Eminent Domain and the Underwater Mortgage

A number of cities in New Jersey, including Irvington and Newark, are considering using the power of eminent domain to aid homeowners whose mortgages are underwater. A mortgage is underwater when its unpaid balance is greater than the property’s market value. The underlying mortgages, however, are not necessarily in default.

The concept of using eminent domain to assist homeowners in danger of foreclosure was first introduced in San Bernardino, California when the County explored the idea of addressing negative equity by using private equity to help current borrowers in foreclosure blighted neighborhoods. The controversial plan was for municipalities to use the power of eminent domain to circumvent mortgage contracts, acquire loans from bondholders, write them down, and give them back to the bondholders. The proposal was abandoned by the County and two of its cities because of the unquantifiable risk that it introduced to the market and the lack of public support. The level of risk involved, the possible cost of implementing such a plan, pushback from the mortgage industry, and the threat of serious litigation have proven significant impediments to cause a number of cities to reject the idea of using eminent domain as a cure-all to the woes of the housing market.

Officials of other cities still find the possibilities of the plan appealing in theory, if not in practice. 

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Eminent domain, special benefits, and beach replenishment

The New Jersey Supreme Court has granted Certification to the Borough of Harvey Cedars in the case of Harvey Cedars v. Karan (A. 120-11). At issue in the case is the longstanding policy in eminent domain cases that does not permit off-setting general benefits against damages that ensue from easement takings for dune replenishment and blocking ocean views from the beachfront homes. See Borough of Ridgewood v. Sreel Investment Co., 28 N.J. 121 (1958). In the Karan case, the Borough acquired an easement over one-third of Karans' property and constructed a 22-foot high dune which blocked the ocean views. The Borough, through its expert Donald Molliver, MAI, offered $300.00 as compensation for the taking and damages. Molliver opined that the damages were offset by the special benefit to the property for the project.

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US Supreme Court ruling on due process in wetlands regulation

Challenging a wetlands designation in eminent domain cases is often a key issue for property owners attempting to obtain just compensation for the acquisition of their property. While the decision of the Supreme Court  in Sackett v. EPA is not made in the context of eminent domain, the Court's findings with respect to the EPA could well be germane in cases that involve eminent domain.

Sackett v. U.S.Environmental Protection Agency
Supreme Court of the United States No. 10–1062.
Argued January 9, 2012—Decided March 21, 2012

by Winifred E. Campbell, Esq.

Last week the United States Supreme Court handed a decisive win to property owners battling to protect their due process rights against baseless environmental regulation. In Sackett v. EPA, the Sacketts were denied their due process rights when they attempted to challenge the Environmental Protection Agency’s (EPA) determination that the Sackett property was encumbered with wetlands. Download Sackett v. EPA.    

The Sacketts purchased a 0.63 acre lot in a residential, platted subdivision in Idaho intending to build a house. All permits were granted by the local municipality and gravel was laid in preparation for building the foundation of the home. Without warning, evidence, or explanation, the EPA issued the Sacketts a “compliance order,” demanding construction stop and the land be returned to its pre-gravel condition. According to their attorneys at the Pacific Legal Foundation, the Sacketts were told by the EPA that it controlled the land because the land is “wetlands.” Failure to comply with the EPA’s order racked up fines of $75,000 a day.

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House bill ends eminent domain for economic development

by Winifred E. Campbell, Esq.

The United States House of Representatives passed with bi-partisan support H.R. 1433, The Private Property Rights Protection Act, on February 29, 2012. The bill aims to bar the federal government from using eminent domain for economic development. The bill would also withhold federal development funding to states that take private property for economic development. The bill is now being considered by the Senate.

The proposed Private Property Rights Protection Act is in response to the 2005 U.S. Supreme Court decision in Kelo v. City of New London. In Kelo, the Court upheld the condemnation of private property for transfer to other private owners to support “economic development.” The Kelo decision was met with outrage across the country. Frequently, the use of condemnation for economic development benefits wealthy developers at the expense of the poor and politically weak.

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Fordham Law Eminent Domain Conference: Contrasting Interpretations of Blight in NJ and NY

By Janice Dooner Lynch, Esq.

On February 11, 2011, the Fordham Urban Law Journal presented a continuing legal education conference at the Fordham University School of Law entitled, “Taking New York: The Opportunities, Challenges, and Dangers posed by the Use of Eminent Domain in New York.” Many attorneys and non-attorneys from the eminent domain field spoke about various aspects of the challenges which have arisen in this area of the law in recent years.

One of the key issues discussed during the conference was the differing definitions of “blight” in each state, which is a major factor in determining whether a government may appropriate property by way of its eminent domain powers. Professor Lynn Blais of the University of Texas School of Law pointed out that while most states have enacted legislation limiting the use of eminent domain to take property for economic development or to be transferred to a private entity, such legislation has, at the same time, provided for an exception to this limitation in the case of “blight.” In other words, an eminent domain taking of property for non-public purposes can take place if a showing can be made that such a taking is necessary for the eradication of “blight” on the property. The following questions then arise: how is the concept of “blight” to be defined by the state legislature or constitution, and how is much judicial review of that definition can be exercised by the courts? The varying approaches to this issue by different states can be seen in the New York State Court of Appeals in Kaur v. New York State Urban Dev. Corp., 933 N.E.2d 721, 892 N.Y.S.2d 8 (2010), and the New Jersey Supreme Court in Gallenthin v. Paulsboro, 191 N.J. 344, 924 A.2d 447 (2007).

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New York and New Jersey need eminent domain reform

Fox Five News, Good Day New York segment, Eminent Domain Battle with Rosanna Scotto (May 21, 2010).

"In recent years there has been an increase in legal challenges to the law when 'blight' is used as the primary reason by the state for a takeover...'The eminent domain process is subject to abuse. Where the controversy comes in is in redevelopment projects under the Local Redevelopment Housing Law (in NJ) that says certain areas of a city are blighted,' Ward told co-host Rosanna Scotto."

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On the beach: SCOTUS, NJ Supremes hear eminent domain cases

Today the Supreme Court of the United States and the New Jersey Supreme Court heard oral arguments on similar issues in two different cases: Who has title to riparian land created by natural accretion of sand or a public works project to replenish beachfront property? In Stop the Beach Nourishment v. Florida, the issue is whether the legislation coupled with the Florida Supreme Court decision constitutes a judicial taking of private property without compensation; In City of Long Branch. v. Liu, property has already been taken, but the trial court ruled that Liu could not be compensated for the land created by beach replenishment. 

Beaches in many states are the recipients of oceanfront accretion as a result of beach replenishment projects. Most states, including Florida and New Jersey, set the property boundary at the mean high water line: The state owns the area between the mean high water line and the low water line. Up to this point, any natural or man-made accretion that changes the mean high water line belonged to the riparian owner. The state of Florida wants to make this additional land public land. The Florida Supreme Court, in a 5-2 decision, agreed. See SCOTUS Wiki for all the documents in this case and our prior blog post, "SCOTUS grants cert in beachfront renourishment case."

In order to rule in favor of the Florida property owners, at least 5 of the 8 justices hearing the case need to agree with the position of the property owners who are contesting the Forida legislation and the Florida Supreme Court decision. This would require an in depth review of Florida law in order to overrule the Florida Supreme Court -- a big step, considering the deference usually accorded state courts in interpreting state law. But the Florida property owners argue that the court below misinterpreted long standing Florida law with respect to the ownership of beachfront property. 

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A World War II Vet wins his eminent domain battle

"The Little Guy Wins' is a feature news segment by reporter Mary Murphy, who covered the Long Branch eminent domain story on WPIX Channel 11 last night. The video clip features Louis Anzalone, 92, who never gave up the fight to keep his home, even after his wife Lillian and other senior neighbors including Al Viviano, Mary LaConte, Anna DeFaria, and Carmen Vendetti passed away before their litigation ended. They were, to paraphrase Franklin Delano Roosevelt, a generation that had a rendevous with destiny. They fought for freedom, but they never imagined that they would fight to keep their homes. Through years of litigation, Anzalone, a World War II Navy veteran, epitomized the spirit of that greatest generation, living the words of Winston Churchill: "Never, never, never, never give up."

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City of Long Branch v. Anzalone eminent domain agreement

Below is the Asbury Park Press video of the court hearing on September 15, featuring the signing of the 12-page settlement agreement in City of Long Branch v. Anzalone. Later that evening,  the Long Branch City Council voted 4-1 to adopt a resolution on the settlement agreement.


Also, see blog post of September 15, Settlement ends eminent domain saga for Long Branch MTOTSA homeowners

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Settlement ends eminent domain saga for Long Branch MTOTSA homeowners

"To the outside world, my home may have been just wood and concrete, but to me, it is my whole existence...a little piece of heaven with my wife..." - Louis Anzalone, Long Branch, N.J. 

One year and seven days after his wife, Lillian, quietly slipped away on the porch of their beachfront home, Louis Anzalone, 92, and his neighbors on Marine Terrace, Ocean Terrace, and Seaview Avenue - MTOTSA - in Long Branch, N.J., settled their long-standing eminent domain battle with the city. Today in open court, in Freehold, most of the property owners signed releases, and attorneys for the city, developer, and property owners finalized a consent order, bringing closure to the case. Download the final order.

