Eminent domain still threatens private homes

December 17, 11:31 AMCivil Liberties ExaminerJ.D. Tuccille

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The use of eminent domain for "economic development" -- involving the seizure of homes and businesses by government, which then transfer the properties to private developers -- elicited a brief moment of outrage in 2005. That's when the U.S. Supreme Court decided, in Kelo v. New London, that such abuse-laden arrangements were a perfectly legitimate use of the government power to take private property for public use, so long as somebody cuts a check to the owners. Angered by the court's decision, people and legislators pushed for state and local limits on eminent domain power of varying degrees of efffectiveness. And then ... well ... then the matter died.

But the abuse of eminent domain didn't die. Some measures -- the one in Arizona, for instance -- imposed well-written strictures on government officials. Others, though, were either poorly crafted or else deliberately structured to defuse anger without restricting government officials. Californians, for example, passed over a good measure in favor of one that accomplished very little.

And some states never even pretended to impose limits on eminent domain. Those states included New Jersey.

In Long Branch, New Jersey, a battle over a particularly egregious "economic development" land-grab has waged for years. The city government there wants to boot middle-class families from their modest oceanfront homes because, wouldn't you know, connected developers want to construct condos for the well-heeled, which would generate a rich flow of cash for city coffers.

Normally, this would just end badly, and quietly, as most homeowners surrendered and accepted what government officials have to offer rather than wage an uphill fight. But property owners in the Marine Terrace, Ocean Terrace, Seaview Avenue (MTOTSA) area banded together to push back, and they brought in the Institute for Justice to take on their case.

The two sides are now in court-ordered mediation after an appellate-level finding that the land-grab is illegal, but that the matter should continue to be dickered over before a judge.

What appears to be developing now if a face-saving effort by Long Branch officials to back away from the use of eminent domain in this case, but to retain it as a weapon in the future when the public-interest law firms have gone home and the neighborhood activists have returned to their family concerns. According to the Asbury Park Press:

After a second session with MTOTSA members Thursday night, Mayor Adam Schneider said Friday he continues to believe the case can be settled in a way that does not use eminent domain.

However, what eminent domain opponents likely will not see is the adoption of what certain group members and Councilman Brian Unger have labeled "Protecting the American Dream Ordinance," which would require the City Council to agree not to use eminent domain to acquire private property that would be transferred to another private owner.

The proposal, championed earlier this year by Unger and his private attorney, Jeff Williams, stalled, but MTOTSA member Denise Hoagland said the council's adoption now would give the affected homeowners more than the word of officials that eminent domain won't be used in their community.

Council President Michael DeStefano said he cannot support the ordinance because it makes certain assumptions that redevelopment is not a proper reason for exercising eminent domain.

Well, yes. The homeowners do contend that "redevelopment is not a proper reason for exercising eminent domain." Accepting it as grounds for land-grabs opens the door for any home or business to be seized if somebody else proposes to replace it with a larger house or a more profitable venture. Everything is up for grabs.

Which is the option that politicians want to preserve for the future.

But Long Branch residents are rightfully concerned about their own homes and businesses first, and it looks like they're going to win that battle. The final defeat of eminent-domain abuse will have to be left to the future.

For them and for us.
  

Contact J.D.: civilliberties (at) tuccille.com