Kinder, gentler redevelopment?

Eminent domain is a good tool, say two planners, but a flawed one

Monday, January 23, 2006
By STEVE CHAMBERS, Star-Ledger Staff

Star Ledger Op-Ed, Jan. 23

Over the past decade, as officials in Harrison discussed ways of turning the town’s derelict factories beside the Passaic River into upscale residential development, Jerry Fernandez remained optimistic.

He and his brother, Michael, already had an affluent clientele at The Spanish Pavillion, the restaurant their grandfather founded near the waterfront 30 years earlier.

"The way the politicians made it sound, there were going to be wonderful opportunities," Jerry said. "I thought redevelopment was good for everyone in the community."

But it turned out The Spanish Pavillion was not part of the plan. Even as developers complete a hotel and rows of condominiums only blocks away, long-range plans call for leveling the restaurant and putting up office towers.

What is happening to the Fernandez brothers is part of a slow-moving wave that began in New Jersey and elsewhere in the early 1990s. An increasing number of towns are using their powers of eminent domain to take private property and hand it to private developers working on large-scale redevelopment projects.

Supporters argue, with reason, that the practice has transformed old, industrial New Jersey into a landscape better suited to the high-tech, modern economy that is the state’s future. Even they concede, though, that the practice sometimes goes awry.

"These are powerful tools that must be used carefully," said Stan Slachetka, a planner with T&M Associates in Middletown. "There should be an opportunity for business owners, who have hung in there through the hard times, to find a place within the new construction."

Slachetka isn’t speaking in the abstract. He -- and David Roberts, another planner, now with the engineering firm Schoor De Palma -- are key behind-the-scenes players who helped usher in the new wave of development.

And while both Slachetka and Roberts believe redevelopment has done more good than harm, they agree that the power of eminent domain can be, and has been, abused.

As part of a small group of planners and lawyers on an American Planning Association committee, Slachetka and Roberts helped write a 1992 law that changed the redevelopment rules in New Jersey and greatly increased the number of towns doing it.

Although their way of thinking suffered a serious setback this summer, it weathered the initial storm.

In June, the U.S. Supreme Court ruled in Kelo vs. New London that towns have a right to take private property to further redevelopment plans. The decision was a victory for redevelopment, but it touched off such a furor that 35 state legislatures and Congress proposed reforms.

In New Jersey, lawmakers introduced several bills that would have made it difficult or impossible for towns to seize private homes. But frantic lobbying by pro-redevelopment groups such as the League of Municipalities got the debate postponed indefinitely.

Slachetka and Roberts see that as a positive.

"You want to guard against doing things piecemeal or with Band-Aids," Slachetka said. "You can change the law in such a way that it is no longer effective."

Slachetka and Roberts argue that the 1992 redevelopment law has succeeded in creating dozens of large-scale developments that replaced derelict properties or outdated strip malls and raised millions of dollars in tax revenues for local governments.

Both planners now make their living helping towns design such projects, but they agree there are aspects to the way eminent domain is sometimes used and the way landowners and business owners are sometimes treated that warrant a closer look by lawmakers.

In a 2003 redevelopment handbook they wrote, Slachetka and Roberts caution client towns against taking advantage of their power.

"We always tell towns to be careful how wide a net they cast," said Roberts. "The more properties you involve, the more potential for angry property owners you have to deal with."

The power of local government to condemn blighted property was enshrined in the state’s 1947 constitution and buttressed by a series of laws over the decades. Historically, it was used in cities to clear decrepit tenements.

But as the league began hosting well-attended redevelopment seminars at its annual conventions in recent years, the practice pushed out into the suburbs. At least 60 towns have now declared "areas in need of redevelopment," the first step toward transforming neighborhoods and, if necessary, taking houses or businesses that stand in the way.

The 1992 law gave towns remarkable flexibility -- including the power to declare which "under-utilized" properties needed to be redeveloped and the ability to choose developers in secret. Critics say it played into the worst aspects of New Jersey’s pay-to-play culture, pointing to projects like one in Newark where a developer with ties to the city council plans to put 2,000 townhouses near the train station while displacing homeowners and businesses.

Slachetka concedes that pay-to-play was not given proper consideration in the early 1990s and that reforms should make the selection of developers much more public and transparent.

Redevelopment supporters insist eminent domain is one small part of the redevelopment law and that it isn’t overused. They point out that without it, a landowner might single-handedly doom a vital project.

But residents and business owners complain that local politicians have let power go to their heads. One business owner in Bloomfield who was facing relocation said he was told point blank by the developers: "Why don’t you just sell us your building? We’re going to take it anyway."

Critics say the law enabled developers to approach local officials with a wonderful idea for a piece of property they didn’t own.

Still, in places like Harrison, it would be hard to argue that crumbling factories weren’t a drag on the town. In their place, developers are promising a professional soccer stadium, hundreds of townhouses and retail space in addition to the already built condos and hotel, reshaping a former blue-collar haven that boasts a PATH stop 20 minutes from Manhattan.

Perhaps, says Slachetka, the answer to the current crisis lies with careful reform that ensures landowners, business owners and other members of the public have a greater say in the process.

Roberts notes that when injustices occur, there are courts that can deal with them.

Indeed, the courts have appeared to be increasingly cautious about the use of eminent domain in recent months. At least two state judges have overturned local redevelopment plans that called for the use of eminent domain.

Gov. Jon Corzine, a strong supporter of urban redevelopment, also spoke out strongly on the abuse of eminent domain during the gubernatorial campaign and proposed detailed reforms.

People like the Fernandez brothers can only hope he remembers those pledges.

"One of my biggest complaints about redevelopment is that the process is closed to the people affected by it," Jerry said. "You get to where you don’t trust the politicians anymore, and you don’t know who to trust. It makes you very leery of government."

© 2006 The Star Ledger