The year is 2035, and the town fathers in East Brunswick have just taken 17 single-family homes because the Wawa Corp. wants to build a new mega-convenience store near the mall on Hillsdale Road. The homeowners have fought it as far as they can, but the courts hold that eminent domain is a perfectly acceptable tool for development as long as the taking is necessary to fulfill the public whim.
In Old Bridge, the Township Council has just taken a dozen homes near Route 18 because Krispy Kreme wants a new superstore, capable of producing 70,000 donuts and 50,000 cups of coffee a day. The public whim has determined that much coffee and that many donuts necessary.
In Freehold, town fathers have taken 30 single-family homes in the old residential area along Main Street because, on a whim, the Borough Council has decided that it really, really wants the world’s largest Chuck E. Cheese within walking distance of downtown.
Outrageous? Unbelievable?
Well, not if you talk to the 26 beachfront homeowners who comprise MTOTSA (Marine and Ocean terraces and Seaview Avenue) in Long Branch, who stand to lose their properties so a private developer can build townhouses and condominiums. The members of MTOTSA had hoped that a case being considered by the U.S. Supreme Court would buttress their contention that the property-taking was not necessary for either public use or public purpose, and even if it was, they weren’t being offered just compensation for their homes.
Those hopes were dashed last Thursday, when the court — considering a similar case regarding some New London, Conn., homeowners whose properties were being taken by eminent domain in order to build an office complex — decided in a 5-4 decision that the government can seize homes and other private properties for private economic development, even against the wishes of the property owners.
It was only the latest assault by jurists, who have taken it upon themselves to legislate from the bench and rule that the framers of our Constitution didn’t really mean what they said, but meant something else entirely.
Under the Fifth Amendment of the Constitution, the men who gave birth to our government stated, “Nor shall private property be taken for public use without just compensation.” It was an effort by those wise men to curb the potentially despotic power of government to take private property except in urgent cases that clearly served the public need. The tactic was used for roads, railroads, post offices and prisons, for example — uses that clearly served the public need. America could not fully develop without railroads. Anyone could see that, and for the good of the many, the few who owned property along the proposed path of that railroad might have to suffer. But for that suffering, they would be justly compensated and called patriots.
To them, any other use of eminent domain was unthinkable.
It was entirely thinkable to the men and women who came later. In 1954, the court decided that the public need could encompass public use and public purpose, a twisting of the original concept that allowed private developers to gain control of blighted properties for the purpose of urban renewal.
And gradually, over the years, that concept has been twisted even further, to where it now allows governments to seize property on the theory that another owner can use it to make more money, raise more taxes, create more jobs and make the community more attractive to a better class of residents. The fact that the properties are not blighted is not even a consideration.
Public need has gone a long way toward becoming public whim. And in fact, there are lots of people in Long Branch who’d say we’re already there.
Some of them spoke to Greater Media Newspapers reporter Christine Varno last week after the decision was announced. I’ll let them speak for themselves, since their words are much more eloquent than mine.
William Giordano owns a home on Ocean Terrace. “I am disgusted,” he said. “It is a decision that invites corruption. It puts more power into the hands of the affluent and politically connected. It is a decision that violates liberty. I cannot understand how justices so wise can make such a bad decision.”
Denise Hoagland also lives on Ocean Terrace. “It is a disgrace to our country, and the men and women who fought for this country,” she said. “My brother was in Iraq last year fighting for the rights of Iraq, while his sister is being denied her rights in America. I am disgusted. I believe in the Constitution of the United States, and I never anticipated this would be the direction the judges would take. I am shocked because I believe in the values of our Constitution, and this ruling goes against that Constitution.”
Now, it seems, their fight will only be about whether they receive just compensation for their properties. The argument is over appraisals. The city feels its own appraisers came up with just compensation. The homeowners feel they’re being lowballed.
“What is wrong with getting an honest appraisal?” homeowner William Giordano asked recently.
“Because you would not accept it, that is why,” City Attorney Jim Aaron responded.
And so it goes.
An action that would have been seen as too despotic and horrible for our founding fathers to allow has now become commonplace. It’s all about the tax base. All about image and convenience. Public need has become public whim.
“The real issue,” Ocean Avenue resident Lori Ann Vendetti said at a recent meeting of the council, “is that no one should be forced to move or sell [their properties] so someone else can make a profit.”
Words that all of us in New Jersey — where new questionable eminent domain cases arise nearly every week — should take to heart.
Otherwise we can all look forward to the new Wawa in our own — or what used to be our own — backyards.
Gregory Bean is executive editor
of Greater Media Newspapers.