| Eminent domain, once for public
good, tested for private gain
April 26, 2003 By Steve Strunsky Associated Press Writer Newark, New Jersey - Orlando Santiago paused from repainting a white Ford Focus, one of a dozen damaged cars at Market Body Works. "We do police cars, firemen's cars, even PSE&G," said Santiago, 34, a father of two, who is among 10 employees at Market Body, which was founded as a blacksmith's shop by the owner's great-grandfather in 1913. But the shop's future and Santiago's livelihood are on a collision course with plans by the city to condemn Market Body's lot and several others to build condominiums. The property owners would be paid market value for their real estate, but some say the less tangible assets of their businesses, homes or lives would be lost. The plan is one of several cases in New Jersey in which a municipality is seeking to exercise its so-called power of eminent domain to seize private property and use it for what officials believe is the good of the community. Eminent domain, an authority that dates back to the Middle Ages as part of English common law, traditionally has been used to build schools, roads and other public necessities. But property rights advocates say New Jersey is at the forefront of a trend in which local governments have been trying to expand their power of eminent domain for the benefit of private interests. "In essence, you're getting a developer who's getting power of condemnation," said Anthony Della Pelle, a lawyer who specializes in eminent domain cases. "It's really using laws to take property that doesn't need to be taken." One of Della Pelle's recent cases involved the Flamingo diner in Jersey City, where officials had sought to condemn it for a road widening project to accommodate thousands of workers in the city's waterfront financial district. This month, however, city officials dropped their plans in the face of 10,000 signatures gathered in support of the beloved eatery -- a strategy [that] critics of condemnation say is among the most effective at combating the process. The Newark project that would displace the auto body shop would even more directly benefit private interests, in that the city would turn the condemned property over to private developers. There are similar cases in Harrison, Asbury Park, Camden, Englewood, West Orange, Perth Amboy, Edgewater and elsewhere. If officials use the power of eminent domain, officials must first appraise the desired property and make an offer. If rebuffed, a declaration of taking is filed in state Superior Court, and the dollar value of the appraisal is deposited with the court. Three court-appointed condemnation commissioners then decide the value of the property, which the property owner can reject. If so, a trial is held in which a judge or jury determines whether the condemnation is justified, and if so, the value of the property. A 1998 case out of Atlantic City pitted an elderly homeowner, Vera Coking, and two small-business owners against Donald Trump and the state Casino Reinvestment Development Agency. The state Supreme Court ruled that the redevelopment agency could not seize three lots to allow for an expansion of the Trump Plaza parking garage, even if, as the agency asserted, it would lead to increased state casino tax revenues. "The people who are usually affected are usually middle-income homeowners in older, well-established neighborhoods, or small business owners. Those are the people who usually get taken," said Dana Berliner, a lawyer for the Institute for Justice in Manhattan, who represented Coking. On Tuesday, Berliner's group released a five-year study titled "Public Power, Private Gain," critical of what it said has been a nationwide trend in which the power of eminent domain has been increasingly harnessed for private interests. The report called New Jersey "a hotbed of private condemnations and attempted condemnations," adding that, "New Jersey Courts have largely gone along with these condemnations, although there are some signs that the courts intend to impose at least outer limits." Legal experts say the power of eminent domain has been part of Western legal systems since the Middle Ages under English Common Law. The power is also embodied in the both the state and U.S. Constitution -- the Fifth Amendment guarantees not only for the right to remain silent, but also the right to just compensation for property taken by the government. There is also a state statute that lays out condemnation proceedings for public projects. The more recent New Jersey Local Redevelopment and Housing Law of 1992 authorizes condemnation for the purpose of private development. William J. Kearns, general counsel for the New Jersey State League of Municipalities, said local officials wield the power of eminent domain only as a last resort. Kearns said officials would much rather reach negotiated settlements with property owners on compensation for their property, or in the case of private redevelopment projects, let the developer strike a deal. When a deal can't be reached, Kearns said, the power lets governments move ahead with projects benefiting a majority of constituents. In the most difficult cases, Kearns and other advocates of eminent domain conceded, property owners are defending their homes or current and future livelihoods. But sometimes, owners are motivated by greed or vindictiveness, he said. "You can always find the exception that creates the horror story -- 'Oh my God, how can you do this!"' -- and some condemnations are simply not justified, Kearns said. "Obviously, every single case where eminent domain gets used sort of stands on its own." Copyright © 2003, The Associated Press --eminentdomain0426apr26,0,2222673.story%3Fcoll%3Dny-ap-regional-wire&e=6251 |