Can You Fight Eminent Domain?
Eminent domain is the inherent right or power of the government to “take” private property for public use. In New Jersey, the State is vested with the power of eminent domain as an attribute of sovereignty. The legislature can also delegate this power to other agencies and arms of the government, such as counties, municipalities, and the New Jersey Department of Transportation. Despite this substantial authority, the government cannot take property for public use without paying the property owner “just compensation.”
There are several ways in which a property owner may fight the government’s use of eminent domain, the two most prevalent being (1) to challenge the taking itself and (2) to challenge the government’s offer of compensation. This article explores these legal avenues and how you can protect your property rights when faced with eminent domain in New Jersey.
Understanding the Eminent Domain Process in New Jersey
First, it is important to understand the general procedure that applies in a New Jersey eminent domain case. New Jersey’s “The Eminent Domain Act of 1971” (the “EDA”) was intended to provide uniform legal requirements for all New Jersey entities vested with the power of eminent domain. In the most general terms, the EDA provides a four-step process:
Step 1: Attempt to Resolve Through Negotiation
The process begins with an attempt to resolve the property acquisition outside of litigation. This involves bona fide negotiations between the condemning authority (the “condemnor”) and the property owner (the “condemnee”). These negotiations aim to reach a mutually agreeable settlement without proceeding to court.
Step 2: Seeking Court Authorization
If negotiations are unsuccessful, the condemnor must seek a final judgment from the court, duly authorizing the power of eminent domain. This step involves presenting the case before a judge, who will determine whether the use of eminent domain is justified.
Step 3: Non-Binding Arbitration
After receiving court authorization, the court appoints three commissioners to engage in a non-binding arbitration related solely to the issue of “just compensation.” These commissioners assess the value of the property to ensure fair compensation for the property owner.
Step 4: Trial for Just Compensation
If a party appeals the “commissioners’ award,” a trial is held on the issue of “just compensation,” resulting in a second final judgment. This trial determines the fair market value of the property, ensuring the property owner receives adequate compensation.
Challenging Eminent Domain in New Jersey
This process allows a property owner to challenge the power of eminent domain at two different stages of the case: first, prior to the entry of the final judgment authorizing the power of eminent domain and, second, prior to the entry of the final judgment relating to the trial of “just compensation.”
Challenging the Right to Take
Before the first final judgment, a property owner may challenge the government’s right to take a particular piece of property. Grounds for this challenge include arguing that the taking is not for “public use” or that the taking is not necessary for the asserted “public use.” Although challenging an entity’s right to take property through eminent domain is often a high hurdle, the court will hear any objections raised by the owner.
These objections can question whether the condemning agency has a valid public purpose and whether it has properly exercised its eminent domain power. The decision by the court as to the right to condemn in New Jersey is a final judgment, appealable to the appellate courts as of right.
Challenging Just Compensation
Following the first final judgment authorizing the power of eminent domain. A property owner may still fight back by asserting that the government’s offer of compensation does not reach the mandatory threshold of just compensation, as required by the United States and New Jersey Constitutions.
When a piece of property is acquired by the State or a municipality by the power of eminent domain, the landowner is entitled to just compensation measured by “the fair market value of the property as of the date of the taking, determined by what a willing buyer and a willing seller would agree to, neither being under any compulsion to act.” State v. Silver, 92 N.J. 507, 513, 457 A.2d 463 (1983). It is often the case that the government’s offer of compensation falls well below the fair market value of the property. Accordingly, a property owner may challenge the offer by using expert testimony at a trial related solely to the issue of compensation.
By understanding the eminent domain process in New Jersey, property owners can better navigate their legal options and effectively fight eminent domain. Knowing the difference between condemnation and eminent domain, and recognizing that the government cannot take private property without just compensation, empowers property owners to protect their rights.
Conclusion
Navigating the complexities of eminent domain can be daunting, but understanding your rights and the legal process can make a significant difference. The key question, “can you fight eminent domain?” has a nuanced answer: Yes, you can challenge the government’s right to take your property and the compensation offered. Knowing the procedures outlined in New Jersey’s Eminent Domain Act of 1971 is crucial.
Whether questioning the validity of the public use or disputing the adequacy of the compensation through examples of eminent domain cases, property owners have multiple opportunities to assert their rights. Eminent domain compensation examples highlight the importance of expert testimony and thorough legal representation to ensure you receive just compensation. Remember, while the government has substantial power, it must adhere to strict legal standards and fair market value principles when acquiring private property.
Get Experienced Counsel For Your Fight Against Eminent Domain
In addition to the information mentioned above, one of the easiest ways for a property owner to begin the fight against eminent domain is to retain experienced counsel as early as possible. For over 50 years, McKirdy, Riskin, Olson & DellaPelle, P.C. has concentrated its practice in this special area of the law and has earned a reputation for persistently defending its clients’ constitutionally recognized property rights. If you are confronted with the threat of eminent domain, please feel free to contact us for a free consultation.
