In a series of decisions that in any context but eminent domain would be unsurprising, the New Jersey Superior Court, Appellate Division, held that a property owner whose land is targeted for involuntary acquisition is entitled to be told about it first.
In Harrison Redevelopment Agency v. DeRose, Nos. A-0958-06T2, A-0382-07T2 (Feb. 25, 2008), the court held that a property owner was entitled to challenge the designation of his property as part of a redevelopment district despite the fact that the statute of limitations for challenging the designation had long since passed.
Many state redevelopment statutes and eminent domain codes provide that if a property owner has objections to the designation of her property as part of a redevelopment district, or has objections to public use, she has only a short time to act. New Jersey law, for example, limits objections to 45 days; New York statutes to 30 days. The issue, as stated by the DeRose court:
The central and recurring question before us is whether a property owner who fails to challenge a redevelopment designation containing his or her property within forty-five days of its adoption by a municipal governing body, pursuant to the Local Redevelopment and Housing Law (“LRHL”), N.J.S.A. 40A:12A-1 to -49, may still challenge, in full or in part, the public purpose of the taking of his or her property, by way of a defense in an ensuing condemnation action. To date both this court and the trial courts have rendered conflicting answers to that fundamental question in unpublished decisions.
The importance of such matters of timeliness is heightened by the fact that the LRHL does not, as it is presently worded, require a municipal governing body to provide individual advance notice to an owner that it is considering designating his or her property for redevelopment, and thus may take that property in the future through the power of eminent domain. Nor are property owners entitled under the LRHL to individual notice after a governing body approves such a designation, unless the owner had previously filed a written objection while the proposed redevelopment was being preliminarily evaluated by the local planning board.
Slip op. at 3-4. The court held that the government has an obligation to provide property owners with “contemporaneous written notice” that “fairly alerts” the owners that their property has been designated for redevelopment, that such a designation is a finding of “public use” and allows the government to take their property by eminent domain, and that the owners have a short time in which they may object. Slip op. at 4. If such notice is not provided, the property owner may contest the designation when his land is condemned. If, however, the government properly notifies the property owners, the owners must bring an action within the 45-day limitations period, and cannot wait to raise objections in their defense to a later-filed condemnation.
The notion that people whose property is targeted for acquisition deserve actual notice of that fact, and notice of a truncated objection period should not be controversial, yet it often is. In DeRose, the redevelopment agency claimed that requiring it to actually tell property owners that their land is subject to redevelopment “would signal the ‘death knell’ for redevelopment in Harrison and other municipalities.” Slip op. at 39. Telling landowners that we want your property would bring redevelopment efforts to a halt — imagine that! The agency never explained why this would be so, and why property owners aren’t entitled to be informed of their rights (this brings to mind the other part of the Fifth Amendment — the self-incrimination clause — and the Miranda warnings required to be given to suspects).
In several other recent cases, the courts rejected government’s arguments that it was not required to undertake great efforts to provide an owner actual notice:
- In Jones v. Flowers, 547 U.S. ___ (2006), the U.S. Supreme Court held that the government has an obligation to take further measures when it actually knows that its earlier attempts to notify the property owner have failed (the government’s letter was marked “return to sender”).
- In Brody v. Village of Port Chester, 434 F.3d 121, 132 (2d Cir. 2005), the court held that the government had an obligation to inform the landowner of the 30-day limitation period under New York law to challenge a redevelopment designation.
- In Divine v. Town of Nantucket, 449 Mass. 499, ___ N.E.2d ___ (July 19, 2007), the Supreme Judicial Court of Massachusetts invalidated a 40-year old taking because the owner was not provided actual notice many years ago.
The DeRose court also is worth reading because it expressly recognizes what many other eminent domain opinions fail to:
Although we have been called upon the resolve several rather abstract issues arising under our laws and constitution, we undertake that responsibility mindful that these cases, in a very tangible way, involve a real community, and the real people who live, work and own property there.
Slip op. at 7. Read the complete opinion here.
Thanks to New Jersey Eminent Domain Law Blog for posting links to the three opinions and summarizing their holdings here. A report on the decision here by the New Jersey Star-Ledger.