City of Long Branch v. Anzalone, and its companion cases, were reversed and remanded to the trial court in part on August 7, 2008. Today's settlement, which resulted from lengthy negotiations and mediations with Judge Thomas W. Cavenagh, dismisses the eminent domain complaints against all defendants. In addition, the city of Long Branch and the developer are paying aproximately 60 percent of the legal fees and costs of the defendants. The property owners are now free to continue to live in their homes, or to rebuild in compliance with the amended redevelopment plan. If they choose to rebuild, they can be designated as redevelopers and receive the same tax benefits as the designated developers did for Phase I of the Beachfront North project. This is a big win for the property owners and property rights advocates.

Tonight in a Special Meeting of the Long Branch City Council, resolutions memorializing the settlement agreement are on the agenda. Download the Long Branch Agenda here.

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MEDIA ADVISORY: Court hearing tomorrow could end eminent domain case for NJ homeowners in Long Branch


Tomorrow's court hearing could resolve long-standing eminent domain battle for homeowners in the MTOTSA neighborhood, Long Branch, N.J.  Pending resolution, homeowners and attorneys will speak to media after court hearing.

1:30p.m./Tuesday, September 15, 2009

Courtroom of Hon. Thomas W. Cavanagh
Hall of Records
One East Main Street
Freehold, New Jersey 07728

Scott Bullock, Senior Attorney, Institute for Justice
Jeff Rowes, Staff Attorney, Institute for Justice
Peter H. Wegener, Bathgate, Wegener & Wolf
William Ward, Carlin & Ward
Property Owners in the MTOTSA (Marine Terrace, Ocean Terrace, Seaview Avenue) neighborhood

On Tuesday, September 15, 2009, at 1:30 p.m., the long-running fight to protect the homes in the MTOTSA neighborhood of Long Branch, N.J., against eminent domain for private gain could come to end. An agreement will be discussed in the courtroom of Judge Thomas Cavenaugh, who has presided over discussions between the parties for the past several months.

The Institute for Justice—a public interest law firm based in Arlington, Va., that litigated the Kelo v. New London eminent domain case before the U.S. Supreme Court—represents the homeowners along with New Jersey eminent domain attorneys Peter Wegener of Bathgate Wegener & Wolf and William J. Ward of Carlin & Ward.

In August 2008, a three-judge panel of the New Jersey Appellate Division unanimously reversed and remanded the June 2006 decision of Superior Court Judge Lawrence Lawson, which had allowed Long Branch to condemn a charming seaside neighborhood known as MTOTSA for a luxury condominium development. (Read the opinion and our blog post of August 7, 2008, on City of Long Branch v. Anzalone. )

After the case was sent back to the trial court and the city announced that it was willing to drop the eminent domain actions, the parties began discussing how to resolve the remaining issues in the case. If the case resolves, attorneys along with MTOTSA property owners will speak with the media immediately after the hearing in the courtyard in front of the Hall of Records in downtown Freehold, New Jersey.

# # #


To arrange interviews with William J. Ward  or property owner Louis Anzalone, please contact Susan Ward at 973-377-3350, ext. 106 or 973-464-5669, evening/weekends.

To arrange interviews with the Institute for Justice, call John Kramer, vice president for communications, at 703-682-9320 ext. 205 or in the evening/weekend at 703-587-1992.

See links to relevant blog posts and court opinions.


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Eminent domain at the mean high water line

The New Jersey Supreme Court has granted certification to a second eminent domain case for the 2009-2010 term. The case is City of Long Branch v. Jui Yung Liu (A-0237-06T2). At the heart of this case is a question similar to those that are under consideration by the United States Supreme Court in the Florida case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Docket No. 08-1151. See previous blog post, SCOTUS grants cert in beachfront renourishment case (June 22, 2009).

According to Peter Wegener of Bathgate Wegner, who represents the property owner, the New Jersey Supreme Court has certified two questions on two of the points decided adverse to Liu by the court below:


1. The Lius' Property Extends to Mean High Water
2. The High Water Mark Delineates Ownership of Lands Along the Atlantic Ocean
4 [sic]. Artificial Changes to the Shoreline Inure to the Benefit of the
Littoral Owner Provided the Changes Were Not in Aid of Navigation and Were Not Implemented by the Littoral Owner Himself
5 [sic]. The Motion Judge Incorrectly Interpreted The Law To Determine That The State of New Jersey Owned The Artificially Created Property [Slip opinion, at p.4]

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SCOTUS grants cert in beachfront renourishment case

On June 15, 2009, the United States Supreme Court granted certiorari in the case of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, Docket No. 08-1151. This is the Court’s first sojourn into the takings issue since June 2005, when the court issued three opinions in the Kelo, Lingle and San Remo Hotel cases. See post in the  ABA Journal online, "Surprise! Supreme Court grants cert in beach taking case," and related links.

This is a regulatory takings case where the Florida Supreme Court, in a 5-2 decision, rejected the beachfront property owners’ challenge to a state law authorizing beach replenishment through creation of sand dunes and asserting public ownership to the created land area. The Florida Supreme Court concluded that the law did not constitute a compensable taking. See Robert H. Thomas' post at Inverse Condemnation blog:

In Walton County v. Stop the Beach Renourishment, Inc., 998 So.2d 1102 (Fla. Sep. 29, 2008), the Florida Supreme Court held that a state statute which prohibits "beach renourishment" without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean. The cert petition presents these questions:

The Florida Supreme Court invoked "nonexistent rules of state substantive law" to reverse 100 years of uniform holdings that littoral rights are constitutionally protected. In doing so, did the Florida Court's decision cause a "judicial taking" proscribed by the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that eliminates constitutional littoral rights and replaces them with statutory rights a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

Is the Florida Supreme Court's approval of a legislative scheme that allows an executive agency to unilaterally modify a private landowner's property boundary without a judicial hearing or the payment of just compensation a violation of the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution?

The case has interesting implications in many states, and specifically New Jersey,  where the Army Corps of Engineers, operating through local municipalities, is seeking to accomplish beach replenishment along the entire length of Long Beach Island. See our January 29 post, "Eminent domain in Harvey Cedars."

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Long Branch eminent domain settlement talks continue

Anzalone house

Settlement discussions in the Long Branch eminent domain cases began on December 22 before Judge Thomas W. Cavanagh, Jr., who was designated by Monmouth County Assignment Judge Lawrence Lawson to conference legal counsel and concerned parties in City of Long Branch vs. Anzalone. The case was remanded to Judge Lawson by the Appellate Division (See the opinion issued August 7, 2008). Subsequent cross petitions for certification filed with the Supreme Court by the City of Long Branch and the property owners were denied. A key player in the settlement discussions, which will continue on January 15, will be the designated developer - a joint venture of Hovnanian subsidiary Matzell and Mumford and the Applied Companies of Hoboken.

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Lillian Anzalone, eminent domain defendant

Lillian and Louis Anzalone

Lillian Anzalone died at home this morning. She was 91. Mrs. Anzalone was born in Newark on February 10, 1917. She was a buyer of women’s clothes in New York before she married Louis Anzalone in 1954.

Together, the Anzalones and their son, Thomas, lived at 32 Ocean Terrace, Long Branch.Their house stands at the epicenter of the MTOTSA neighborhood’s eminent domain fight. It was the first home the Anzalones bought and the only one they ever owned. Mrs. Anzalone, who suffered from congestive heart failure and other health problems, attended the oral arguments in the appellate division in May. The family was elated when the court reversed the blight determination last month. See the Star Ledger video filmed on August 8.

Mrs. Anzalone is the third elderly home owner who protested, fought and advocated for property rights, but ultimately succumbed to illness before obtaining closure in the Long Branch eminent domain cases. The other MTOTSA neighbors who died were Al Viviano and Anna DeFaria. Mrs. Anzalone will be missed by her husband of 54 years, her son, and all her neighbors, who were united in the battle to keep their homes. The home owners are in the process of petitioning the New Jersey Supreme Court to dismiss the condemnation complaints.

Viewing will take place from 2-4 p.m. and 7-9 p.m. on Friday September 12 at Megaro Memorial Home at 503 Union Avenue, Belleville. A funeral mass will be held Saturday morning, September 13, at St. Lucy's R.C. Church in Newark.



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Long Branch property owners cross-petition NJ Supreme Court in eminent domain cases

William J. Ward, Esq. of Carlin & Ward; Peter H. Wegener of Bathgate Wegener & Wolf and Scott Bullock of the Institute of Justice, representing the Long Branch property owners, have cross-petitioned the New Jersey Supreme Court today in the City of Long Branch v. Anzalone and its companion case, City of Long Branch v. Brower et al. Long Branch petitioned the New Jersey Supreme Court to grant certification to review the August 7 decision of the Appellate Division. The city's notice of petition was served on the defendants on August 26.

