This is an abdication of our responsibility. States play many important functions in our system of dual sovereignty, but compensating for our refusal to enforce properly the Federal Constitution (and a provision meant to curtail state action, no less) is not among them."--Justice Sandra Day O'Connor, dissenting in Kelo v. New London

I just read in the Asbury Park Press that the Walmart may not be built on Highway 37 in Manchester because of a snake. However, on same page we read that people are being forced to sell their homes so that rich corporations can build big condos. Now, a snake can stop the building of a huge Walmart in Manchester, but people don't seem to have the same rights as the snakes. Tell me what is wrong with this picture?
Toni Johnson
Whiting NJ 028759