December 11, 2006

Thank you Mr. Chairman and members of the Committee for this opportunity to testify.

I commend the Chairman and this Committee for not only tackling the important issue of eminent domain reform, but engaging in public hearings around the state and soliciting important feedback from the people of New Jersey.

As you know, the first major initiative of the newly reconstituted Department of the Public Advocate was to examine the use of eminent domain for private redevelopment in New Jersey.

Our research left no doubt that the laws governing the use of eminent domain for private redevelopment must be reformed.

Our report also concluded that such reforms must strike a balance so as not to undermine the type of positive redevelopment that many areas of New Jersey so desperately need.

We believe that Assembly Bill 3257 struck this balance and we support that legislation.

We have not yet had time to fully analyze the latest version of S-1975 in great detail, and we appreciate the fact that it is still a work in progress.

Based on our initial reading, it seems to contain some crucial reforms that will help protect the rights of businesses and homeowners. 

I want to commend the Chairman and this committee for these reforms, which include:

·         Requiring greater notice, more public hearings and more public participation. 

·         Expanding the ability to designate areas “in need of rehabilitation,” allowing municipalities to revitalize certain areas without the threat of eminent domain.

·         Recognizing the importance of increasing compensation, particularly for tenants, in the rare instances when eminent domain is used.

In my testimony today, however, I would like to discuss two areas of the bill where we have some concerns based on our initial reading.

Definition of Blight

Our report made the case that the current statutory definition of blight was so broad and subjective that it ceased to provide any real limitations on the use of eminent domain for private redevelopment, as the Constitution requires.

S-1975 makes some changes to tighten up the definition of blight, but we still have serious concerns about the inclusion of language that is vague and subjective.

The definition of blight in this bill contains terms such as “faulty arrangement or design,” “lack of proper utilization” or open-ended phrases like “or other factors.”

This type of language is so vague and flexible that it seemingly could apply to any land that a municipality decides it has a better use for.

Exactly how the blight definition proposed in this bill would work in practice is something that requires further analysis than we have been able to do so far.

But let me be clear about our position on this issue – to protect the rights of homeowners and business owners, the definition of blight must be as clear and objective as possible, and must provide a real limitation on the ability of a town to use eminent domain for redevelopment.  

Burden of Proof and Standard of Evidence

We also believe it is essential that when a blight designation is challenged in court the burden of proof lies with the municipality to show by a “preponderance of the evidence” that the blight designation is valid.

This position stems from a simple premise – before the government takes a person’s home or business that person deserves one real chance to challenge this decision before an impartial third party.

Under the current law, courts give such deference to the municipality’s blight determination that a citizen does not, effectively, have a real chance to appeal that determination.

For almost all other municipal actions I believe it is appropriate to give such deference to local governments, but this isn’t just any municipal decision – it is the taking of someone’s property, and there is a Constitutional right at stake.

It is, after all, the town – not the citizen – that holds the evidence to justify the blight designation.

And if the town has followed the law, particularly given the procedural improvements proposed in these reform bills, meeting this burden of proof should not be difficult.

Moreover, the municipality would benefit from this change because it would create more certainty in this process – if the citizens have one real shot at the beginning of the process to appeal the blight determination, then courts will no longer feel the need to re-open these cases years down the line, as happens under the current system.

Shifting the burden of proof and changing the standard of evidence will not lead to an explosion of litigation; it will simply even the playing field so that citizens have a real opportunity to appeal before government can take their home or business.

We hope the final version of this bill will include explicit language that shifts the burden proof in court squarely to the municipality.  And we hope the standard of evidence will be changed to “a preponderance of the evidence,” so that if a person’s property is taken there will be no doubt that it was done appropriately.

I look forward to working with this committee as this bill is drafted to ensure that it adequately protects the rights of tenants, homeowners and businesses.

Let me once again thank the Chairman and members of this Committee for this opportunity to testify.

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