The cross petition is for the limited purpose of affirming the Appellate Division’s finding that “there was not substantial evidence of blight," and dismissing the condemnation complaints outright. See R. 2:12-3(b). The theory for dismissal of the complaints is simple: Since there is no evidence of blight under Article VIII, Section III, paragraph 1 of the New Jersey Constitution and the Local Redevelopment Housing Law, N.J.S.A. 40A:12A-5, there can be no eminent domain action sustained. There simply is no support in the statute or redevelopment law for the trial court to conduct additional hearings on blight in these cases.

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Long Branch eminent domain case reversed and remanded

In a unanimous 85-page opinion, the Appellate Division today reversed the decision of Judge Lawson and remanded the controversial eminent domain case, City of Long Branch v. Anzalone, for a plenary hearing. The court agreed with the arguments made by the appellants that the record was devoid of the requisite substantial evidence of blight required by N.J.S.A. 40A:12A-5 and the New Jersey Constitution, Article 8, paragraph 3:

We agree with appellants that, in light of the principles laid down in Gallenthin, the City did not find actual blight under any subsection of N.J.S.A. 40A:12A-5, that the record lacked substantial evidence that could have supported the New Jersey Constitution's standard for finding blight, and that the absence of substantial evidence of blight compels reversal.

Although the Appellate Division left the door open for the city to supplement the record to prove blight, this will be highly problematic, and it is doubtful they will be able to produce a qualified planning expert who will reach that conclusion. An additional problem for Long Branch will be the recent decision of Judge Lawson in the prerogative writ suit, Park Steel v. Borough of Neptune City, in which he relied substantially on the Gallenthin v. Borough of Paulsboro, 191 N.J. 344 (2007) case and the ERETC v. City of Perth Amboy, 381 N.J. Super. 268 (App. Div. 2005) case. In the Park Steel case, which was decided on May 7 and released July 7, 2008, Judge Lawson found that Neptune did not meet the test to provide substantial credible evidence of blight.  Download the Appellate opinion in City of Long Branch v Anzalone.

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Appealing Long Branch

The Appellate Division heard three hours of arguments from the assembled attorneys representing Long Branch property owners and the city of Long Branch. The argument before the media and a standing room crowd of spectators included the property owners, their families, and interested parties to the eminent domain issues. This case is the most important eminent domain case in the appellate pipeline, and could very well go to the New Jersey Supreme Court, depending on the outcome of the Appellate decision, which is expected in the early fall.

Download today's coverage in The Asbury Park Press and The Star-Ledger

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MEDIA ADVISORY: City of Long Branch v. Anzalone

MEDIA ADVISORY: City of Long Branch v. Anzalone

The Appellate Division of the Superior Court will hear oral arguments tomorrow in two eminent domain cases, City of Long Branch v. Anzalone and City of Long Branch v. Brower, on the 5th floor of the Richard J. Hughes Justice Complex, 25 Market Street, Trenton, New Jersey. The arguments are before Judges Joseph Lisa, Richard Newman, and Paulette Sapp-Peterson (Panel G). The Appellate Division has issued a revised media advisory.

Louis and Lillian Anzalone, who in their nineties are the eldest residents of the MTOTSA (Marine Terrace, Ocean Terrace, Seaview Avenue) neighborhood, are represented by William J. Ward of the law firm of Carlin & Ward in Florham Park and Brian Weeks of the Office of the Public Advocate, amicus in the case. The bulk of the MTOTSA residents are represented by Peter Wegener of Bathgate, Wegener, & Wolf in Lakewood and Scott Bullock and Jeff Rowes, attorneys with the Institute for Justice in Arlington, Virginia. The IJ argued the Kelo case before the U.S. Supreme Court.

The homeowners appealed the June 22, 2006 decision of Monmouth County Assignment Judge Lawrence Lawson, who ruled that the property owners were not entitled to a hearing or discovery on the “right to take” and dismissed the owners objections to the appointment of condemnation commissioners -- a final judgment on the right to take issue. This decision, issued a day before the first anniversary of the Kelo case, would allow the condemnation suits regarding the various properties to go forward. The Anzalones obtained a stay at the inception of the appeal.

The chief issues to be addressed by the court will be:
I. Conflicts of Interest and the Local Government Ethics Law as it applies to municipal officials and their legal representatives
II. Blight and its definition in light of the New Jersey Supreme Court’s decision in Gallenthin v. Borough of Paulsboro
III. Notice and Due Process regarding the redevelopment plan where the status of the properties in the neighborhood was changed from residential infill to properties to be acquired by condemnation.

The property owners seek a reversal of Judge Lawson's 2006 decision. In light of recent case law, attorneys representing the property owners will ask the court to dismiss the condemnation cases outright. At the very least, the matter should be remanded to the trial court for discovery and a full evidentiary hearing.

The Anzalones will be in court tomorrow for the proceedings. Louis Anzalone, a veteran of World War II and a former engineer with Lionel Trains, has always maintained that he wanted to stay in his home. "I don't want their money," he told the Public Advocate. "I want my house. From my back porch, I have a panorama of the whole ocean. It's heaven on earth."  

A rally is scheduled for 8:20 a.m. in front of the Hughes Justice Complex. 

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'Show me' eminent domain in Missouri

In a significant case, widely anticipated by the eminent domain bar, the Missouri Supreme Court overturned a lower court ruling which would have blocked communities from using eminent domain for private development supported by tax concessions on March 18, 2008. Meanwhile, the city has attacked the defendants in the press for defending themselves in the courts when the city condemned their property, as reported by Timothy Sandefur of the Pacific Legal Foundation (PLF). On April 1, 2008, The Pacific Legal Foundation filed a motion for reconsideration with the Missouri Supreme Court.

The issue in the case was whether a provision in the Missouri Constitution that allows so- called charter cities to use eminent domain also prevents non-charter cities from taking private property.  A charter city is defined as a municipalilty which had a minimum of 5,000 people at the time of
its incorporation and whose residents approved a local constitution.

The case, City of Arnold v. Tourkakis, was brought to the court by Dr. Homer Tourkakis, a dentist who practices in the city of Arnold, Missouri. Tourkakis challenged Arnold’s attempt to seize his property through eminent domain proceedings. In a 6-1 decision written by the Hon. Mary Rhodes Russell, the Supreme Court ruled in favor of Arnold, saying the state constitution gives the legislature the power to allow cities to use the power of eminent domain for redevelopment purposes. The court agreed with Arnold, and reversed the lower court.

The Supreme Court said that condemnation is authorized to Arnold for redevelopment of blighted areas under the Tax Increment Financing Act (TIF). The lower court sitting in Jefferson County had distinguished Arnold from constitutionally charter cities, or third-class cities,  with regards to the use of eminent domain to achieve economic development.  There are 37 charter cities in Missouri.

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Fencing with eminent domain: All hat on the Texas border

"They're going to put up some fence, and it's going to be in Eagle Pass just to make an example of the mouthy mayor of Eagle Pass." – Mayor Chad Foster, as quoted in the Houston Chronicle.

The Bush administration’s decision to move forward with condemnation to acquire the necessary easements for the construction of the border fence makes very little sense. "I think the way that the Bush administration is going about this, filing eminent domain actions against landowners and municipalities makes no sense," Senator Hillary Clinton said in a recent debate with Senator Obama held at the University of Texas in Austin.

In any taking such as this – a partial taking – the affected property owners will have a claim for the value of the land taken as well as damage to the remainder. The Texas Constitution provides compensation for any property taken or damaged as a result of an acquisition for public use in Article I, Paragraph 17:

No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof.

The border fence project certainly falls within that provision and the damages to the remainder will in all likelihood be a larger issue than the taking itself. We posted earlier that the DHS wanted access to the properties for up to 6 months and the right to remove structures in the way of surveyors and engineers, and each landowner would receive $100 and be reimbursed for any damage to the property. See Don't fence me in with eminent domain (January 24, 2008).

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Don't fence me in with eminent domain

"Even in the most egregious eminent domain cases, the party whose land is being taken is given his or her day in court. The people of Texas should be outraged by the sneaky, underhanded methods used by the Department of Homeland Security....Informing the city after the judge ruled that their land is already taken is not the Texan or American way of justice." -- Monica Weisberg-Stewart, co-chair of the Texas Border Coalition Immigration Committee, Caller Times

The line most-quoted in Robert Frost's poem Mending Wall reads, "Good fences make good neighbors." But it is the first line that speaks from the deep heart's core and tells us, "Something there is that doesn't love a wall."  Something indeed. History demonstrates that border walls and fences for the most part don’t work. The Berlin Wall came down when the U.S.S.R. lost power during the Reagan administration. The Great Wall of China did not keep out the Mongolian hordes. This week we have seen the Israeli wall around Gaza and along the Egyptian border breached by Hamas, through a few well-placed land mines, in order to allow Palestinans access to much needed supplies. According to the Associated Press, Egypt has not yet indicated how it plans to reseal the border, though it began positioning armored vehicles Thursday along sections of the breached, seven-mile frontier.

