Boro's new eminent domain law under fire

EATONTOWN — An ordinance limiting the borough's eminent domain powers has been criticized by borough residents and Mayor Gerald Tarantolo, who say the measure does not do enough to protect property owners.

The ordinance, which was passed by a 5-0 vote at the Borough Council's Sept. 9 meeting, restricts the council's ability to use its power of eminent domain to take a private, occupied residence for the financial gain of a third party. Councilwoman Victoria Rau abstained from the vote.

While residents approved of the intent behind the ordinance, at least one resident said its execution and wording were not enough to protect homeowners.

"I appreciate that the council is addressing this issue of significant concern to private-property owners; however, my perception of this legislation is that it is minimalist and covers limited circumstances — in fact, only one circumstance," resident Sarah Breslow said during the meeting.

"It looks good on the surface, but it leaves huge loopholes. Is its intent to leave loopholes?" she asked.

According to Breslow, while the ordinance names the one instance in which the borough would not use eminent domain, it does not name the instances in which it could use the power.

"The point of passing an ordinance like this is to clarify the circumstances under which the town will invoke eminent domain, not just state one circumstance when it will not," Breslow said.

"Eminent domain is a municipality's power to take or acquire private property and put it to public use, a use that will benefit the entire community. The key phrase in that explanation is 'public use.' What is Eatontown's definition of public use? This is not stated in this. Other municipalities specifically define this," she said. The council first began discussing taking action on an anti-eminent domain ordinance when Breslow brought the matter to the council several months ago.

At the time, council President John Schiels agreed that the measure would be worth exploring. Successive meetings resulted in the council fleshing out the details of the ordinance, with its third and final reading and adoption coming at the Sept. 9 meeting.

According to the ordinance, "No legally occupied residential dwelling located within an 'area in need of redevelopment' designated in accordance with the Local Redevelopment and Housing Law … that conforms to all applicable borough housing and maintenance codes shall be taken by the borough, or any of its agencies, boards or commissions by eminent domain for conveyance to another private party for the purpose of economic development."

In her critique of the ordinance, Breslow said the council took a backdoor approach to the issue.

"This doesn't say only in specific circumstances will this policy be invoked. Instead of coming in the front door, it comes in the back door by stating this is the one case in which eminent domain won't be invoked. And it makes a big point of stating that legally the town has every right to do it. That's not very reassuring," Breslow said.

"I'm not sure this policy covers all of the circumstances in which I want to be protected. That sounds like weasel words," she added.

Breslow pressed Borough Attorney Andrew Bayer, who crafted the ordinance, stating, "Since Mr. Bayer expressed such apprehension at the town giving up such power, and he crafted this proposed ordinance, it appears very deliberate and raises some concerns.

"I recommend going back to the drawing board for a more inclusive, straightforward approach," she added.

Tarantolo also expressed his disappointmentwith the ordinance, saying that he agreed with some of the concerns raised by Breslow.

"I'm going to be honest, Andy. I read this and I didn't really understand it or feel comfortable with it," Tarantolo said.

"The fact that we use terms 'residents be free of any concern no matter how remote' [is] very difficult to translate into something very specific.

"I don't know the legalese involved with eminent domain. I'm familiar with the Kelo case; I've seen eminent domain used by municipalities and, quite frankly, I didn't always agree with using eminent domain to transfer property from one individual to another for the purposes of financial gain," Tarantolo said.

"I didn't see any of that in this ordinance and the policy statement that this is supposed to reflect. I agree with a lot of what you said, Sarah," Tarantolo added.

Heard before the U.S. Supreme Court in 2005, the Kelo v. City of New London case set legal precedent for allowing municipalities to take private property located within a designated redevelopment zone through eminent domain and transfer it to another private party for economic development.

Locally, neighboring Long Branch has been challenged in court for using eminent domain to condemn private homes with the properties slated for private development.

Bayer responded to Breslow and Tarantolo, saying he did not understand Breslow's accusation .

"The Kelo case is a redevelopment case, so let's start there. So the concept was this borough wasn't going to use eminent domain power to transfer a house from one person to a business so they can further economic development, which is what happened in Long Branch, I believe. So those were the concepts I attempted to embody," Bayer explained.

"Clearly under the law, any municipality can exercise eminent domain power to widen a road or build a school, and under the law they have to provide reasonable compensation, fair market value … assuming a court finds there's a public purpose.

"So in my own view, it's not necessary to say when you are going to exercise eminent domain," he continued.

"I thought the purpose was to limit it so that you weren't taking somebody's house so somebody could go build a strip mall … or build new fancy housing to replace old housing, which you can do under the redevelopment law under the right circumstances. I mean … we could write it any way anybody likes," Bayer said. Breslow continued to question Bayer, asking how he developed the ordinance and what if any template he used.

"We looked at all of the ordinances that were done … those were analyzed and reviewed, and then my office put together something that was presented and discussed here at two prior … public meetings," Bayer said. "That's the beauty of being a lawyer: we all get to be creative and write and do our own thing."

Like Breslow, resident Anthony Talerico also questioned how Bayer developed the ordinance, and suggested holding it for further discussion.

"I think everyone wants the same thing, but maybe the wording is different. So, I don't think that the bulldozers are coming in and taking anyone's houses now, so maybe we wait a month, approve it later," Talerico said.