New Jersey Jewish News
Commentary
There for the taking? Fear of eminent domain
Whether you know it or not, your property is in danger. That danger, known as eminent domain,
allows state, local, and even the federal government to come in and condemn and force a sale of your private property.
Traditionally, eminent domain was used for a “public purpose” — to condemn property needed for new schools, highways, or the like. The theory was that an individual’s property rights were subordinate to that of the government. When the government took your property, you were entitled to “just compensation” for the taking.
Indeed, the use of eminent domain was crucial for the building of our interstate highway system, and served a significant purpose in the redevelopment efforts in New Brunswick, Jersey City, and Camden.
Then gradually things changed.
Municipalities began to realize that they could increase their tax base by clearing “blighted” areas and allowing the land to be used by private developers, who would build new housing or malls that could be taxed at a higher rate.
But where does that leave you and me, typical homeowners, if your local government decides that your property and that of the folks next door would be an ideal location for a new condo development? While zoning laws may protect you to some extent, property can be and is rezoned when officials deem it suited to a better use.
This is especially dangerous in New Jersey, where campaign contribution cash speaks, and where developers could influence local officials with the lure of sizeable contributions for election time.
This danger was magnified following the U.S. Supreme Court’s decision last year in the case of Kelo vs. City of New London, Conn., in which non-blighted homes in a waterfront neighborhood of New London were to be torn down and replaced with a luxury hotel, condos, and office buildings.
The consequence of the court’s 5-4 ruling is that tax-hungry local officials and developers were given the green light to condemn your home if they would like it for a new, higher tax-generating office complex or condo development.
As you may imagine, the court’s decision did not sit well with many people. As Justice Sandra Day O’Connor noted in her dissenting opinion, “The government now has a license to transfer property from those with fewer resources to those with more. The founders could not have intended such a perverse result.”
Fortunately, the decision started a firestorm of legislative activity in many states to provide stronger protections for private property owners. The court’s opinion provides minimal standards. This is permissible because the states are allowed to enact greater protection and stronger restriction on the taking powers of government.
Already 40 states have reacted with legislation or proposed new laws. For instance, Michigan’s legislature passed a law prohibiting the taking of private property for transfer to a private entity for the purpose of economic development or enhanced tax revenues. Pithy, and right on target.
New Jersey is among the states looking into this issue. Several bills are working their way through the legislative maze. For instance, Sen. Nia Gill (D-Dist. 34) has proposed legislation similar to Michigan’s, banning the use of eminent domain on residential properties to make way for private development.
Another technique many state legislatures are turning to is one employed by Georgia and Ohio, simply imposing a moratorium on all condemnations for private development. A similar bill is among those awaiting action in our legislature.
Even the U.S. House of Representatives has acted, passing the Property Rights Protection Act of 2005, which denies federal economic development funds to local governments that use eminent domain for private purposes.
How much protection New Jersey property owners will ultimately see is still very much dependent on the legislative process.
Ronald Fraser, who writes for a civil liberties watchdog in Washington, suggests the kinds of legislation that would protect homeowners. Require state and local governments to show a public purpose and to prove that the property to be condemned is really blighted. Afford property owners the chance to rehabilitate their “blighted” property before it can be seized. Return the property to the former owner if it is not used for the purpose for which it was taken.
The enactment of a law which provided these common sense protections would certainly allow New Jerseyans to sleep better.
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