Onward to the vast Mexican-U.S. border: President Bush and Homeland Security head Michael Chertoff are committed to build 370 miles of the proposed 670-mile border fence through Texas, California, and Arizona by the end of 2008. Bush signed the Secure Fence Act of 2006 in October 2006, giving the Secretary of Homeland Security 18 months to achieve and maintain operational control over the borders of the United States. The act also provides for the construction of fencing and security improvements along the border area from the Pacific Ocean to the Gult of Mexico. There was an amendment to the act (inserted into a $555 billion spending bill signed into law the day after Christmas 2007 by President Bush). As reported in the Houston Chronicle on January 12, the measure repealed parts of the 2006 law.  But Senator Kay Hutchinson, who was accused by two congressmen of repealing the mandate to build the fence, said the new law, SA 2466, requires govenment to consult with landowners and elected officials as it moves to build 130 miles of fence in Texas.

However, the government will use eminent domain against property owners opposing acquisition and use of their land for this purpose. Municipalities and property owners affected by the fence question the efficacy of the proposed fence and the cost. As reported in the Rio Grande Guardian yesterday, Laredo Mayor Raul Salinas said, "The fence will not work, so why squander away taxpayer's dollars? I think we have to think about comprehensive immigration reform legislation and think about the guest worker program as alternatives to the wall."

According to the Guardian, Salinas was referring to the recent lawsuit where the the federal government won its lawsuit against the city of Eagle Pass to gain access to city-owned land. On Monday, U.S. District Judge Alia Moses Ludlom ordered the city of Eagle Pass, located on the Texas border 100 miles southwest of San Antonio to surrender 233 acres of municipal land. “It seems a little heavy handed,” said Eagle Pass Mayor Chad Foster, who also heads The Texas Border Coalition. The group of mayors, city officials, and business leaders have complained they had not had enough time and opportunity to comment regarding the effect of the fence on their communities, according to a report issued on January 16 by the Associated Press. Instead, Eagle Pass was sued for access to municipal land and blindsided when the judge's ruling was decided within hours on the very same day, before the city could challenge the lawsuit. "Giving the other side notice sounds pretty basic to me. The government is not even following what our justice system asks for," said San Juan Mayor Juanita Sanchez.

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A Mosque, Open Space and Eminent Domain

United States District Court Judge Peter G. Sheridan issued an opinion on November 29 on a motion to amend the complaint in Albanian Associated Fund v. Township of Wayne. This case involves eminent domain, open space, and land use regulations in the context of proposed religious use, the building of a Muslim mosque on 11 acres in Wayne Township, New Jersey. Therefore, the Religious Land Use and Institutionalized Persons Act  of 2000 (RLUIPA) plays into the dispute as well. See 42 USC § 2000 cc (a) (1):

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

There is a real fear among religious organizations that RLUIPA may not apply because it does not specifically mention the words “eminent domain.” Download the decisions in  St. Johns United Church of Christ v. City of Chicago  (U.S. Court of Appeals for the Seventh Circuit,2007) and Faith Temple Church v. Town of Brighton, 405 F. Supp. 250 (W.D.N.Y. 2005).

In Judge Sheridan's November 29 opinion, the court permitted the plaintiff to amend its complaint on eight counts and denied amendment on a new ninth count. The ninth count alleged violations of New Jersey’s Municipal Land Use Law (MLUL) which is the comprehensive statute governing land use applications and proceedings before zoning boards and boards of adjustment in the state (N.J.S.A. 40:55 D-1 et seq). The court barred the amendment based on the comprehensive system established under the MLUL and the N.J. Court Rules 4:69-1, which established a comprehensive non-jury procedure for plaintiffs contesting a municipal action.

The procedure established in the law and the court rules is consistent with the New Jersey Constitution Article IV § 6, Paragraph 2, which mandates uniform policies and procedures that any municipality must follow. Therefore, the court held the proper venue for plaintiff’s count 9 claim was before the New Jersey Superior Court in an action in lieu of prerogative writ.

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RLUIPA, Redevelopment, and Eminent Domain

The decision in Lighthouse Institute for Evangelism v. City of Long Branch, rendered by the United States Court of Appeals for the Third Circuit on November 27, has national implications for religious use, zoning regulations, and eminent domain. In its precedent setting 96-page opinion, the Third Circuit ruled 2-1 in favor of the City of Long Branch against Reverend Kevin Brown and the Lighthouse Institute for Evangelism in their attempt to establish a church at 162 Broadway within the Broadway Corridor Redevelopment area. However, the court remanded the case to Judge William Walls in the U.S. District Court for further findings on the plaintiff's challenge to the C-1 ordinance, the zoning for the subject property prior to the adoption of the redevelopment ordinance and plan, under RLUIPA's Equal Terms provision. The court was unanimous that the C-1 ordinance violated RLUIPA. This will entitle the plaintiffs to damages, counsel fees, and costs. Read the opinion here.

The federal statute at the heart of the question is the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the most recent congressional effort to protect religious exercise from discrimination through land use regulations. The Equal Terms provision states:

No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.

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Do you need a high I.Q. to understand eminent domain law?

After reading the list of Best Law Blogs that made the top ten in the 2007 Weblog Awards, we noted that the Volokh Conspiracy (Ranked #3 in the poll) posts the reading level of their blog at Junior High School level. So we were curious to see what our reading level is, and after testing it three times....Voila! It appears that you need to be a genius to understand it. Congratulations, readers! We always knew you were among the best and brightest.

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Eminent Domain, Fifth Amendment Property Rights, and Government Retaliation

On June 25, 2007, the Supreme Court of the United States decided Wilkie v. Robbins (06-219.) The case was barely reported in the media but was anticipated by property rights activists since it was the first significant property rights case decided by the Supreme Court since Kelo v. City of New London. See blog post of April 1, 2007, on government retaliation and private property rights.

It is clear from the colloquy with counsel during oral argument and the concurring opinions of Justices Thomas and Scalia that the Court had no intention of expanding the Bivens doctrine to include alleged violations of a plaintiff’s Fifth Amendment rights. But what makes Wilkie particularly troubling is the clear pattern of harassment against Robbins by the BLM over the course of five years. While the alleged violations by BLM employees against Robbins have administrative and state court remedies, the problem remains that these could only be pursued piecemeal, at the great expense of time and money by the property owner. BLM, on the other hand, had the full weight and resources of the federal government on their side. The majority grounded their opinion in part on the imaginary horribles: i.e., a Bivens claim would give rise to a flood of similar cases in the district courts, and the Court felt there were ample options available to remedy the alleged wrongs. Moreover, the Court suggested that it was the role of the Legislature to fashion a remedy for Robbins rather than the role of this Court to expand the Bivens doctrine.

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Junior Statesmen hear eminent domain talk


Today at the Statehouse Annex in Trenton, New Jersey high school students, who participated in the New Jersey Symposium on Leadership and Politics hosted by the Junior Statesmen Foundation and Princeton University, heard a lecture on eminent domain among other topics.

The symposium is a unique forum where students hear speakers at the highest level of state government and have the opportunity to ask questions of these officials in an informal setting. The students heard from members of Governor Corzine's cabinet and the Honorable William Pascrell III from the U.S. House of Representatives. It was an honor for me to participate as a guest lecturer and to have the opportunity to address a group of elite students, all of whom will be starting their senior year in the fall. Some of the group indicated interest in pursuing a career in law and most were interested in politics and governance at the state level. 

The students posed questions that demonstrate their awareness of the eminent domain issue and the controversy surrounding it. They were especially interested in the Kelo case and eminent domain reform and the pending changes to the current statutes that are under consideration by the Legislature. They asked questions about the eminent domain process and were concerned about property owner rights to compensation and relocation assistance. Democracy is not a spectator sport  -  that's the tagline on the Junior Statesmen Foundation web site. This calls to mind another quotation: "The price of democracy is eternal vigilance."  Those are the words of one of our founding fathers, Thomas Jefferson.  Based on my experience with this group of young people today, our participatory democracy is in good hands.

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Eminent Domain Electrical Power Grab

Mid Atlantic Corridor

"Our goal is really quite simple: to keep the power flowing to all Americans with sufficient reliability. And so, each draft Corridor was designed to include both areas where significant congestion problems or constraints exist and areas where there is a substantial amount of existing underutilized capacity as well as the potential for development of renewable energy generation – a so-called “source-and-sink” approach. In other words, these Corridors are meant to facilitate the process of connecting places that need relief with places that have the potential to supply more power. And this work cannot happen soon enough." -- Remarks as Prepared for Energy Secretary Samuel Bodman, First Annual Grid Week Conference, Washington, D.C.

Looking at the map above, it's clear that all of New Jersey falls into a "power bottleneck" where the Department of Energy (DOE) claims new electrical lines are critical to support the current grid. And significant portions of Southern California  are also part of the "National Interest Electric Transmission Corridor" -- areas the federal government deem stressed. The DOE can use eminent domain for its energy projects according to the Energy Policy Act of 2005. According to a DOE press release:

Within a National Corridor, transmission proposals could potentially be reviewed by the Federal Energy Regulatory Commission (FERC), which would have siting authority supplementing existing state authority. This would mean if an applicant does not receive approval from a State to site a proposed new transmission project within a National Corridor, the FERC may consider whether to issue a permit and to authorize construction. In the event of a FERC siting proceeding, the FERC must conduct a review under the National Environmental Policy Act, which would include analysis of alternative routes for that project, including route realignments necessary to avoid adverse effects on the environment, landowners, and local communities.A federal permit could empower a permit holder to exercise the right of eminent domain to acquire necessary property rights to build a transmission project. That authority could only be exercised if the developer could not acquire the property by negotiation, and even then, the authority would not apply to property owned by the United States or a State, such as national or state parks.

