Eminent Domain in NJ: Halper Family Feud
The Halper family of Piscataway seeks to stave off eminent domain. Clara and Larry Halper are at the end of their rope as they seek a stay from the latest order from Middlesex County Superior Court. Judge James Hurley ordered that the Halpers must vacate their 75-acre farm, condemned by Piscataway township, on or before noon on July 17 or be forcibly evicted. Judge Hurley ordered the Somerset county sheriff to implement the Court’s order, because Middlesex County, where the property is located, has a conflict of interest.
The vision of an American family being forcibly evicted from their home as a result of eminent domain was predicted in this blog on September 25, 2005. This ugly reality will soon be played out for the Halper family in front of assembled media and numerous protesters who have been mobilized in support of the Halpers. It’s not too much of a stretch of the imagination to see this same scenario played out in Long Branch if the MTOTSA area property owners are unsuccessful in their appeal of the recent decision of Judge Lawrence Lawson denying their objection to the right to take these properties.
The Halper family has been involved in numerous disputes with Piscataway over the past several years, chiefly involving the price to be paid for their land. A Superior Court Jury sitting in Middlesex County awarded the Halpers $18 million for the property, which was valued by the municipality at $4.3 million. Eminent domain specialist Edward McKirdy of Morristown’s McKirdy & Riskin represented the Halpers. Of course, the township is appealing the jury verdict. Moreover, Judge Hurley may have commited a reversible error regarding the selection of the date of valuation. Apparently, he allowed the property owner to present proofs as of the date of the filing of the declaration of taking, instead of the date of the filing of the complaint, which preceded the declaration of taking by approximately three years. This difference regarding the date of valuation created a significant swing in the value, especially considering that New Jersey had been enjoying a booming residential real estate market. Residential subdivision was the highest and best use of the 75-acre farm. N.J.S.A. 20:3-30 (a-d) governs the date of valuation. It provides for the date of valuation to be the earliest of four possible dates:
a. The date of interference with the use and enjoinment of the property
b. The date of entry
c. The date of the filing of the complaint
d. The date of the declaration of blight
Since Judge Hurley’s trial court opinion was not published, we are not aware of his rationale for selecting the date of the filing of the declaration of taking, which is not one of the dates referenced in the statute. New Jersey Sports and Exposition Authority v. Giant Realty Associates (143 NJ Super 338 (Law Division, 1976), a case that I argued and Judge Theodore Trautwein decided in Bergen County, was the first case interpreting this statutory construction, and has been cited with approval by Appellate Courts on numerous occasions. See Township of West Windsor v. Nierenberg, 150 N.J. 111 (1997) and Mt. Laurel Twp v. Stanley A-103/104-2004).
The dispute over the Halper farm was at the center of a political scandal that contributed to the downfall of Governor James McGreevey and led to the conviction of Democratic fundraiser David D’Amiano. Prosecutors charged that D’Amiano demanded campaign contributions in exchange for receiving a favorable offer from Middlesex county officials for the preservation rights to the farm. McGreevey allegedly uttered his infamous “Machiavelli” code word to Halper at the request of D’Amiano, confirming that the fix was in. The only one who was fixed was Governor James E. McGreevey.
Unfortunately, it appears that the Halpers will ultimately be evicted. My prediction is that the jury verdict will be reversed by the Appellate Division and remanded to the trial court for a new trial with instructions regarding the proper date of valuation. And sadly, seven plus years after the date of taking (which occurred in 1999), the Halpers will not have received their constitutional right to just compensation.
I have to agree with you whole heartedly. It has become apparent that fighting back the tide of eminent domain abuse at the local level must be specialized. True, I feel the locals control the ball; however, before the first kick off, the citizens need to enter into a constructive dialogue with their elected officials, hopefully showing that the political will behind the broad use of eminent domain for private gain is far from democratic and more closer to socialism or even communism.
Before Kelo v. New London, we only saw mass take overs of private property in war torn eastern block nations or when the Israelis and Palestinians were at war. The first creed of social action under communism is that all property is owned by the government and whatever the government decrees is for the public good of all comrades. New Jerseyians need to start practising the salutation; "Good morning comrade."
Schneider in Long Branch, NJ, is really not to blame, and when the dialogue broke down between the city council and the MTOTSA alliance, we, the rest of the free world, got trapped in this all out war between the alliance and the the city council. All along, the statutes were the true enemy of the people. The whole point of political will has been handled by amateurs and, as a result, they froze over the compassion of those that at first glance may have just wanted to rid the city of some bad parcels.
So whether in Piscataway, Long Branch, Asbury or anywhere else in New Jersey, now that the political will of the elected has grown larger than the political will of the people, we have very little will left to bargain with. Failing an awakening of the political power of the people, the people will be the victims of greed everywhere in New Jersey.
Comrade Kevin...
PS: If you can't locate me in Long Branch, try France or maybe Ireland: they learned these lessons many centuries ago.
Bill, the only way to end this atrocity is to revolt! The people of this state must unite and dismiss this corrupt political machine. I'm so happy you are educating the public.
Fran
Bill,
I have followed this story off and on but still do not understand the reasoning behind the town/state claiming 'ED'? Were they trying to protect the town from the Halpers trying to sell the property to a developer?
What basis does the state/town have for this insane takeover?
The township of Piscataway justifies the acquisition as "open space preservation." Their argument is, therefore, that the preservation of open space is a public purpose. In my view, the Farmland Preservation Act would have been a better way to go. Open space is preserved; the Halpers continue to farm; and Piscataway pays the Halpers for the development rights on their property. I don't know if this was discussed in the Halper case, but it should have been.
DO NOT GIVE UP THE FIGHT! We here in New York have been following the Kelo decision, the Halper Family and other similar eminent domain cases.
St. Luke's Pentecostal Church - located on Long Island's New Cassel section of Westbury - had their property taken away by the town of North Hempstead for an urban renewal project. They bought property to build a bigger house of worship, but the town had other ideas. Until the New York Libertarian Party made a big stink about this, it looked like St. Luke's wasn't going to be paid. The $160,000 they finally received was less than the loan they took out for the land and construction, but at least more than what the town originally offered them!
This year, New York State will have libertarians on the ballot for governor, lieutenant governor, attorney general, state comptroller and U.S. Senate! I am urging the people of New Jersey to contact their local Libertarian Party chapter.
Libertarians are what most Republicans and conservatives USED to be: pro civil liberties, pro gun rights....pro the CONSTITUTION.
As a final note, please let me know if there is a fund to help the Halper Family. Seeing how they lost their farm, they are going to need housing. I'm wondering if some organization(s) is taking up donations for them. I'd really like to know. Also, I would appreciate it if any candidate in New Jersey has taken up the issue of eminent domain abuse at all for the coming elections. Let me know. Thank you.
Estelle Edwards
Riverhead, L.I., New York
vice chair
Suffolk County Libertarian Organization
[* I am the moderator of the Yahoo Group for the Suffolk Libertarian Organization, and anyone concerned about liberty is welcome to join. You don't have to wait for approval or even live in New York State!]