New Jersey Eminent Domain Law Blog

William J. Ward and James M. Turteltaub will speak on Monday, October 15, 2007, at the 3rd Annual CLE International Eminent Domain Conference at the Nassau Inn in Princeton, N.J. On Monday October 15, Mr. Turteltaub and Stephen Eisdorfer of Hill Wallack will discuss best practices in their presentation, "Appealing the Case."  Mr. Ward will present "Ethics and Redevelopment in New Jersey" The conference concludes on Tuesday, October 16. A full schedule of events can be obtained at the CLE International website.

Monday October 15 at 2:45 p.m.  Appealing the Case:  This presentation addresses special considerations for condemnation appeals. Condemnation actions have two final judgments and one award of commissioners, each of which must be appealed separately. Click here to read more about the course of action in contesting the right to take, staying an appeal, and other best practices. - James M. Turteltaub

Monday October 15 at 4:30 p.m. Ethics and Redevelopment in New Jersey:  This presentation with power point focuses on the bribery, corruption and pay-to-play that has tainted redevelopment in New Jersey as well as recent case law on conflicts of interest affecting lawyers and officials at the state, legislative, and local government levels. Click here to read more about recent events and the call to action for one uniform code of ethics. - William J. Ward 

The opponents and proponents of the massive Atlantic Yards project in Brooklyn assembled on Thursday, May 3, 2007, before New York State Supreme Court Justice Joan A. Madden. Lawyers for both sides argued before a packed court room for more than 3 hours.

Norman Oder's comprehensive blog post covering the oral arguments can be found at the Atlantic Yards Report: ESDC grilled over blight, "civic project" in EIS lawsuit hearing, but judge's latitute may be limited.

The definition of blight was among the interesting issues argued. Another argument focused on whether the proposed arena can be considered a "civic project" under New York state law. As to the latter issue, we are of the opinion that the proposed new arena for the NETS is window dressing for a massive real estate project backed by developer Bruce Ratner of Forest City Ratner (FCR).  A telling point made by attorney Jeffrey Baker, representing Develop Don't Destroy Brooklyn and 25 neighborhood and civic groups, is that the alleged blight was determined after developer Ratner decided what the footprint for the project should be. In other words, Ratner went shopping for other people's property and the Empire State Development Corp. (ESDC) obliged him: they did the blight study after the project was announced.The predetermination of the project footprint by FCR prevented the ESCD from considering alternative locations, such as Coney Island, for the new arena.

Ratner's predetermination of the site and his desire to tie it to a mixed-use development was the theme for this opera, and ESDC and the MTA provided the full orchestration. Why couldn't this project be limited to the rail yards? Is it necessary to acquire and build on all the surrounding properties to achieve the "civic purpose" to bring professional sports to Brooklyn? We've seen the answer over and over in redevelopment projects in New Jersey: "There's gold in them there redevelopments." This project has more to do with real estate development than with the arena. Arena projects, per se, are losers (see the Field of Schemes site.) They do not generate enough dollars to justify the cost of the land and construction. The sales pitch is always more jobs and business coming to the area. The jobs issue is minimal at best: 300-400, mostly part-time and low-paying jobs. On the whole, sports subsidies do not benefit the community. Research shows that stadium and other sports subsidies benefit team owners, like Bruce Ratner,  and professional athletes.

Baker argued that the legislature never intended a privately-owned sports facility as a "civic project," which is defined as “a project or that portion of a multi-purpose project designed and intended for the purpose of providing facilities for educational, cultural, recreational, community, municipal, public service or other civic purposes.”

As for the the blight determination, Baker asserted, “There is no mention that the purpose of this project was to avoid and eliminate blight.” Oder reports that the blight determination was included in ESDC’s scoping document of September 2005.

The challenge to the blight designation centered on the blocks designated for the project outside the Atlantic Terminal Urban Renewal Area which were never determined to be blighted, Oder reports:

Baker put new posters on the easels, pointing to the apparent contradictions in the state’s blight study, which counted multiple indicia of blight, including unsanitary/unsafe conditions, vacancy status, empty lots, and the failure to use 60% or more of the allowable development potential.

He pointed to two buildings on Pacific Street, above. “I would ask your honor,” he addressed Madden. “Which is blighted? You can't tell.” ....

Baker called the state’s criterion of underutilization “a fairly unique concept,” because it lacked any analysis of how the property is being used. The lot at the northwest corner of Dean Street and Flatbush Avenue, he said, is considered “dramatically underutilized,” but now is occupied by “a highly successful gas station.” There’s nothing in the law, he said, “that says all buildings must be built to the maximum size possible.” The ESDC’s method, he argued, “is, per se, arbitrary and capricious.”