The DOE issued a draft proposal which designated the 21 counties that comprise New Jersey as part of the plan. In addition, the Mid-Atlantic National Corridor, pictured above, consists of Delaware, the District of Columbia, some parts of Ohio, West Virginia, Virginia, Maryland, Pennsylvania, and New York. A public hearing to discuss the Mid-Atlantic Corridor is scheduled for May 23, 2007, in New York City.

Update - May 8, 2007

DOE Announces Additional Public Comment Meetings for Draft National Corridor Designations WASHINGTON, DC – The U.S. Department of Energy (DOE) today announced that it will hold four additional public meetings for the two draft National Interest Electric Transmission Corridors (National Corridors) during the 60-day public comment period, which will close on July 6, 2007. The four additional meetings will be held in June in: Phoenix, Arizona; Las Vegas, Nevada; Pittsburgh, Pennsylvania; and Rochester, New York. Dates and locations will be published in the Federal Register in the coming days. DOE previously announced it would host three public meetings at the following locations: Arlington, Virginia on May 15, 2007; San Diego, California on May 17, 2007; and New York, New York on May 23, 2007.

To stay informed and comment on the plans, go the link at the  National Interest Electric Transmission Corridors and Congestion Study.

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Eminent Domain: Won't you be my neighbor?

Something that was once so safe, the place you ran to when afraid or tired, can be taken
away. Just like that — with a form letter, dressed up as junk mail. But the people on these
two city blocks in Van Nuys have more to lose: One another. Community. 
Marcus Villatoro, Los Angeles Times

It's a beautiful day in this neighborhood…or is it? Have you noticed? It’s not exactly Mr. Roger’s neighborhood anymore. Neighborhoods continue to be shocked by the use or threat of eminent domain, the determination of blight, and the politics of site selections. This is a nationwide problem.

It's a problem in Van Nuys, California, where Marcus Villatoro's house may be condemned along with two other blocks in his neighborhood to build a school:

We will sell "voluntarily" to the district or get involuntarily "condemned," unless the plan changes. My interpretation: Not only can the government take my land without my permission, it can also set the price. And here, between the little streets of Tobias and Willis, Hart and Bassett, it can bulldoze a community that's taken decades to build.

It's a problem in New Orleans, where the gutting of homes has proceeded under the Good Neighbor Plan.  The plan calls for a "neighborhood blitz" whereby representatives of  the Mayor’s Office, the Good Neighbor Plan Task Force, and neighborhood volunteers will walk their neighborhoods to identify properties that are not in compliance with the City’s Ordinance. The so-called "gutting law" was an ordinance passed August 25, 2006, determining procedures that identify whether a nuisance property should be demolished, determined to be blighted, or determined to have been abated. These procedures begin with a notice sent to the last known address for the property owner. Of course, this is ludicrous when the property owner has been displaced and moved out of state in the aftermath of Hurricanes Katrina and Rita. See our post of August 27, 2006, on the August 29 "eminent domain" deadline. 

Councilwoman Shelley Midura told The Times Picayune on Good Friday, "The property rights of people who are doing everything to get back are not being respected." Brandon Darby, director of Common Ground, said that the Good Neighbor program will "result in a land grab against low-income people of color."

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SCOTUS Eminent Domain: 5th Amendment and fighting government retaliation in Wilkie v. Robbins

Robbins Feb 2000 Northern Wyoming Daily NewsIt’s hard to imagine what else property rights might mean, other than that an owner can refuse the government’s demands without fear of reprisal. The defining characteristic of property is that it insulates us from others — creating a locus of security, privacy, and autonomy. Official retaliation for the assertion of property rights violates their very essence by piercing that shield and striking at the independence that private property protects. - R.S. Radford and Timothy Sandefur 


The decision in the United States Supreme Court case Wilkie v. Robbins has the potential to be more important and far reaching than the Court's decision in Kelo v. New London (June 23, 2005). The Court heard oral argument in the case on Monday March 19 to consider three questions:

  1. Whether government officials acting pursuant to their regulatory authority can be guilty under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961 et seq., of the predicate act of extortion under color of official right for attempting to obtain property for the sole benefit of the government and, if so, whether that statutory prohibition was clearly established.
  2. Whether respondent's Bivens claim based on excercise of his alleged Fifth Amendment rights is precluded by the availability of judicial review under the Administrative Procedure Act, 5 U.S.C. 701 et seq., or other statutes for the kind of administrative actions on which his claim is based.
  3. Whether the Fifth Amendment protects against retaliation for exercising a "right to exclude" the government from one's property outside the eminent domain process and, if so, whether that Fifth Amendment right was clearly established.

The case involves Harvey Frank Robbins, a Wyoming rancher, who purchased his property in 1993 not knowing that the prior owner had negotiated an access easement with the Bureau of Land Management (BLM). The BLM agents never recorded the easement, so when the Bureau contacted Robbins ordering him to sign over the easement, he refused. This precipitated a 14-year battle between Robbins and the BLM. They gave him a "hardball education" by canceling his right of way over adjoining government land, denying him permits, citing him for minor infractions, and bringing him up on charges of interfering with federal agents doing their duties. He was acquitted of these accusations by a jury. After all this bullying, Robbins sued the agents in federal court for violating his constitutional rights to use, control and enjoy his property, and for trampling his due-process rights. The 10th Circuit Court of Appeals decision affirmed for Robbins on the merits.  The government appealed.

The critical issue for Robbins and other property owners asserting their 5th amendment rights is whether they can do so without fear of retaliation by government officials. Many property owners affected by eminent domain are reluctant to speak out, fearing government retaliation, which may come in the form of code enforcement, health and safety inspections -- all done with an objective to force them to give up their property rights for redevelopment before, or even resisting, the eminent domain process. We will monitoring developments in this case and will report immediately regarding the decision of the United States Supreme Court.

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Eminent Domain in Utah and India: Letting the people decide

by Priya Prakash Royal

One problem with the power of eminent domain is that the government and not the public or the free market determines both “public use” and “just compensation.”

Utah, typically non-conformist in the legal arena, has once again taken the road less traveled. And it may have borrowed one idea from a system recently developed in India. Yesterday Business Week reported that Utah, one of the first states to rein in the use of eminent domain, has proposed legislation to allow a redevelopment authority to condemn property. But House Bill 365 would also allow the community to determine which takings qualify as being in the public's interest:

It requires 80 percent of those who live in a proposed redevelopment project area to sign a petition saying they want the land condemned. It would also require a two-thirds vote of a city's redevelopment authority board to approve the condemnation.

India, the world’s largest democracy, may follow suit in launching this concept. Swaminathan S. Anklesaria Aiyar, columnist for the Times of India, recommends several changes in India’s land acquisition laws, including one which empowers the farmers:

The new land law should provide for state governments or corporations to negotiate acquisition proposals with farmers, and then let the farmers vote on the deal. If a large majority--it could be two-thirds or three-quarters--vote in favour of selling, this should be binding on the minority. In this scheme, the final decision will lie not with the state government or corporation, but with the community of farmers. It will constitute community-led acquisition. It will respect both the property rights and dignity of farmers, and make them full partners in industrialisation. 

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Holiday Greetings!

People of Darfur (C) Tyler Beckelman

This holiday season and in the coming year,

Let us practice the change we wish to see in the world.

A donation in honor of our clients, colleagues, and friends was made to Doctors without Borders for their work with the refugees of Darfur.

Refugees are endemic throughout the world. While we do not usually cover international news, this time of the year it is appropriate to consider the freedoms that we take for granted and the terrible needs of others. The genocide and the displacement of the people of Darfur  call us to action.

The abject failure of our governmental agencies to function during a time of national crisis in the Gulf Coast states during Hurricanes Katrina and Rita last year was another example of a disaster that rendered many homeless.

Perhaps you do not see the thread that connects refugees of Darfur to displaced people of New Orleans to citizens of Bound Brook, New Jersey, who have lived in an area designated "in need of redevelopment" since 1999 and the floods of Hurricane Andrew.  One crisis is international, one is national, and one remains in our own backyard. The proportions may be weighed, but the degrees of separation are no greater than our awareness.

We have a choice: We can ignore the plight of thousands in the world, or we can support organizations that benefit situations we cannot change. We can create displacement through misuse of eminent domain and redevelopment laws that threaten homes and businesses, or we can change the federal and state laws.

Let us dedicate ourselves in the new year to practicing a greater concern for humanity in our personal actions and our laws.  President John F. Kennedy said, "Of those to whom much is given, much is required." And Mahatma Gandhi said, "Be the change you wish to see in the world."

