Eminent Domain: New Jersey Bill A-3257 Amending the LRHL

Assemblyman John Burzichelli, Chairman of the Assembly Commerce and Economic Development Committee, will seek to move Bill A-3257 amending the Local Redevelopment Housing Law (LRHL) N.J.S.A. 40A:12A-1 et seq. out of committee today. A similar bill sponsored by Senator Ronald Rice, D-Newark, was discussed but no vote was taken by the Senate Committee of Community and Urban Affairs on Thursday June 15, 2006.

The latest version of Burzichelli's bill offers some help to property owners but does not go far enough. Here are some of the key changes - the good, the bad and the ugly.

1. First, the good news: Notice of a hearing regarding redevelopment must be served on both property owners and tenants by the clerk of the municipality by certified mail 14 days prior to the hearing. The notice will be required to state in plain language that if the area under consideration is declared "in need of redevelopment," it may result in condemnation proceedings against the property owner and the occupants of the property. Property owners and tenants would have 60 days to appeal instead of the current 45 days.

...The valuation of such properties in condemnation pending as of the date of the adoption of the bill shall take into account the uses permitted for such property under the redevelopment plan, and shall be based on the date the municipality files the declaration of taking or the date of the adoption of the redevelopment plan, which ever yields the higher valuation. For residential properties, if neither of these two valuations is equal to more than the replacement value of the home then the valuation of such properties much be at least the 'replacement value' of the home which shall be defined as the approximate value of the home of similar size and quality under comparable conditions within the municipality and within a reasonable distance of the property being condemned.

This effectively does away with the "scope of the project rule" as enunciated by the New Jersey Supreme Court in Jersey City Redevelopment Agency v. Kugler. Now, with the passage of this bill, an affected property owner may claim value based on the uses permitted in the redevelopment plan.

Another benefit is that displaced persons entitled to relocation assistance would be entitled to the rights and benefits provided under the New Jersey Department of Transportation (NJDoT)regulations and not the Division of Community Affairs (DCA) as presently practiced. This gives a displaced property owner or tenant additional benefits since the NJDoT regulations are patterned after the Federal Relocation Assistance regulations, while DCA adheres to the state regulations which are more restrictive. Right now, NJDoT regulations only apply to state highway and transit cases, while every other condemning authority comes under the DCA regulations.

2. The bad news: The definition of blight has been modified and expanded. The meaningless paragraph (h) referencing "smart growth planning principles" has been deleted, as well it should be, since no one with any knowledge of planning could tell you exactly what this means. However, we now have a new section (i), which gives the municipalities the right to condemn "parcels, either vacant or developed, which have remained vacant or substantially underutilized for a period of 24 consecutive months due to environmental issues associated with such parcel's historic use."

This is precisely what the legislature sought to accomplish last fall, when the only eminent domain revision it passed gave municipalities the right to take over the cleanup of contaminated property in condemnation proceedings where the owner was deemed not diligent in the pursuit of the cleanup. Now, if this bill is passed, municipalities could condemn large industrial sites such as National Lead in Sayreville, E.I. Dupont's site in Carteret, and "underutilized" sites such as Amboy Aggregates in Perth Amboy.

In addition to parcels included in a delineated area under this section ,an area in need of redevelopment may include other parcels containing lands, buildings, or improvements which of themselves are not detrimental to the safety, health, or welfare of the community, but the inclusion of which is found necessary, with or without change in their condition for the effective redevelopment of the area of which they are a part; provided, however that such parcels, in the aggregate, shall not comprise in excess of 20 percent of the land mass of such area to be designated as available for private ownership.

The above referenced section means if the parcels are not blighted, the condemning authority can take them anyway, as long they comprise 20 percent or less of the total area to be acquired. This section substantially increases the definition of "area in need of redevelopment", and it is no surprise that this version of Burzichelli's bill is supported by developers, builders, and the League of Municipalities. Redevelopment attorney Theodore Zangari of the Sills Cummis law firm is getting his wish, since he said, "The message to state legislators must be 'Mend it, don't end it.'" Read Kelo Fallout by Lisa Brennan in the New Jersey Law Journal, May 29, 2006. Download the article. Property owners who were expecting protection and restriction of the expansive definition of "area in need of redevelopment" (i.e., blight) will get no satisfaction if this bill is adopted in its present form.

3. And the ugly: Individuals charged with or assuming responsibility of the public interest are not on target regarding the revisions to the blight portions of the bill. Public Advocate Ronald Chen and Professor William Potter, a self-styled advocate leading a newly formed coalition against eminent domain abuse, should be vociferously opposing this expansion of the definition of "area in need of redevelopment." The New Jersey Constitution uses the word "blight." Public Advocate Chen has an extensive, scholarly discussion of how "blight" morphed into "area in need of redevelopment" in his report. [See May 21 post on the Public Advocate's report.]

Gregory Volpe's article Lawmaker proposes stricter eminent domain terms in the Courier Post (June 13, 2005)reports that Potter, chairman of the New Jersey Coalition against Eminent Domain Abuse said, "the flurry of changes to the proposal has him stumped."

"I'm still not sure what is the new definition of blight," Potter said.

Public Advocate Ronald K. Chen, who issued a report in May calling for a limited, objective definition of blight issued a statement saying the proposal meets that standard. "It revises the definition of blight so that it is more clear and objective, and appropriately restricts the ability of municipalities to use eminent domain for private redevelopment to those areas that are truly blighted."

Read the statute! This bill expands the definition, it does not restrict it! Many property owners affected by eminent domain naively thought that this legislative effort would help them. It does not, except for the notice and valuation changes. In its present form, A-3257 is window dressing so the Democratic powers can claim they have fulfilled Governor Corzine's campaign promise to reform eminent domain.

Written By:Bruce R. MacCloud On June 19, 2006 8:34 AM

In a world today in which technology, medicine, and man are advancing, why is it so difficult for a whole heap of legislators to not be able to revise and protect the people as our forefathers did 230 years ago from tyranny? It's the year 2006, and things have become aborted in order to profit from greed, given the opportunity to do so by our preceding legislators, to commit this atrocity of Eminent Domain Abuse upon the American people.

Written By:terry tan On June 19, 2006 9:12 AM

This bill is terribly flawed and as you said is window dressing for the unaware and does nothing to protect the property owner.
Seems to me Burzichelli is a wolf in sheep's clothing.

Written By:Fred Strahlendorf On June 19, 2006 11:50 AM

Nice report, Bill....Keep up the good work.

Written By:Maureen Nevin On June 20, 2006 8:59 AM

Bill -
You're doing a tremendous service keeping the public informed as this issue evolves - daily. I hope everyone tunes in to hear you, the bill's author Assembly member Burzichelli, Public Advocate Ronald Chen, William Potter and property owners debate these points Thursday night at 8 PM on Asbury Radio, 88.1 FM and at www.AsburyRadio.com Maureen Nevin, Host

Written By:Frances DeLuca On June 21, 2006 6:35 PM

Dear Bill,

You are the best. No one will ever distroy our democracy with wonderful lawyers like you in our corner. I know a winner and patriot when I meet one! Educating the public is the best defense we have, and you do it well!


Written By:Bill On September 7, 2006 10:23 PM

Bill, thank you for helping to protecting our civil liberties and keeping the encroachment of our rights at bay. We admire your work and thank you for keeping us all informed!

-GSA Team