New Jersey Eminent Domain Law Blog

“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:

a)  Type: L = legislative referendum

New Jersey does not readily fit into the eminent domain reform context because the New Jersey Constitution Article VIII, § III: provides that takings to eliminate blight are a public purpose:

The clearance, replanning, development or redevelopment of blighted areas shall be a public purpose and public use, for which private property may be taken or acquired.

More importantly, New Jersey voters do not have available to them ballot initiatives to effectuate changes in the law or the New Jersey Constitution. However, the Local Redevelopment Housing Law (LRHL), adopted by the legislature in 1992 to implement and define so-called blight takings, is now the subject of a legislative initiative to amend the statute. See recent blog. We expect the Senate version S-1975 regarding the amendment of the LRHL and portions of the Eminent Domain Act of 1971 to be voted out of committee and presented to the entire legislature before the end of the year.

The chief problem in New Jersey is that the legislature has expanded the definition of blight far beyond what was intended when Article VIII, § III was made part of the 1947 revision to the New Jersey Constitution. See the New Jersey Public Advocate’s report.

Also, see Timothy Sandefur’s article (Michigan State Law Review 2006): The “Backlash” So Far: Will Americans Get Meaningful Eminent Domain Reform? In his law review article, at Section D on page 16, Sandefur, writing on behalf of the Pacific Legal Foundation Program for Judicial Awareness, discusses how eminent domain is used to combat blight in the context of economic development:

The theory of economic development condemnations begins with the concept of “blight.” Originally a term for a plant disease, the term “blight” was first applied to neighborhoods during the Progressive era, by urban planners who conceived of cities as similar to living organisms: when a neighborhood failed to perform up to the standard required by the “needs of the public,” it was up to the government to intercede and alter the economic situation so as to improve the neighborhood.

Today, this attitude remains the keystone of economic development projects. Under the laws of most states, redevelopment through eminent domain works as follows: when confronted by a “deteriorating” or economically underperforming neighborhood, city planners seek the attention of a developer who would be willing to locate in the area if given enough incentives. Officials are often required to draft a redevelopment plan before proceeding; such a plan will include fact-finding by consultants, who are hired to advise the city on whether a specified area is “blighted.” These consultants are too often willing to tell cities whatever they want to hear; in one recent California case, a trial court rejected the findings of a consultant that had performed what it euphemistically called a “windshield survey” of a neighborhood to determine whether it was blighted. A windshield survey, of course, means that the consultant simply drove through the neighborhood before writing up a report declaring the neighborhood blighted.

The backlash to the Kelo case has not subsided. The constitutional amendments and eminent domain reform initiatives that passed in 10 out of 13 states throughout the country evidence this. The public has spoken. Voters in these states overwhelmingly rejected public takings for private gain for “economic development.” New Jersey legislators would do well to heed the public sentiment. They ignore it at their own peril.