Proposed limitations on the use of eminent domain by governments could end up tying officials’ hands.
By: Hank Kalet
There was a blip on the national radar screen and then it was gone but apparently not forgotten.
When the U.S. Supreme Court ruled last year in Kelo v. New Haven, Conn., that the city was in its rights to condemn homes as part of a larger plan for economic redevelopment of its waterfront, it became a lightning rod for the issue of property rights.
The public at large viewed the decision as an assault on the sanctity of their homes and businesses and property rights advocates accused the court of creating new government powers that had not existed before.
The argument followed along this basic line: All-powerful government wants to abuse its power to steal property from the powerless. The New Canaan story is the easy one private homes being razed to make way for commercial development, a situation similar to the fight being played out in Long Branch right now.
Property-rights advocates view this as an abuse of the power and several members of the state Legislature are moving to put an end to it, drafting bills that would limit eminent domain to what they call its more traditional uses, such as taking property for construction of hospitals and highways, and forbidding economic development uses.
The discussion on the table at the moment, however, simplifies what is a convoluted and complicated set of interlocking issues. After all, who gets to decide what constitutes economic development?
Two examples should shed light on this. First, there is the so-called Atlantic City tunnel a series of tunnels, overpasses and ramps built in the 1990s with the approval of the Whitman administration that required the taking of dozens of homes.
As a roadway, this technically would qualify as a legitimate use of eminent domain under the various bills being floated. But the reality was that the tunnel complex was being constructed and a low-income neighborhood razed to make the marina-side section of the city more accessible and therefore more profitable to the casino industry.
Closer to home, we have the long and painful saga of Route 92, which is likely to require some eminent domain takings if it ever wins federal approval. Road proponents have long argued that the N.J. Turnpike spur, which would connect the Turnpike at Exit 8A to Route 1 near Ridge Road, is needed to alleviate local traffic.
But, as opponents of the road have pointed out for years, it also would be a boon to corporate development. It would grant nearly direct Route 1 access to the Exit 8A warehouse corridor what Middlesex County Planner George Ververides has called an "inland port" while its proposed Perrine Road interchange is essentially nothing more than a private driveway into the Forrestal corporate park in Plainsboro.
Both of these projects along with others including the original construction of the N.J. Turnpike and the various transit villages being discussed for North Brunswick and elsewhere are predicated not just on moving traffic, but on their use as economic spurs every bit as important to their regions as the redevelopment plans being pushed in Long Branch.
I generally support imposing some restraints on the use of eminent domain, especially when a private developer might ultimately benefit. But I’m not sure that crafting strict definitions is the correct path to follow on this.
Under the various bills being proposed, taking land for the Atlantic City tunnel and Route 92 would be allowed both are road projects but other more obvious economic development takings would not.
It is important to remember that eminent domain is a useful and sometimes necessary tool, one that has been used to great effect in urban redevelopment projects, including in downtown New Brunswick (though business owners might disagree), for construction of affordable housing and health care facilities and in preserving open space. (Both Monroe and Cranbury have used eminent domain or the threat of it to secure important properties.)
The key is that the properties taken were part of a larger, more comprehensive plan for redevelopment or open space preservation.
Reforms certainly are needed especially given the nexus between campaign contributions and government action and the potential that eminent domain could be used as a quid pro quo.
But rather than define away potential uses, I’d rather see a more open process that involves more public hearings and, possibly, the use of referenda as a community veto on projects approved by governing bodies.