Eminent domain at the bayshore – After the Drowning

“Little else raises fear in property owners like eminent domain powers of government”.

I remember back years ago when we didn’t worry that our children might be murdered in a mass killing by crazy guy with a military style machine gun in their school. Back then we didn’t worry that people from another country were stealing our anything. In fact, we even welcomed them and benefited from the relationships. And we mostly believed that when our president said something the result was based in fact. Back then, I still recall, that one thing that did make an ordinary American’s blood boil was the topic of eminent domain. The government’s right to take private property for the public good scared us to an extreme. Little else raises fear in property owners like eminent domain powers of government. The topic of eminent domain was a prevailing social paranoia among NJ and PA property owners in the communities where I grew up as a child and lived as a homeowner for decades more.

Bayshore residents give up a lot in order to live here. No modern conveniences, fierce bugs, storms, flooding, heat and more. Yet we make those sacrifices for a reason; the ability to remain in our own part of heaven. Yet eminent domain threatens to rob us of the value of these years of sacrifice by offering the depleted cash value of our homes and businesses and leaving little option to restore a quality of life elsewhere. Eminent domain is the ultimate environmental injustice. Eminent domain is one of the legally endorsed techniques to accelerate the overall long term trend of rich people displacing poor people at the coast. I understand this larger concept of government displacement of poor people at the bayshore is a theme of the book “The Drowning of Money Island” that I have not read yet.

Since Superstorm Sandy in 2012 thousands of New Jersey shorefront property owners – mostly in rich Atlantic coastal towns – have felt the effect of eminent domain law. Many hated it and think of it as legalized theft. But the government’s perceived need to make immediate infrastructure changes to save our shore towns was held as a higher priority than individual property rights.

Most people acknowledge a need to relocate populations away from the coast but some human workforce is still needed at the bayshore to support fisheries, aquaculture, marine trades and other support services. I’ve always assumed that I might be floating on a boat, but that my presence would always be valued in these capacities at the bayshore.

Here at the bayshore state government has emphasized voluntary property acquisitions rather than eminent domain. The words eminent domain are still considered taboo by many politicians. One of our former mayors emphasized that this township would never use eminent domain to acquire properties. That’s partly why I was surprised when conservative Downe Township in Cumberland County proposed a series of land acquisition ordinances that included eminent domain provisions. The ordinances do not require that the properties utilize eminent domain law, but rather that they open the door to that possibility.

This blog post is written simply to document the little bit that I’ve learned about eminent domain as it applies (or not) to our situation.

I presume that small township solicitors use prototype ordinances in his daily work for our township. This seems to be the case for a number of proposed land acquisition ordinances that include the term “EMINENT DOMAIN” in the title section. More concerning is that each proposed ordinance includes this phrase:

“WHEREAS, the Township has determined that it is necessary, beneficial and in the public’s interest to acquire all or a portion of the subject Property for public use as proposed;”

I’ve learned from other sources that this is boilerplate language and

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, in fact, no actual determination that would meet the requirements of that clause under the Eminent Domain Act of 1971 as interpreted by the courts, has actually been made.

Here are my concerns:

First, I wish that we would be more precise in our wording of proposed ordinances to avoid miscommunication and legal tussles later. The fact is that it is highly unlikely that local government could meet this specific legal requirement. To say that government already did this is misleading.

Second, I wish that we would completely avoid the use of the term “eminent domain” unless it is absolutely necessary as determined by due public process.

Third, I wish that we would address the real problem: scarcity of funding to accomplish all of these well-intended municipal goals. While I know that a few people work hard to find funding, the pattern is to ignore possibilities of public private partnerships like the ones my company Baysave develops to accomplish community goals. We need to get the community involved and build consensus among diverse interests to accomplish our challenging climate change adjustments ahead.