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Eminent Domain: November 7 Election Update

“We emphasize that nothing in our opinion precludes any state from placing further restrictions on it’s exercise of the takings power.” – Justice John Paul Stevens, writing for the majority in Kelo v. City of New London

Thirteen states had ballot questions regarding post-Kelo eminent domain reform, a few with initiatives that included regulatory takings. The coupling of eminent domain reform with regulatory takings, was in our view, problematic. See our blog post of September 27.  Also see Volokh Conspiracy Blog post of November 8 on this issue.  Three out of four states, California, Idaho, and Washington rejected eminent domain reform coupled with regulatory takings. The only state to pass such an initiative was Arizona.

Ten states passed eminent domain measures protecting property owners from government takings of private property for economic development purposes. See the National Conference of State Legislatures web site:

Property Rights Measures on the 2006 Ballot


Measure #

Topic Area

Type a

CA/S b



Prop. 207

Eminent domain & regulatory takings



Pass (65.3%)


Prop. 90

Eminent domain & regulatory takings



Fail (48.0%)


Amendment 8

Eminent domain



Pass (69%)


Amendment 1

Eminent domain



Pass (82.4%)


Prop. 2

Eminent domain & regulatory takings



Fail (26%)


Amendment 5 (c)

Eminent domain



Pass (55% - final)


Proposal 06-4

Eminent domain



Pass (84.3%)


Question 2

Eminent domain



Pass (63%)

New Hampshire

Question 1

Eminent domain



Pass (86%)

North Dakota

Measure 2

Eminent domain



Pass (67.7%)


Measure 39

Eminent domain



Pass (67.1%)

South Carolina

Amendment 5

Eminent domain



Pass (84.3%)


Initiative 933

Regulatory takings



Fail (42.4%)

a)  Type: L = legislative referendum

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Eminent Domain: Can small town America survive?

Can small town America survive? What is responsible development? William J. Ward, author of the New Jersey Eminent Domain Law Blog, will be a guest speaker following the movie screening of  Two Square Miles  at 2 p.m. on Sunday, October 22, 2006, at the Baronet Theatre in Asbury Park. 

Two Square Miles is a documentary about Hudson, New York, a small town on the Hudson River, and its citizens'  fight to preserve the town's architectural heritage and character  in the face of a proposed multinational coal-fired cement plant.:

The questions that exist about the future of Hudson are similar to the concerns of citizens in towns and cities across America. How is the global economy affecting our communities? Can a traditional small town main street with mom and pop stores still be viable with the 21st Century competition of big-box stores and consolidation? Can goals of environmental conservation and economic development co-exist?

How can citizens and activists concerned about the direction of their communities be involved in the democratic process, and can idealistic goals drive real political change? And, in the wake of divisive political campaigns, can new and productive political alliances that serve the common good be forged?

Barbara Ettinger, the director of the film, along with Councilman Jim Keady of Asbury Park, Barbara and Patricia Lesinski of Citizens for Wesley Lake, and Jamie Nieradka of Ocean Grove will be joining the discussion about eminent domain, housing density, preservation, environmental issues, and the need for responsible development. 

The event is free and open to the public at the Baronet Theatre, 205 4th Avenue, Asbury Park, New Jersey. (732-807-3317)  Download the flyer "Movie Screening & Community Discussion for Responsible Development in Our Shore Communities."

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Eminent Domain: Private Property Rights Implementation Act of 2006

While U.S. Senate failed to act on H.R. 4128  companion bill or  S. 3873, recently proposed by Senator James Inhofe,  Congress has a lame duck session (November 13-November 22) - a final window of opportunity to vote upon these companion bills. Concerned citizens should take advantage of this and contact their senators prior to November 13.

However, on Friday September 29, the U.S. House of Representatives approved the Private Property RIghts Implementation Act of 2006, H.R. 4772 by 231 to 181 votes.  Only Scott Garrett (R-NJ-5) voted to approve the bill; All other New Jersey representatives voted "nay."

According to a Reuters report which appeared in theWashington Post,  this bill would allow "homeowners and developers to bypass state and local courts to make federal constitutional claims to fight takings by eminent domain or to wage disputes over property use restrictions." The bill is sponsored by Representative Steve Chabot (R-Ohio), who believes that homeowners might avoid costly and lengthy state court battles, pass GO, and head directly to the federal court system on constiutional issues. The legislation purports to level the playing field for small and middle class property owners and retirees, as well as small developers and middle class Americans with financial constraints.

The background and need for this legislation is as follows:

H.R. 4772 will allow greater and fairer access to Federal courts by those who assert Federal property rights claims under the Fifth Amendment's Takings Clause. H.R. 4772, the `Private Property Rights Implementation Act', is substantially the same as H.R. 2372, which passed the House during the 106th Congress on March 16, 2000, by a vote of 226-182.

Under current law, property owners are now blocked from raising a Federal Fifth Amendment takings claim in Federal court. The Supreme Court's decision in Williamson County v. Hamilton Bank, 473 U.S. 172 (1985), requires property owners to pursue, and exhaust, all available remedies for just compensation in State court before the property owner can file suit in Federal court under the Fifth Amendment. In San Remo Hotel v. City and County of San Francisco, 125 S.Ct. 2491 (2005), the Supreme Court recently confirmed and did not modify prior lower court case law that held that once a property owner tries their case in State court, and loses, the doctrines of res judicata and claim preclusion allow Federal courts to dismiss the claims on the grounds they were already decided by the State court. The combination of these two rules means that those with Federal property rights claims are effectively shut out of Federal court on their Federal takings claims, setting them unfairly apart from those asserting any other kind of Federal right, such as every Americans' First Amendment right to freedom of speech and freedom of religion, which may be asserted in Federal court in the first instance.

‘The late Chief Justice Rehnquist observed in his concurring opinion in San Remo that the Williamson County [decision] all but guarantees that claimants will be unable to utilize the federal courts to enforce the Fifth Amendment's just compensation guarantee.' Chief Justice Rehnquist specifically noted in San Remo that `[i]t is not clear to me that Williamson County was correct in demanding that . . . the claimant must seek compensation in State court before bringing a federal takings claim in federal court.' Indeed, the Second Circuit Court of Appeals previously noted that `[i]t would be both ironic and unfair if the very procedure that the Supreme Court required [property owners] to follow before bringing a Fifth Amendment takings claim--a state-court inverse condemnation [takings] action--also precluded [them] from ever bringing a Fifth Amendment takings claim.' [Santini v. Connecticut Hazardous Waste Management Service, 342 F.3d 118, 130 (2d. Cir. 2003).]

Rep. Chabot's Private Property Rights Implementation Act--which is based on the constitutionally-explicit authority of Congress to define the jurisdiction of the lower Federal courts, in Article III, section 1, and the appellate jurisdiction of the Supreme Court, in Article III, section 2, clause 2--would allow property owners raising solely Federal takings claims to have their cases decided in Federal court without first pursuing a (sometimes fruitless) litigation detour in State court. H.R. 4772, far from `federalizing' local land use issues, preserves federalism values. The current legal regime that violates the right of Americans to bring Federal suits to enforce Federal rights itself is a violation of federalism principles. H.R. 4772 simply makes it easier for individuals to hold local planners accountable for Federal rights violations. As Supreme Courts Justices William Brennan and Thurgood Marshall have said, `After all, a policeman must know the Constitution, then why not a [local] planner?'  [San Diego Gas & Electric Co. v. City of San Diego, 450 U.S. 621, 661 n.26 (1981) (Brennan, J., dissenting).]

Unfortunately, there is no companion bill  to H.R. 4772 in the U.S. Senate at this time, and it is unlikely there will be, even if the proposed legislation can be rolled into another bill. Our New Jersey state senators have a similar situation at hand with the inaction on New Jersey Assemblyman Burzichelli 's bill.

Click on the link below to read the entire text of H.R. 4772.     

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Hijacking Eminent Domain: Bait and switch with regulatory takings

“They’re baiting you with eminent domain, telling you that this is going to fix eminent domain, and then they’re switching in regulatory takings, and actually getting you to vote for that, when you might not if you really knew what it was about.”Councilwoman Elaine Clegg, Boise, Idaho

Ever since the June 2005 Supreme Court Ruling in the Kelo case, eminent domain, its abuse, and related property rights issues have generated stories; and in turn, those stories have grown legs, appearing daily in all forms of local and national media – radio, television, print, and the internet. A disturbing trend has developed around eminent domain abuse issues, post-Kelo: Charlatans and opportunists are showing up in droves, and their tactics and misuse of the eminent domain abuse issue is hurting the movement.

The latest example is Howie Rich and his efforts to pass so-called “eminent domain propositions” and other measures in California and 12 other states. These stealth propositions are like wolves in sheep’s clothing. Using an emotional call to action (eminent domain abuse), these ballot initiatives really mean to prevent communities from passing zoning laws and prevent government from adopting zoning regulations because those laws will ultimately be considered “takings:”

In fact these provisions are not “takings” at all, but more like “givings.” They give special rights to big landowners and developers, whose demands for compensation cannot be met by local governments, and who will use the new law to remove all barriers to runaway sprawl. (See Howie Rich from New York City: What Does an East Coast Millionaire Want with Your State?)

