Read about eminent domain cases
The Department of the Public Advocate, Division of Public Interest Advocacy, has filed “friend-of-the-court” or amicus briefs in several eminent domain cases to help vindicate the rights of individual property owners.
The Public Advocate briefed and argued this historic eminent domain case before the New Jersey Supreme Court. In a unanimous ruling, rendered June 13, 2007, the court ruled that towns cannot condemn property unless the area is deteriorated or stagnant and harmful to the surrounding community, effectively limiting the use of eminent domain for private redevelopment. Only to blighted areas, as required by the N.J. Constitution. The Public Advocate himself argued the case before the court on April 26, 2007. LBK Assocs. v. Borough of Lodi On July 24, 2007, the Appellate Division held that the town of Lodi did not make a record sufficient to justify the taking of two trailer parks and other small businesses along Route 46.
Harrison Redevelopment Agency v. DeRose 398 N.J. Super. 361 (App. Div. 2008)_ In early 2008, the Public Advocate filed an amicus curiae brief and argued in the Appellate Division in cases involving three property owners in Harrison. Harrison had designated one-third of the town’s total acreage as an area in need of redevelopment, hoping to transform it into an upscale neighborhood for commuters who would ride to work in New York City on the PATH train that stops adjacent to the redevelopment area. The proposed redevelopment includes hundreds of residential units, thousands of square feet of commercial space, and a soccer stadium. As the redevelopment progressed, the town moved to condemn a variety of small businesses, including a truck tire repair shop, a used car dealership, and some industrial properties. Defending their properties from condemnation, the business owners tried to challenge the blight designation. Citing a court rule that allows 45 days for litigants to challenge municipal actions, the trial court held that the owners were out of time to object to the ten-year-old designation. In February, the Appellate Division reversed the trial court in a published opinion in Harrison Redevelopment Agency v. DeRose. Adopting arguments the Public Advocate had advanced, the court held that the business owners were entitled to clear notice and a fair hearing before the municipality took their property for redevelopment. The court thus reinforced the constitutional principle that the “government has an overriding obligation to deal forthrightly and fairly with property owners.” The Public Advocate himself argued the case before the Appellate Division on February 4, 2008. The Harrison decision makes clear that a property owner retains the right to challenge a blight designation until the last stages of the redevelopment process when the municipality exercises its power to condemn the property through eminent domain. The Town of Harrison, like many other municipalities around the State, had argued that property owners lose the right to make such a challenge years before the condemnation, within 45 days after the municipality declares the area to be blighted or “in need of redevelopment.” Harrison made this argument even though, as the court found, Town officials had “downplayed any potential negative consequences of a redevelopment designation, and discouraged residents from mounting a challenge to the redevelopment initiative at that time.” If a municipality wants to settle the legality of a blight designation earlier in the redevelopment process, the court held that constitutional principles of due process demand that it provide individualized written notice to all owners in the targeted area. That notice must inform the owner that (1) his or her property has been designated for redevelopment, (2) this designation authorizes the municipality to take the property against the owner’s will, and (3) the owner has 45 days to challenge the designation in Superior Court. Only owners who receive such notice may lose the right to challenge a blight designation later in the process, and even in such cases, the courts may exercise their discretion to extend the time “in the interest of justice.” This decision will change the process by which owners may be forced to sell their property to the government. The ruling applies to any challenge to eminent domain that is still active in the court system, and could lead to reopening disputes over blight designations in other pending cases.
Our brief argues that a remand (return of the case) to the trial court is necessary to vindicate the homeowners’ right to procedural due process because the current, incomplete record contains no proof of adequate notice, no indication that the homeowners received a fair hearing, and some evidence of potential conflicts of interest that warrant additional discovery and fact-finding. We argued also that the record evidence of blight is insufficient to sustain the municipal decision to demolish the neighborhood. Deputy Public Advocate Brian Weeks argued the case before the Appellate Division on May 14, 2008.
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