Voters should decide issue of eminent domain

Joseph W. Hottendorf
Guest Column

In June, the U.S. Supreme Court issued an opinion redefining and expanding this country’s law of eminent domain. Since that decision, I have been monitoring the press’s efforts to inform the state’s property owners of the serious implications this decision will have on them. Newspapers like yours and the media as a whole across the state have a responsibility to continue to inform our residents and ask candidates for public office and those already in office the tough questions as they apply to eminent domain. Let me explain.

The Supreme Court’s decision was by no means unanimous (5-4). Justice Sandra Day O’Connor was one of the dissenting votes. Justice O’Connor expressed fear the court was abandoning its long-held basic limitation of government power and that under the banner of economic development, all property can now be taken and transferred to another owners as long as it will be used in away the taking authority feels is more beneficial to the public. Justice Clarence Thomas was even more empathetic in his opposition. He said if economic development takings are a public use than any taking is and the court has erased the public use clause from the Constitution.

We should be leery when we hear or read about local officials saying they will use eminent domain as a “last resort.” What we’ve seen is last resort translates to taking property when owners refuse to move voluntarily.

New Jersey legislators will try to downplay the Supreme Court’s decision, saying it didn’t change the law. The scary thought is they would be right. Government in New Jersey uses state statutes more and more every year and, in doing so, ignores the New Jersey Constitution. The current rationale of economic development in New Jersey — less profitable uses can be taken for more profitable ones — goes against everything this nation has stood for the last 225 years. It eliminates the American dream of owning your own small piece of this nation without fear of having it taken away.

Currently in New Jersey, government can take anyone’s property as long as it is for a “public purpose.” Both United States and New Jersey Constitutions still read that can be done only when the property will be put to “public use.” Article V of the U.S. Constitution states “ .… nor shall private property be taken for public use without just compensation.” New Jersey’s Constitution states “public use,” even though the legislature changed the statues to read “public purpose” starting in 1971, creating a conflict between the two.

It was Justice Kennedy in a concurring opinion who noted it would be up to each state to amend its statutes to conform to its constitution. In New Jersey, since 1971, our legislators have amended our statutes so they no longer conform to our state’s Constitution as it relates to the powers of eminent domain. We, as Realtors, agree with Justice Kennedy that each state should review its statutes.

What is needed is for the state’s statutes to be amended back to their original form, eliminating the public purpose verbiage for the taking of private property. Unfortunately, this action will need our state legislators to act. We need our free press to continue to inform the residents of the fundamentals of this issue. The articles and editorials appearing in your publication to date on this extremely important matter have not asked the tough questions of our elected officials. There are only two questions we believe needed answered. All they requires is yes or no answer from our legislative and gubernatorial candidates. They are:

1. Are you willing to work toward amending the state statutes in New Jersey so they again will confirm to the state’s constitution?

2. Are you willing to propose an amendment to Article 1, Section 20 of the state’s constitution so private property may only be taken for public use?

It was the voters in New Jersey who decided the eminent domain issue when they approved the state’s constitution. It should only be the voters who have the right to amend our state constitution, not our legislators through statutes. As it stands right now, local officials are becoming more aggressive in taking an individual’s property to give to their politically connected developers.

Joseph W. Hottendorf is the executive vice president of Liberty Board of Realtors, Secaucus