What is 'eminent domain?'
The U.S. Constitution's Fifth Amendment currently allows the government to force a private person or business to sell their land so it can be put to "public use." Under this government power, known as eminent domain, property owners must be given "just compensation."
The Supreme Court last addressed the issue in 1954, allowing private property to be seized in blighted neighborhoods or communities. The government generally used the power in order to eliminate slums or to build highways, schools, airports, or other public works.
Since then, lower courts lessened the burden for the definition of "public use" and have ruled that the mere opportunity to create jobs or generate tax revenue is enough to apply it. In recent years, cities have become more ambitious and aggressive, creating "redevelopment areas" where land has been taken for parking lots, big box department stores, casinos, residential housing, and other revenue-generating businesses.
In New London
New London, Conn. is a town of about 26,000 that once was an industrial and manufacturing hub. But in recent years, the city has suffered an economic downturn. The result has been high unemployment rates and sweeping poverty.
City politicians believe that private development will generate tax revenue and improve the local economy. They have proposed a redevelopment area that would include commercial development on the Thames riverfront, a Pfizer Corporation research center, and a Coast Guard museum.
But an established New London neighborhood would need to be razed. It's a community that includes Victorian-style houses and small businesses, some of which still are viable and have been there for generations.
A recent study by the property rights group Institute for Justice, which is representing the New London homeowners in court, found that in about 10,000 cases from 1998 to 2002, local governments in 41 states, including New Jersey, have used or threatened to use eminent domain to transfer home and properties from one private owner to another.
"This case will determine whether government officials and big businesses have a blank check to condemn homes and small businesses for private development," said Scott Bullock, senior attorney for Institute for Justice, in a brief to the Supreme Court. "If the 'public use' requirement of the Constitution means anything, it means that the government may not take a person's home only to give that land over to another private party who may employ more people and produce more tax revenue."
Dana Berliner, an Institute for Justice senior attorney and co-counsel in the case, added, "Eminent domain abuse is a nationwide plague. The Supreme Court must place firm limits on the government's power to take private property for private gain."
The Supreme Court is expected to rule by June.
A local angle
Over the past decade, politicians and city planners throughout Hudson County have used redevelopment law to develop large portions of the county. Redevelopment, according to state law, is a zoning term that means there is an area within the municipality that is not being used to its full potential. Designating a redevelopment site can mean special zoning. It can also mean allowing the developer to get tax abatements or make special in-lieu-of-tax payments.
It doesn't always mean that the government will need to take homes in that area, but it happens at times. Redevelopment means the governing body can pool a large area of property together, even if the land is owned by multiple owners, and then zone the property as they wish. If they want to buy some property, they can resort to eminent domain.
In JC, UC, and elsewhere
There are cases of eminent domain throughout Hudson County, such as the proposed redevelopment at Journal Square in Jersey City, the Westside Avenue Redevelopment in Jersey City, and the Powerhouse Arts District in Jersey City.
In Union City, the Board of Education is considering using eminent domain in order to build new school buildings, although this is a public use so it probably would not apply to the specific Supreme Court case.
In Hoboken, there is a battle brewing over creating an 11-acre redevelopment swath along the city's west side. Mayor David Roberts has proposed creating an area where developers Tarragon and URSA Development would pay to build about 5.5 acres of open space and a community center with a pool. In return, the developer would get significant "up-zoning" on the rest of the property to build dense high-rise market rate apartment buildings. Even with the open space, it would be a profitable venture for the developer.
Currently URSA/Tarragon owns or is in contract to buy about 63 percent of the property in the proposed area. If the redevelopment plan is approved by the City Council, they would have to negotiate with the remaining landowners. If those property owners don't wish to sell, then the City Council could take the land for "just compensation" by condemnation.
Roberts, who has supported the plan, said that the park space and community center represent a clear public good. He also has pointed to the city's new master plan, which encourages the use of a redevelopment area to create open space.
Roberts added that redevelopment has been a positive thing for Hoboken. It has been done on the city's south waterfront and in the formerly industrial northwest, where URSA will build homes and the Board of Education will build new schools.
There are critics
Critics say the state's definition of what sort of land is suitable to be condemned for redevelopment is vague and ripe for abuse. They say any property can be blighted for reasons including being substandard, unsanitary, dilapidated, long-vacant, obsolete, not fully productive, damaged by fire, or any number of other challenges. With such discretion, they said, the government can hand other people's property to deep-pocketed developers, including political contributors.
Hoboken Councilwoman Carol Marsh, who is running against Roberts for mayor, said, "No one has even approached the owners to see if they want to develop their land. Instead we just give it away to URSA. What we are doing is up-zoning the land and not allowing the property owner to participate in the development."
She added that the ones who are hurt most are those private citizens who have owned property, some for decades, that don't have the legal or financial resources to fight big-time developers.
This is one of the arguments currently being made in the Supreme Court case. Jane Jacobs, one of the originators of "new urbanism" and the author of The Death and Life of Great American Cities, submitted a brief before the court that stated, "The costs of development takings are disproportionately inflicted on poor and minority communities because these groups are disadvantaged in the political process, especially relative to the powerful corporate and private interests that benefit from...condemnations."
In Bayonne, the city leaders want to create a redevelopment area in a section of the city's Broadway Corridor in order to revitalize the downtown area. The plan would cover East 19th to East 21st streets between Avenue E and Broadway.
City Planner John Fussa has said that city had tried to attract redevelopment for the area by rezoning the district during the updating of the city's master plan in 1999 to 2000, but except for one project, no new redevelopment occurred.
Planning Board Member and Bayonne 1st Ward Councilman Ted Connolly said while the city is willing to work with owners in the area, the end result could eventually lead to the city condemning the property by eminent domain.
Mary Divock, president of the Town Center Management Corporation, has offered her support of the move because it will spur economic development in an area that could use revitalization.
"This is vital for Broadway and beneficial for all," she said recently. "We want people to stay in town. We don't want the center of town to turn into a ghost town."
But is that reason enough to relocate people out of their homes or businesses?
Jim Scott, one of the 20 property owners in the area, is concerned about the tenants in his apartment buildings, many of whom are elderly and poor, who will not likely find accommodations for less than $1,000 per month if put out of their existing homes. Some apartments in the area are rent-controlled.
This is just one example of several proposed redevelopment areas in Bayonne that could be affected if the Supreme Court were to make a ruling in the New London case.