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Eminent Domain: Property Rights Act of 2006

Just in the nick of time, and two weeks before the United States Senate will adjourn, Senator James Inhofe (Republican, Oklahoma) introduced the "Property Rights Protection Act of 2006" (S3873). The bill is the same as H.R. 4128 which was passed by the House of Representatives in 2005 (325 affirmative votes to 38). H.R. 4128 has been dormant in the Senate Judiciary Committee, despite the efforts of many property reform groups to see some action.

The new bill, S3873, will go directly to the floor of the Senate, requiring Senator Majority Leader Bill Frist to put eminent domain reform on the agenda. Other Republicans,  including Arlen Specter, Bill Frist and President George Bush are missing in action on this issue. Eminent Domain reform is an important issue nationwide and will not go away.

To write or email your senators on this issue click here. You have 14 days to act.

Continue to read the full text of the bill.

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Eminent Domain Deadline in New Orleans is August 29

“We have to watch the redevelopment in New Orleans for a lot of reasons, and one of them is to make sure that the shadow government of the rich and the powerful does not end up abusing eminent domain to take property that belongs to poor people in order to get them out of the city.” – U.S. Rep. Maxine Waters, San Francisco Chronicle (Sept. 21, 2005)

As reported yesterday on Indybay.org, Stephen Bradberry, head organizer for ACORN New Orleans, and Jeffrey Buchanan, communications officer of Center for Human Rights, Robert F. Kennedy Memorial, wrote:

…Mayor Ray Nagin and the New Orleans City Council have callously chosen the one-year anniversary of Katrina to begin a policy that will demolish what little hope displaced, largely African American, families have of returning to their city. In May, the New Orleans City Council unanimously passed City Ordinance #26031, which sets a deadline for homeowners to gut their homes or potentially lose them.

By Aug. 29, homeowners who have not been able to make the necessary repairs to their battered homes risk having their property seized by eminent domain and bulldozed by the city. The Council’s decision will further “cleanse” New Orleans of its African American low and middle income families, continuing the exclusion and discrimination that have become hallmarks of the reconstruction.

 Bradberry and Buchanan advise:

If you are displaced from New Orleans or know someone who is, call ACORN now at 1 (800) 239-7379, ext. 187, to begin the process of saving your home by putting it on the clean-out list. Other organizations providing free house gutting – and also seeking volunteers and donations – are listed on the City of New Orleans website, http://www.cityofno.com. They include Common Ground, (504) 312-1731; United Methodist Recovery, (504) 461-0425; Catholic Charities, (504) 895-5439; and United Church of Christ, (504) 258-7306.

The ordinance on its face appears to be blatantly unconstitutional. Where is the due process? New Orleans officials have no way to contact the former owners who are scattered throughout the United States. What about compensation? Will title pass by default to the city and then to a developer? Ordinance No. 22203 (April 2006) states the following:

Section 26-261. Remediation of Housing following Hurricane Katrina

(a) When buildings used for living purposes have become and remain vacant as a result of damage sustained by Hurricanes Katrina and/or Rita, such buildings shall be subject to inspection by various inspection agencies of the city where the safety, health or welfare of the citizens of the city is concerned. The city may utilize records of public utilities or private utilities regulated by the city to determine when a premise is vacated.

(b) Every owner of a dwelling or dwelling unit shall be responsible for mold remediation, cleaning, gutting, and properly securing the premises of all properties so damaged in a manner so as to render the premises environmentally sound and not open to the public.

(c) Every owner of a dwelling or dwelling unit shall take appropriate measures to complete this work as soon as possible, but no later than August 29, 2006.

(d) All dwellings and dwelling units which, after inspection, are found not to comply with the requirements of this section are hereby declared to be public nuisances and shall be abated by repair, rehabilitation, demolition or removal in accordance with the provisions of this Article.

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Eminent Domain Abuse: President Bush finally gets it

President Bush issued an executive order "Protecting the Property Rights of the American People" on the first anniversary of the Kelo decision. The policy is simply stated:

It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.

This is a good step for private property owners, but what the President should do is spend a portion of his remaining political capital to get Senator Arlen Specter, Chairman of the Senate Judiciary Committee, to act on the "Private Property Protection Act." The bill, HR-4128, passed overwhelmingly in the House of Representatives last November and sits dormant in Senator Specter's committee. If President Bush wants to recapture popularity, this is an issue that has enormous public support and needs to be addressed at all levels of government.

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Eminent Domain: A letter to Senator Frist

"Americans remain vulnerable to government's ability to snap up a family's home or church today and turn it into a mansion tomorrow."
--Scott A. LaGanga, executive director, Property Rights Alliance

Today 53 national and state property rights organizations sent a message to Senate majority leader Bill Frist according to U.S. Newswire. They're asking that the Senate Judiciary Committee to pick up the pace and schedule a hearing on H.R. 4128, the "Private Property Rights Protection Act of 2005" which was passed by the House last November. The bill has languished in the Senate Judiciary Committee. Download the letter. Perhaps this letter will inspire Senator Arlen Specter (R-Pennsylvania), chairman of the Judiciary Committee.

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Eminent Domain: Home for the holidays

"Once man has comprehended himself and has established his own domain in real democracy, without depersonalization and alienation, something arises in the world which all men have glimpsed in childhood: a place and a state in which no one has yet been. And the name of this something is home...." Ernst Bloch in The Principle of Hope
"Home! And this is my room - and you are all here! And I'm not going to leave here ever again, because I love you all! And -- Oh, Auntie Em --there's no place like home!" - Dorothy in the Wizard of Oz
Your home is your sanctuary. It's the place where you can retreat from the world and the troubles of the day and feel safe in familiar surroundings. All of this is about to change in Long Branch, New Jersey, through eminent domain proceedings filed this week against the remaining homeowners in Beachfront North Phase 2. And as reported in the Atlanticville by staff writer Christine Varno, the Long Branch City Council voted unanimously to approve the use of eminent domain for the acquisition of 30 properties in Beachfront South at a special meeting held four days before the Chrismas/Hannukah holiday recess. The obscene land grab by Long Branch for the benefit of its developers, K. Hovnanian and Applied Management, continues.

The city continues to ignore the conflict with borough attorneys Greenbaum, Rowe and Smith and K. Hovnanian. When asked by resident Harold Bobrow if there was a conflict, the mayor and council told him that that the issue is in litigation and that nothing improper was done. This is a startling revelation by the city given the undisputed facts which have been widely reported in the Atlanticville and previously referenced in our last post on this blog.

The public will get to hear all the facts when Judge Lawson conducts hearings on Long Branch's right to take the properties recently condemned for Beachfront North Phase 2. There are 36 homeowners left in Beachfront North. If the city is allowed to proceed with eminent domain, we will be reading a list of senior-citizen homeowners who have lost their property, not unlike the daily litany of young soldiers who gave their lives defending our freedom on foreign shores. How have we come to this: that government is permitted to take property from one private land owner for the benefit of another private landowner? This is not the "public purpose" that our Founding Fathers envisioned when they permitted in the Constitution private property to be taken for public use. The concept of public use has been distorted and bastardized through the expanded definition of blight to which our courts have acquiesced.

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Eminent Domain Roll Call: H.R. 4128

Voting 376 for and 38 against, members of the House of Representatives passed the Property Rights Protection Act on November 3, 2005. Under the House bill, federal funds would be denied to the states or political subdivisions to acquire property for economic development. Download the text of H.R.4128.

The bill gives any aggrieved property owner the right to bring an action to enforce the provisions of the Act in the appropriate Federal or State court. The law puts the burden of proof on the defendant to show by clear and convincing evidence that the taking is not for economic development.

The Act further provides that a prevailing plaintiff shall be allowed reasonable attorney's fees as part of cost of the action including expert fees as part of the attorney's fee.

Interestingly, the only "no" vote in New Jersey's delegation was Rep. Steven R. Rothman (D) of Fairlawn, NJ. View the House of Representatives Roll Call here.

The bill now goes to the Senate for approval where Senator John Cornyn has proposed legislation.

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Eminent Domain and the Laws of Motion

"For every action, there is an equal and opposite reaction." - Sir Isaac Newton, The Third Law of Motion

The "Kelo effect" continues. Eminent domain abuse is still front page news and it's not going away. The reaction has fostered legislative changes to eminent domain laws throughout the country as quoted in editorial in the DC Examiner (Oct 25, 2005):

Less than a month after the Kelo decision, Patrick County in far southern Virginia adopted a tough local resolution that should be the standard elsewhere in the commonwealth. It states that eminent domain can be invoked for public use only when it "is absolutely necessary ... and the need overrides the importance of established private use." Generating jobs or increasing the tax base isn't enough. Patrick County not only forbids using eminent domain for any private development, it requires it be used only as a "last resort" for public projects - and only after producing written offers of up to 150 percent of market value. The property owner retains complete possession until compensation has been paid, and is entitled to an additional 10 percent in relocation expenses....

While Kelo may have given developers and their political allies a legal green light to seize private property, fierce grassroots opposition may ironically make it harder for them to do. "I don't think the [New London] homeowners are ever going to have to move," Berliner said, predicting that a flurry of legislation will be passed within the next six months. "Most states are going to pass something. They have to." Or face some pretty angry constituents.

