New Jersey Eminent Domain Law Blog

Public Advocate Ronald Chen has been pilloried for his support of eminent domain reform. The latest blast came from Senate Majority leader Bernard Kenny, Jr. (D-Hudson.), chairman of the Budget Committee, who took the opportunity during recent budget hearings to criticize not just the Public Advocate's budget, but Chen's eminent domain activism.  The Public advocate has filed amicus briefs in four eminent domain cases: two in Long Branch, one in Lodi, and the other case, Gallenthin Realty v. Paulsboro which the N.J. Supreme Court heard last month. Kenny accused Chen of trying to change the law through the courts instead of the legislature. But Chen spoke to the press after the meeting saying, "When the Supreme Court decides it's going to take a case on the definition of blight...if you don't get on that train, it's leaving without you."

Chen used his office properly to speak out on behalf of the people of New Jersey on this issue. Don't forget the "Average Joe" who is usually the victim in these cases does not have the money or the the lobbying force to match the municipalities, the builders, and the developers.

Kenny equates the use of eminent domain in connection with redevelopment as the "economic engine" for beneficial change, mostly in the form of increased tax revenue. Kenny conviently ignores the abuse of eminent domain that goes with the process. According to the Asbury Park Press (May 8), Kenny said, "Changing the burden of proof will paralyze the state and municipalities in being able to develop their properties in accordance with the economic conditions at the time."

Changing the burden of proof to the municipality to justify blight will level the playing field in light of the overwhelming presumption in the case law which favors the validity of municipal action. See Concerned Citizens of Princeton, Inc. v. Mayor and Council of the Borough of Princeton, 370 N.J. Super 429, 851A.2d 685 (App. Div. 2004),

"My feeling is that if the evidence is there and the area is blighted, this really should not be much of a burden on the municipality at all," Chen said. He also doesn't agree that property can be blighted just because the state believes it can come up with a more beneficial and productive use.

Chen has testified before the legislature on numerous times, suggesting reform of current eminent domain legislation where the process is transparent, compensation is made fair, and relocation in the same community is required.  But nearly two years after the Kelo decision, the New Jersey legislative process remains stalled.

The public has Ronald Chen as their advocate, and he's doing an excellent job under difficult circumstances, testifying before the legislature and presenting his arguments in the courts. He should be applauded for his efforts.  

Aren't Chen's priorities questionable? The real issue is how to value the properties: If "project enhancement" were put aside and the properties valued to Highest and Best Use - regardless of the existing use or the zoning. After all, the developer anticipates a change in use and zoning; why wouldn't reasonable owners anticipate the same conditions? After properties were valued to H&BU, even after a discount for "zoning change and reasonable probability," the developer would have to pay a fair price and the owners' could make reasonable decisions about moving on. It all boils down to an attempt by the developers to steal the land. That's where Chen should focus his efforts: keep the developers honest.

My town in New Jersey, is currently undertaking a reexamination of our master plan. A current draft of the reexamination report includes a section titled "Redevelopment of underutilized sites." This section notes that "the subcommittee has identified several underutilized sites within the Borough that may have potential for redevelopment and/or adaptive reuse." I'm wondering, how concerned the property owners of these sites should be ?

The property owners in the areas designated in the master plan revision for redevelopment should be concerned. They should monitor closely any further action by the planning board to have a planning expert study these properties with an eye toward designating them as "an area in need of redevelopment." This designation and its approval by the mayor and council would give rise to the municipality's right to acquire the properties through eminent domain under the Local Redevelopment Housing Law.