Legal Niches

Take the D-Train for eminent domain reform

By William J. Ward

There was one eminent domain bill passed in New Jersey -- on January 13, 2008, to be exact. No, it was not a reform of the Local Redevelopment Housing Law, long considered by the Legislature, passed by the Assembly, and never voted out of the Senate Community and Urban Affairs Committee. Instead, two Hudson County Democrats, former Senator Joseph Doria and former Assemblyman Louis Manzo have given us P.L. 2007, c.290 (Bills S-2743 and A-4625 respectively), which amend P.L. 1962, c.198, N.J.S.A. 48:12-35.1, concerning procedures to be followed by railroad authorities seeking to expand their right of way and condemnation of property.. The bill was co-sponsored by Assemblyman Patrick J. Diegnan of South Plainfield.

Under the new bill, railroads seeking to use eminent domain must demonstrate to the Department of Transportation:

...that alternative property suitable for the specific proposed use of the property to be taken is unavailable, either through on-site accommodation or through voluntary sale of alternative, reasonably situated property, and that the interest in the property to be taken does not exceed what is necessary for the proposed use, and shall also demonstrate to the Department of Transportation at an informal hearing the specific use to be made of the land or other property or interest to be acquired and that such proposed use is necessary and consistent with the purposes enumerated for such railroad utility and with the extent of the land or other property or interest to be condemned; and (c) any land and property necessary to comply with any order, determination, rule or regulation of the Department of Transportation.

The law provides for an administrative hearing before the Office of Administrative Law (OAL) where the railroad seeking to use eminent domain must demonstrate compliance with the new act and bears the burden of proof. Interestingly, the bill provides for notice to the fee-owner as well as tenants, and easement holders whose interest may be affected by the taking. This was a stealth bill which received little or no comment in the press and was not the focus of any of the eminent domain activist groups or those who oppose reform. The new law, signed by Governor Corzine on January 14, was among a number of bills pushed through during the lame duck session of the Legislature.  See the statement and reprint of S-2743 here and here.

Full post as published by New Jersey Eminent Domain Blog on January 16, 2008 (boomark / email).