Opinion: Gov. Christie’s Chance for a Good Veto — Senate Bill S-2447

R. William Potter | July 9, 2013 | Opinion
Vetoing this dangerous proposal would protect property owners across New Jersey from the misuse of eminent domain

After vetoing legislation to expand Medicaid access, the governor should continue his vetoing ways — but this time for good reason –when he gets around to S-2447.

This bill passed both houses of the state Legislature with bipartisan support and is self-described as “codifying protections set forth in certain case law and limits use of eminent domain under the ‘Local Redevelopment and Housing Law.'”

What’s not to like with that? Plenty, as it turns out, is wrong with this innocuous-sounding bill — both with what it does and with what it doesn’t do that needs fixing to prevent continued abuse of eminent domain laws.

But first some background:

In 2005 the U.S. Supreme Court ruled that it was constitutional to take private property — Suzette Kelo’s famous “little pink house” — not because it is “blighted” or to make way for a highway or other “public use.” New London, CT, wanted to clear the waterfront of housing so that a pharmaceutical giant could build a new headquarters there, producing more jobs and tax ratables.

While most local residents took whatever they were offered for their homes, Kelo, a hard-working nurse and single mom, would not budge. Represented by a public-interest law firm, she took her appeal to the top court in the land.

In Kelo v. New London, the justices — by a 5-4 vote — twisted the words in the Fifth Amendment “for a public use,” which allow government to condemn (take) property if “just compensation” is paid, into “for a public purpose” — which means just about anything a majority of a city council wants to do. And what better “public purpose” than to use eminent domain to generate needed jobs and more tax revenues for schools, police, and the like?

The problems with this rewrite of a single word in the Bill of Rights soon became apparent around the nation, especially in New Jersey. The Kelo decision opened the floodgates for so-called economic development takings. Spurred by grandiose visions of a new era of urban renewal, mayors across New Jersey — like their counterparts in other states — quickly declared almost any property as a “blighted area” to make way for big projects (most were never built) — using the misleading euphemism “area in need of redevelopment” instead of the pejorative “blighted.”

Then along came the New Jersey Supreme Court to halt the worst of the abuse when Paulsboro went so far as to declare “an expanse of vacant unimproved land,” in the words of a municipal planner — referring to Col. George Gallenthin’s farmland and freshwater wetlands — as “blighted” solely because there was “no commerce occurring” on his verdant riverfront acreage.

In short, the Gallenthin land was ripe for taking not because it was harming anyone, but because Paulsboro’s planner imagined a “more productive use” of this land by taking it and deeding it over to a redeveloper.

All that changed in the summer of 2007. That’s when our Supreme Court in Trenton held that the desire to promote economic development does not justify a “blight” designation. Otherwise, no property anywhere is safe from a coercive taking — a single-family house could be replaced by a four-story condo, for example.

What the state justices held is that the Blighted Area Clause of the New Jersey Constitution restricts “takings” to properties that are “truly blighted . . . devastating surrounding properties” with their blighting influence, such as crackhouses or heavily polluted and abandoned buildings.

(Disclosure: This law firm represented Col. Gallenthin in his successful challenge of the Paulsboro blight designation and has represented other property owners in similar cases around the state.)

So why should Gov. Chris Christie veto S-2447? For starters, since the courts of New Jersey have already defined what “blighted” or “in need of redevelopment” means, there is little need for legislators to “codify” this body of case law that every municipal planner and attorney in the state — by now at least — can recite from memory.

More important than the lack of necessity, there’s real mischief-making here that could have been uncovered had either the Assembly or the Senate held a public hearing.

Here’s the core problem with S-2447 and its Assembly version, A-3615: They create an entirely new category of “blighted area.” I call it “blighted lite.”

The bills permit municipalities to designate “Non-Condemnation Redevelopment Areas” (NCRAs) for the obvious purpose of making it a lot easier and faster for governments to seize effective control, if not outright ownership, of private property — even if they don’t pay a dime for the privilege and don’t use eminent domain.

How’s that possible? Even if a city cannot take land or buildings from their owners, it is empowered to exercise “all those other powers provided by the Legislature for use in a redevelopment area” — even if the property is not blighted. And these “other powers” are enough to border on the dictatorial. They include the power:

  • To replace local zoning, thus avoiding a ton of rights and remedies contained in the Municipal Land Use Law, including time limits for decision and clear procedures for adjudicating disputes.
  • To order the owners to make at their own expense virtually any “improvements” deemed necessary at the whim of City Hall, such as installing new HVAC equipment in old buildings.
  • And here’s a real kicker: to decide who can “develop” the property, and it may not be the owners who doubtless assumed that such a decision (to sell or not, to develop or not) was theirs alone to make.
  • In other words, this bill — if Christie bows to pressures to sign it into law — opens the door to a kind of legalized theft, the trumping of important property rights, and to increased risk of corruption on a grand scale.

    Not that these ill effects are certainties, but we do live in a state with a documented history of urban officials snared in corruption scandals, much of it related to development projects.

    There’s plenty more wrong with this bill.

    What if the property owner in an NCRA refuses to sell to the municipality? The city can turn around and declare that the property is no longer an NCRA. Now it’s a “Condemnation Redevelopment Area.” “Blighted-Area Lite” becomes — albeit after a second round of hearings — “Blighted-Area Heavy.”

    What about judicial review of blight designations? While improving “public notice” standards, the bill bars the courthouse door to any legal challenge unless it was filed within 45 days of “notice.” Most owners think they can wait to sue until after they see the city’s redevelopment plans. But by then they are too late, unless a court expands the time limit “in the interest of justice.” This bill removes a court’s discretion to hear such late-file” cases.

    As for what needs fixing, forget about it. This so-called reform bill doesn’t address any of the real problems of eminent domain abuse, the topic of a future column. In the meantime, Christie needs to strike a blow for protection of one of our precious civil rights, the right of every property owner to be left alone.