Amicus Curiae Brief — Kelo v. New London

Supreme Court. U.S. a

\ FILED

er DEC 2 - 2004

No. 04-108 | OFFICEOF THE CLERK |

IN THE

Supreme Court of the Ruited States

SUSETTE KELO, THELMA BRELESKY,

PASQUALE CRISTOFARO, WILHELMINA AND

CHARLES DERY, JAMES AND LAURA GURETSKY,

PATAYA CONSTRUCTION LIMITED PARTNERSHIP

AND WILLIAM VON WINKLE,

Petitioners,

Vv.

CITY OF NEW LONDON AND NEW LONDON

DEVELOPMENT CORPORATION,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF CONNECTICUT

BRIEF OF AMICUS CURIAE

K. HOVNANIAN COMPANIES, LLC

IN SUPPORT OF RESPONDENTS

PAUL H. SCHNEIDER

Counsel of Record

AFIYFA H. BOLTON

GIORDANO, HALLERAN & CIESLA, P.C.

125 Half Mile Road, P.O. Box 190

Middletown, New Jersey 07748

(732) 741-3900

Attorneys for Amicus Curiae

K. HOVNANIAN COMPANIES, LLC

Lawyers Brief Service * Appellate Brief Printers * (213) 613-1013 * (949) 720-1510

No. 04-108

IN THE

Supreme Court of the United States

SUSETTE KELO, THELMA BRELESKY,

PASQUALE CRISTOFARO, WILHELMINA AND

CHARLES DERY, JAMES AND LAURA GURETSKY,

PATAYA CONSTRUCTION LIMITED PARTNERSHIP

AND WILLIAM VON WINKLE,

Petitioners,

v.

CITY OF NEW LONDON AND NEW LONDON

DEVELOPMENT CORPORATION,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF CONNECTICUT

BRIEF OF AMICUS CURIAE

K. HOVNANIAN COMPANIES, LLC

IN SUPPORT OF RESPONDENTS

PAUL H. SCHNEIDER

Counsel of Record

AFTYFA H. BOLTON

GIORDANO, HALLERAN & CIESLA, P.C.

125 Half Mile Road, P.O. Box 190

Middletown, New Jersey 07748

(732) 741-3900

Attorneys for Amicus Curiae

K. HOVNANIAN COMPANIES, LLC

TABLE OF CONTENTS

AS THE NEW JERSEY SITUATION

DEMONSTRATES, THF USE OF EMINENT

DOMAIN TO ENABLE PRIVATE REDE-

VELOPMENT TO MEET VITAL PUBLIC

NEEDS, SUCH AS HOUSING, JOBS, AND

OTHER ECONOMIC OPPORTUNITIES,

MAY SATISFY THE “PUBLIC USE”

REQUIREMENT OF THE FIFTH AMEND-

MENT’S TAKINGS CLAUSE ...............

A. New Jersey is the Most Densely

Populated State inthe Union.............

B. New Jersey has a Growing Popula-

ELLE L ES SESE PIES STOTT T ETT

C. New Jersey Lacks the Housing

Needed to Shelter its Growing

DT Sebgeesecedeecesoccceccs

.7

Growth” Policy for Future Develop-

F. The Local Redevelopment and

Housing Law Enables Municipalities

to Identify Areas in Need of

Redevelopment, Promulgate Plans to

Redevelop Those Areas and, When

Necessary, Exercise Eminent

Domain to Accomplish These Plans ...... 14

G. This Court Should Reject a Narrow

“Elimination of Blight” Standard for

Determining Whether and When the

Fifth Amendment Allows the Use of

Condemnation for Private Economic

TABLE OF AUTHORITIES

Cases

Aversano v. Palisades Interstate Parkway Comm'n,

832 A.2d 914 (N.J. Super. Ct. App. Div. 2003)

(Wefing, J., dissenting), modified on other

grounds, 851 A.2d 633 (2004) .... 2.6... cece eens 4

Berman v. Parker, 348 U.S. 26 (1954) .......... 20, 21

Cappture Realty Corp. v. Bd. of Adjustment,

Elmwood Park, 313 A.2d 624

(N.J. Super. Ct. Law Div. 1973),

aff'd on other grounds, 336 A.2d 30

(N.J. Super. Ct. App. Div. 1975) ..... 2... 6-50 e5 5

Concerned Citizens of Princeton, Inc. v.

Borough of Princeton, 851 A.2d 685

(N.J. Super. Ct. App. Div. 2004) ............ 16, 18

Forbes v. Township of S. Orange Vill.,

712 A.2d 255 (N.J. Super. Ct. App. Div.),

certif. den., 719 A.2d 642 (N.J. 1998) ..........- 17

Haw. Housing Auth. v. Midkiff,

467 U.S. FID (1GBS) onc ccccccccccccccccccess 21

Hirth v. City of Hoboken,

766 A. 2d 803 (N.J. Super. Ct. App. Div. 2001) ... 16

In re Egg Harbor Assocs.,

464 A.2d 1115 (NJ. 1983) ... 2.6.6 ee ee ewes 10

-jiv-

Kuzuri Kijij, Inc. v. Bryan,

852 A.2d 1136 (N.J. Super. