Judges question seizure of AC property through eminent domain

It was back to court for the Birnbaums.

“It’s kind of unbelievable. We hoped that we could go on with our life without this hanging over our heads, but the process goes on,” said Atlantic City homeowner Cindy Birnbaum.

Two years ago, a judge blocked the state Casino Reinvestment Development Authority from taking and bulldozing the Birnbaums’ brick, three-story house in Atlantic City. It’s located in the shadows of the casinos amid vacant lots that give their house an ocean view. The Birnbaums rent the upper floors and have a piano tuning business on the first floor.

The judge ruled the CRDA was abusing its eminent domain powers in claiming it wanted the land for public use and to promote tourism but had no specific plan to develop it. The CRDA appealed. Its attorney told an appellate panel the CRDA does not develop land. It assembles the pieces for developers. He cited state law.

“[The law] says the CRDA can take any property for any purpose whether or not for immediate use. It doesn’t have to be next day,” said attorney representing CRDA, Stuart Lederman.

“But, is there any limit at all?” asked Hon. Ellen Koblitz.

“Not if it’s taken for a public purpose, your honor, and in this case the legislature determined in 2011 that the promotion of tourism in Atlantic City was essential and vested the CRDA with the right to promote tourism and to take what actions necessary to promote tourism,” Lederman replied.

“Well, how does it promote tourism to have a large piece of undeveloped property? I mean nobody’s going to come look at it. Nobody’s going to stay there,” Koblitz said. “Nobody’s going to spend any money there.”

“Fair point, your honor, except that should this court and the lower court substitute its judgment for that of the Legislature and the Authority?” asked Lederman.

“So I’m asking you, if the court below was too restrictive, what are the limits?” asked Koblitz.

The lawyer then cited a case that the CRDA lost. The court also challenged the Birnbaum’s attorney from the Institute for Justice.

“It’s not true as a matter of New Jersey law. It’s not true as a matter of the law of any jurisdiction I’m familiar with that the condemner can take property despite there being no reasonable likelihood of future public use,” said Institute for Justice senior attorney Robert McNamara.

“The statute does not have any kind of qualifiers in it,” said Hon. Heidi Currier.

“That’s true, your honor, but this is a standard that New Jersey courts have been using for at least 30 years,” replied McNamara.

The appellate court plans to rule on this eminent domain case within the next six months. The Birnbaums are hoping the courts will use their case to set a precedent.

“If this case were on the books for other people, I feel that this fight will have been worth it because it’s greater than us. It goes beyond us. And it’s something that when we’re long gone, people hopefully can say, ‘That Birnbaum case said the government just can’t come and take something because they feel like it and have the power to do it,’” said homeowner Charlie Birnbaum.

Come next year, the Birnbaum family will have owned this house for 50 years, and says it hopes to for many more.