Bulldoze First, Answer Questions Later: A New Jersey Ruling Invites Eminent Domain Abuse

Jacob Sullum
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Posted: Nov 19, 2014 12:01 AM

Two years ago, New Jersey's Casino Reinvestment Development Authority (CRDA) approved something called the South Inlet Mixed Use Development Project, which was intended to "complement the new Revel Casino and assist with the demands created by the resort." Two months ago, the bankrupt Revel Casino closed.

The CRDA nevertheless is still trying to condemn a three-story brick house at 311 Oriental Avenue in Atlantic City as part of that Revel-inspired project, the details of which remain vague. In fact, the CRDA can't even say what it plans to do with the lot on which the house sits.

That's OK, according to Superior Court Judge Julio Mendez, who on Monday ruled that the CRDA may condemn first and answer questions later. The ruling shows that no one's property is safe when eminent domain becomes unmoored from the "public use" that is supposed to justify it.

The CRDA offered Charlie Birnbaum, a 67-year-old piano tuner, $238,500 for the house on Oriental Avenue, which his parents bought in 1969. But Birnbaum, who has a piano repair workshop on the first floor and rents the two other floors to longtime tenants, has a strong sentimental attachment to the place and does not want to part with it.

"This court acknowledges and empathizes with the Birnbaums' desire to keep this family-owned property," Judge Mendez wrote in his decision on Monday. But given the CRDA's "broad" powers, he said, the agency is entitled to "deference" when it covets someone's land. In other words: Since the legislature told the CRDA to promote tourism and that is what the CRDA claims to be doing, who am I to interfere?

To which Birnbaum's lawyers at the Institute for Justice reply: You're a judge, which means you are charged not only with interpreting statutes, but also with enforcing the limits that the U.S. and New Jersey constitutions impose on them. One of those limits is the requirement that condemned land be used for a public purpose, which means nothing if it can mean anything.

According to the New Jersey Supreme Court, property cannot be condemned for redevelopment unless it is "blighted," and the CRDA makes no such claim about Birnbaum's house. The U.S. Supreme Court has approved condemnation of unblighted property for economic development, but only in the context of a "comprehensive" plan adopted after "thorough deliberation."

The CRDA's South Inlet Mixed Use Development Project, which Birnbaum's lawyers describe as "a vague notion rather than a specific plan," hardly seems to qualify. Even if the project serves a legitimate public purpose, the CRDA cannot show that Birnbaum's property, which juts out like a thumb from the periphery of the project area, is "essential" to the plan, as the agency claims and New Jersey law requires, especially since it cannot say what will replace the house.

"CRDA isn't taking Charlie's property because they need it for anything," says Institute for Justice senior attorney Robert McNamara. "They're just taking it because they think they can get away with it."

Mendez seemed untroubled by this fuzziness. "The Court agrees with the CRDA's position that they are not required to produce plans identifying specific uses or structures for the property," he wrote.

If so, how can anyone be confident that whatever ends up happening on the lot will serve a public purpose? Mendez's ruling, McNamara says, "means that (the CRDA) can take any piece of property in Atlantic City, anytime they want, for any reason or for no reason. The idea that any government entity can be trusted with that level of power is appalling."

Birnbaum plans to appeal, and the condemnation of his property is on hold in the meantime. But he cannot keep the bulldozers at bay unless he finds some judges who are less deferential to the CRDA's arbitrary demands. As Institute for Justice President Chip Mellor observes, "The only thing that stands between the people of New Jersey and this kind of unprincipled government theft is an engaged judiciary."