Public Advocate Argues in Harrison Eminent Domain Cases, 01/10/08
PUBLIC ADVOCATE ARGUES IN HARRISON EMINENT DOMAIN CASES: Provision of Redevelopment Law is Unconstitutional TRENTON, NJ – Public Advocate Ronald K. Chen today announced he filed an amicus curiae brief in the Appellate Division of the Superior Court that argues that a key section of the state’s current redevelopment law is unconstitutional. Chen said state law does not give property owners any meaningful opportunity to challenge a town’s plans to take their property because they may not know whether their property is actually targeted for condemnation until years after deadlines under the statute have expired for them to take legal action. “Under our current law New Jersey residents can lose their property without adequate notice that their property will be taken and without a hearing,” Chen said. “This case demonstrates why the current law fails to satisfy the due process requirements of the federal and state constitutions.” The brief was filed in eminent domain appeals brought by three Harrison business owners. READ THE PUBLIC ADVOCATE'S HARRISON AMICUS CURIAE BRIEF Under the New Jersey Constitution, local governments can take private property for redevelopment only in blighted areas. The Supreme Court has ruled that this constitutional provision limits the reach of the statute and for a municipality to declare an area blighted, that area must be deteriorated or stagnant and harmful to the surrounding community. Under the current Local Redevelopment and Housing Law, however, a property owner loses the right to challenge a blight designation unless he files written objections with the town planning board and then commences a court action within 45 days after the municipal governing body approves the designation. The municipality is not required to give individual notice to property owners that it is designating the area as blighted or that this designation authorizes the use of eminent domain. Nor is the municipality required to inform owners when it definitively decides to acquire their parcels. Chen said the facts in the Harrison cases vividly demonstrate the fundamental unfairness of the process under current law. In 1997, the Harrison Planning Board determined the area in question was blighted and designated it as an “area in need of redevelopment.” But when the Planning Board conducted the required public hearing, it distributed only glowing information about the benefits of redevelopment and indicated that it would not engage in discussion with property owners about how their properties might be affected. Instead, the Planning Board attorney told members of the public that the Board’s action would not affect their property rights. When citizens asked to see the redevelopment plan that the Board was considering, they were told they could not see the plan while the Board was in the process of deciding whether or not to adopt it. The Town Council then adopted the Planning Board’s recommendation to designate approximately 30% of the town’s total area as “blighted” and therefore “in need of redevelopment.” From that point forward, opponents had only 45 days under the law to initiate legal action opposing the local government’s decision. Even a year after the blight designation, when Harrison officials approved a redevelopment plan in 1998, the town still did not identify any specific properties that it intended to take through eminent domain. It would be another six years before any of the three property owners received formal notice that the town planned to condemn their properties. “When the property owners tried to object years later to defend their properties from condemnation, the trial court in Hudson County ruled that they were out of time,” Chen said. “This 45-day clock runs regardless of whether a property owner has notice that the municipality intends to acquire his particular parcel by eminent domain. That defies fundamental principles of fairness.” “Property owners should not be put to the task of guessing the municipality’s intentions. Any uncertainty on this issue is generated by the municipality itself, and the municipality may dispel it by the simple device of stating its intention with clarity,” the brief argues. The Public Advocate contends that the 45-day period should not begin to run until the property owner is notified that the town plans to take his particular property. The Public Advocate also argues that the statute violates the separation of powers doctrine because it effectively imposes procedural barriers that prevent property owners from raising constitutional objections to a local government’s action. In matters in which citizens challenge government actions, the Public Advocate argues, the New Jersey Constitution clearly gives the Supreme Court the exclusive power to determine how and when such actions are brought. Background: Advocating for Eminent Domain Reform For the past 18 months, the Public Advocate has been engaged in efforts to reform New Jersey's redevelopment law. We aim to prevent abuses and curb inappropriate uses of eminent domain for the purpose of taking property from one private owner to transfer it to another for redevelopment. The Public Advocate also has worked toward reforms to the redevelopment process to ensure that citizens are treated fairly and receive adequate compensation and relocation assistance if they are displaced by redevelopment. Through extensive research and outreach, the Public Advocate has found that property owners are vulnerable to abusive practices because of significant problems in the procedures municipalities use when private property is potentially slated to be condemned so it can be turned over to private redevelopers. The Department published two reports outlining concerns with current law and practices: In Need of Redevelopment: Repairing NJ's Eminent Domain Laws, May 2007 Reforming the Use of EminentDomain for Private Redevelopment in NJ, May 2006
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