A summary of the issues in the DDDB v. ESDC case can be found on the Develop Don't Destroy Brooklyn site. If the suit succeeds, the ESDC will be forced to revise its Environmental Impact Statement (EIS), delaying the project. Justice Madden is expected to issue her ruling in four to six weeks.

"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.

It's not too late to join William J. Ward, author of the New Jersey Eminent Domain Law Blog and moderater of the Lorman Education seminar, Eminent Domain in New Jersey, next Tuesday, April 17, 2007, at the Hyatt Regency in New Brunswick.

Senator Ronald Rice, chair of the Senate Urban and Community Affairs Committee and sponsor of proposed legislation to address eminent domain reform, and Senator Ellen Karcher, sponsor of pay-to-play reform legislation, will be featured speakers. Eminent domain reform and pay-to-play are critical components of any effort to change the manner in which eminent domain acquisitions occur in New Jersey. See "Pay-to-play's poster child" at northjersey.com (The Record, April 9, 2007.)

Eminent domain decisions are occurring weekly at the trial and appellate court levels. These recent case law and legislative developments, environmental, valuation, planning and relocation assistance issues are the subjects that will be discussed by the speakers. The full-day program will conclude with a panel discussion, The Ethics of Redevelopment and Pay-to-Play with Senator Ellen Karcher, Paula Franzese, chair of the New Jersey State Ethics Commission, Paul P. Josephson of Hill Wallack, and William J. Ward, managing partner of Carlin & Ward.

Other speakers include Deputy Attorney General Maureen Hinchliffe Bonney, attorneys Edward McKirdy and John Buonocore of McKirdy & Riskin; Timothy P. Duggan of Stark & Stark; Anne L.H. Studholme of Hill Wallack; James M. Turteltaub and Arthur G. Warden III of Carlin & Ward; appraiser William H. Steinhart, vice-president of Appraisal Consultants Corp.; Robert Cunningham of the New Jersey Department of Transportation; and Peter G. Steck, planner.

The seminar provides continuing education credit for attorneys (NY and PA) , appraisers, and planners. Download a copy of the brochure with the agenda and biographies of the panelists. Advance registration is preferred. There are a limited number of media passes available to publications that cover eminent domain news. Please contact Susan L. Ward at 973-377-3350.

Eminent Domain in New Jersey will be presented by Lorman Education Services on April 17, 2007, at the Hyatt Regency New Brunswick. The seminar, moderated by William J. Ward, Esq., is designed for attorneys, real estate professionals, project managers, planners, developers, appraisers, and land specialists.  Critical issues on the agenda include case law developments, legislative reform, planning, environmental and valuation issues, relocation assistance, and the ethics of redevelopment and pay-to-play. 

The faculty includes: Senator Ronald Rice, Senator Ellen Karcher, Paula A. Franzese, Maureen Hinchliffe Bonney,  Robert Cunningham, John H. Buonocore, Edward D. McKirdy, Timothy Duggan, Christopher Gibson, Paul P. Josephson, Anne L.H. Studholme, Peter G. Steck, William H. Steinhart, James M. Turteltaub, and Arthur G. Warden, III.  Read the faculty bios.

Continue reading for continuing education credits and seminar benefits.

To obtain the brochure click here. 

“My property is not for sale….There is a much bigger issue at stake: The rule of law has to prevail. The whole reason the United States was formed was to get away from the divine right of kings.” – Henry Weinstein, Atlantic Yards property owner. No Land Grab (March 10, 2007)

Property owners fighting Forest City Ratner’s massive Atlantic Yards project achieved a small but significant victory  when N.Y. Supreme Court Justice Ira Harkavy ruled that Forest City Ratner had illegally acquired the tenant’s interest in a 1-acre property owned by Henry Weinstein. The judge terminated FCR’s lease on the two properties, a six-story office building, and adjacent parking lot along Pacific Street. Control reverts to the owner, the judge ruled. NY Times, "Atlantic Yards Loses Lease to Part of Site" (March 8, 2007).

Apparently, Forest City Ratner had taken the assignment of the tenant’s interest in a 6-story office building without first obtaining Mr. Weinstein’s written consent, as required by the lease:

The leases in question here clearly and unambiguously required tenants to “first” obtain the written consent of the landlords before any assignment of the leases. Notwithstanding that provision, the tenants chose to execute the assignments to AY Carlton, even though they had not received the written consent of the landlords. Indeed, the tenants chose to execute the assignments less than two weeks after sending their letter requests, before they received any response form the landlords, without trying to contact the landlords. The tenants’ assignment was clearly not permitted by the leases.