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Eminent Domain Evictions

"They have sent us eviction letters and have given us 90 days to vacate." -- Michael Cristofaro, New London, Connecticut homeowner

The final step in the eminent domain process is about to occur in New London, Connecticut. Susette Kelo and her neighbors were condemned by the New London Development Corporation (NLDC) in 2000. They challenged the taking all the way to the United States Supreme Court and lost in a controversial 5-4 decision. See decision in Kelo v. New London. On August 22, the U.S. Supreme Court denied a request to reconsider the case.

The reaction to the Kelo decision has been strong and consistent. People are outraged. They did not realize government could take their homes and they further did not realize that some takings are not for the traditional public purposes such as highways, schools, or parks. Some takings, such as the NLDC acquisitions are for redevelopment where the taking agency transfers title to the property taken to a designated developer for redevelopment with a project which benefits the private developer, and indirectly the city, with new tax revenues and construction.

Susette Kelo and her neighbors were served with eviction notices and demands for back rent by NLDC in early September. The letters said, "You are required to quit possession of the premises no later than December 8, 2005." Homeowner Michael Cristofaro told World Net Daily, "As further insult to injury they are requiring us to send $600 a month rent." According to the Hartford Courant, the letters from the New London Development Corporation stirred a tempest of emotions and a crossfire of recriminations between lawyers for the seven homeowners and officials of the NLDA, with each side accusing the other of lying.

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Eminent Domain: The Tipping Point

"Twenty years from now, people will look back at Kelo the way people look back at Roe v. Wade." -- Grover Norquist, Americans for Tax Reform

The Economist declared that the "Supreme Court ruling that allows the government to seize private property has set off a fierce backlash that may yet be as potent as the anti-abortion movement." A current list of proposed legislation by the states can be viewed on the Castle Coalition website. Even local ordinances are being drafted by municipalities, such as Middlesex, New Jersey, where Council President Jerry D'Angelo said, "I think it's comforting for individuals to know they're not going to be forced out."

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Eminent Domain, Blight, and Domination

"We don't like anybody messing with our dogs, our guns, our hunting rights or trying to take property from us." -- Bob Riley (R), Governor of Alabama

Let's just say everybody's busy legislating from California to the Gulf Stream waters. At least two states, Alabama and Delaware, have signed bills that limit the right of local governments to seize property. Even U.S. Representative Maxine Waters, (D)California, signed two bills sponsored by Republicans. This rare alliance between conservatives and liberals shows that the eminent domain issue resonates with all politicians. According to The Black Voice News, Waters' district includes some of California's poorest and blighted communities.

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Eminent Domain Backlash

"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.

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THE KELO EFFECT PART 3: Masters of the House React to Eminent Domain Decision

"It is a decision of the Supreme Court. If Congress wants to change it, it will require legislation of a level of a constitutional amendment. So this is almost as if God has spoken. It's an elementary discussion now. They have made the decision." -- House Leader Nancy Pelosi, June 30, 2005

On June 30, 2005 the United States House of Representatives passed a bill 231 to 189 which would deny federal funds to any city or state project that used eminent domain to force people to sell their property to make way for a profit making project. See yesterday's Washington Post article.The House vote is another expression of the outrage that the members are hearing from their constituents. The vote is not law, and it is unclear, what if anything the senate will do in this regard.

The House also introduced Resolution 340 to express "the grave disapproval of the House of Representatives regarding the majority opinion of the Supreme Court in the case of Kelo v. City of New London that nullifies the protections afforded private property owners in the Takings Clause of the Fifth Amendment."

Democratic House leader Nancy Pelosi of California has spoken out on the eminent domain issue. Ms. Pelosi shows a shocking lack of understanding of the decision, the role of the Supreme Court, and the role of the legislature. See US Newswire transcript of her press conference and suffer the details.

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THE KELO EFFECT PART 2: Eminent Domain in the Court of Public Opinion

"It is appropriate for Congress to take action, consistent with its limited powers under the Constitution, to restore the vital protections of the Fifth Amendment and to protect homes, small businesses, and other private property rights against unreasonable government use of the power of eminent domain." -- U.S. Senator John Cornyn (R-Texas)

A tsunami of public anger has swept the internet, the blogosphere, and the editorial pages of newspapers as countless citizens are waking up to the fact that their homes may be at risk.

It's all about the U.S. Supreme Court's decision last week in Kelo v. New London and Eminent Domain. It cuts across party lines and it shocks liberals and conservatives alike. More than any other contemporary issue, this one hits the mother lode: private property rights. The decision effects the rich, the middle class, and the poor. It reaches to the core of our beliefs in liberty, justice, and the American way of life. "As for the victims," Justice Sandra Day O'Connor said in her dissent, "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 hue and cry has been swift. Hours after the court's 5-4 ruling came down, the Houston Chronicle reported that Rep. Frank Corte Jr. (R-San Antonio) said he would seek "to defend the rights of property owners in Texas" by proposing a state constitutional amendment limiting local powers of eminent domain, or condemnation.

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THE KELO EFFECT: Supreme Court Defeats Property Owners in Eminent Domain Decision 5-4

"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." - Justice Sandra Day O'Connor, dissenting

Today the Eminent Domain trilogy is complete. In May, the Supreme Court affirmed long standing regulatory takings stands in Lingle v. Chevron USA. Today, Kelo v. New London affirms long standing decisions regarding takings for public use in Midkiff and Berman. And last Monday, in San Remo v. San Francisco, the Court said property owners could not litigate in both the state and federal courts at the same time. In other words, don't call us, and we won't call you.

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WAITING FOR KELO: Will it have an impact on Eminent Domain in New Jersey?

Kelo v. the City of New London (04-108) should be decided this week by the United States Supreme Court. Don't hold your breath, property owners. It may be a non-event.

Berman v. Parker, 348 U.S. 26 (1954) created the narrow exception that led to eminent-domain abuse. Jeff Jacoby wrote in the Boston Globe:

Cities and states, eager for new development, began pronouncing neighborhoods blighted when they were simply working-class. Some went further, stretching the meaning of "public use" beyond "public purpose" into mere "public benefit." They condemned and seized private property on the grounds that another owner could use it to make more money, create more jobs, or generate more business -- all leading to more taxes, the supposed public benefit.... That 1954 ruling weakened the very foundation of our liberty: the right to own and lawfully enjoy property.

The question presented to the Supreme Court by the plaintiff Susette Kelo is this: What protection does the Fifth Amendment's public use requirement provide for individuals whose property is being condemned, not to eliminate slums or blight, but for the sole purpose of "economic development" that will perhaps increase tax revenues and improve the local economy?

Are there limits on government's use of eminent domain power under the public use requirement of the 5th Amendment? This is how the question was posed by attorney Scott Bullock (Institute for Justice)for the plaintiffs at the beginning the oral argument on February 22.

The colloquy between the Court and counsel is enlightening.

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REGULATORY TAKINGS IN EMINENT DOMAIN: Looking at New Jersey's Highlands through Lingle v. Chevron U.S.A.

Whether the Just Compensation Clause authorizes a court to invalidate and enjoin state economic legislation on the basis that the law effects a "taking" because it does not "substantially advance a legitimate state interest," without regard to whether the challenged legislation diminishes the economic value or usefulness of any property. --Question No. 1 of the Petitioners: Linda Lingle, Governor of the State of Hawaii and Mark J. Bennett, Attorney General of the State of Hawaii

We have had numerous inquiries lately regarding the recently enacted (Aug 10, 2004) Highlands Water Protection and Planning Act in New Jersey. The Act preserves and protects approximately 400,000 acres in New Jersey's Highlands region and sources of drinking water for New Jersey residents. However, the Act has resulted in development being stopped, subdivisions thwarted, and long planned projects by farmers and ordinary citizens halted as the state seeks to preserve the Highlands area of New Jersey for water protection and planning purposes. Some property owners claim that this Act violates their rights and is effectively a taking without compensation. Do these regulations and their effect on property rights constitute a taking for a "public purpose" under eminent domain statutes in New Jersey, and either the New Jersey or United States Constitutions?

The quick answer is probably not. Simply stated, property owners will have a very difficult time proving they fall within the regulatory takings categories enumerated in a recent U.S. Supreme Court Case, Lingle v. Chevron U.S.A., which was argued on February 22 and decided on May 23, 2005. This case is the first in a triology of eminent domain cases to be decided before July.

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U.S. Supreme Court to Hear Kelo v. New London

The United States Supreme Court granted certification in the case of Kelo v. City of New London, Docket No. 04-108, on September 28. The case, an appeal by property owners in Connecticut, deals with a very hot topic: The issue of what constitutes a valid public use as contained in the takings clause of the Fifth Amendment of the United States Constitution. The Constitution provides that:

"No person shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
The issue of property taken for public use and the development of that property has been addressed by many state courts, including New Jersey. The New Jersey Constitution, Article 1 Section 20, similarly states: "Private property shall not be taken for public use without just compensation. Individuals or private corporations shall not be authorized to take private property for public use without just compensation first made to the owners."

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