This decision creates a hole in the 22-acre donut which Forest City has represented it controls. The tenant, Mr. Boymelgreen, and his lawyer vowed to appeal. Assuming the court decision stands, Mr. Weinstein’s opposition to the project and the proposed taking will move forward with a clear delineation that he is the owner and the party in interest that Forest City  and the Empire State Development Corporation must deal with. See the opinion in 752 Pacific LLC, et ano v. Pacific Carleton Development Corporations, et ano.

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."

"We initiated this litigation not just because of our deep concerns about the project proposed by Ratner, but also because the environmental review process, as executed by the ESDC, is stacked so heavily in favor of developers, and against community...We are optimistic that the Appellate Division will agree with Justice Edmead that 'business as usual' at the ESDC is no longer acceptable when it comes to sharing attorneys with developers." -- Candace Carponter, Legal Chair for Develop Don't Destroy Brooklyn

The ESDC is the agency in charge of overseeing developer Bruce Ratner's massive project for Prospect Heights, Brooklyn, located at Flatbush and Atlantic Avenues. Paget had previously represented Forest City Ratner (FCR) privately on the same project and then became ESDC's lawyer. The judge called this "a severe crippling appearance of impropriety" and scoffed at the agency lawyer's arguments that the relationship was "collaborative." The agency plans to appeal the decision.

Jeffrey Finkle, President and CEO of the International Economic Development Council, was quoted in the New York Times this week characterizing the political defense of eminent domain as the "third rail right now...You step on it, you die." Developers can't imagine a world without eminent domain. Use of eminent domain for private development is almost always controversial where blight is involved.

Develop Don't Destroy Brooklyn (DDDB) and fifteen property owners and community groups fired the first legal salvo at Forest City Ratner's plan to build a new city within the city at Flatbush and Atlantic in Brooklyn, N.Y. The litigation filed last week focused on Ratner's efforts to begin demolition on six buildings he has acquired and allowed to deteriorate. Of course, his demolition is characterized as benefiting the public health, safety and welfare.

But are the buildings an imminent threat? Norman Oder's post at TimesRatnerReport yesterday quotes Jay Butler, the professional engineer brought on board by the litigating community groups to review the buildings. Although Butler wasn't allowed inside, he stated: "I cannot conclude that the buildings pose an imminent threat to public safety. Any defects....appear to be consistent with conditions found at countless other buildings in New York City."

The more serious issue in the lawsuit points to an insider deal with blatant conflicts among attorney David Paget who has represented FCR (the developer) and also represents Empire State Development Corporation (ESDC), the lead environmental agency for the SEQRA review of project with respect to Ratner's efforts to demolish the six buildings in the project area.

"The organized and individual opposition to the Ratner proposal--which straddles neighborhoods, race and economic class--can claim political power when we look at these electoral results. The opposition claims victory on these political referenda on Ratner's plans. The two mayoral candidates seeking votes in Brooklyn would be wise to take note of this." - Daniel Goldstein, spokesperson for Develop Don't Destroy Brooklyn in Leading Ratner Opponents, Letitia James and Norman Siegel Thump Ratner Supporters in Districts Impacted by the Developer's 18 Skyscraper and Arena Plan

A tree grows in Brooklyn; it is nourished by the hope that infuses a strong grass roots movement. Develop Don't Destroy Booklyn is a group of concerned citizens that cuts across all demographic groups --people of all races and income levels have come together to stand up to the power of Forest City Ratner, the State of New York, and the City of New York, who are pushing for a new city rising out of the Atlantic Yards and surrounding a stadium for the Nets basketball team. Develop Don't Destroy Brooklyn advocates greater transparency, government accountability and community involvement to the development of the Atlantic Yards area in Brooklyn. They challenge Bruce Ratner's proposed use of eminent domain to build the Nets Arena and 17 highrise development plan for the area.

The proponents of this project have largely ignored the neighborhood -the people, the buildings, and the small businesses. They do so at their peril. The strength of the grass roots movement is its organization and commitment to the cause - preserving their homes, neighborhoods, and their property. They will fight eminent domain in the press, in the courts and in the voting booths. And the politicians who push these projects will be defeated.

At an event on October 5, 2005 at the BRIC Studio in Brooklyn, "A Celebration, Inspiration, and How to Stop Eminent Domain in Its Tracks," sponsored by Congressman Major Owens, Senator Velmanette Montgomery, and New York City Councilwoman Letitia James, the celebration included a toast to the recent success of Bloomfield, New Jersey litigants who are also fighting a Forest City project. The organizers showed a poignant file about eminent domain, George McCullough's "All for the Taking," followed by a panel discussion. The film documents the plight of several low income families in Philadelphia, Pennsylvania slated to be acquired for a large urban renewal project.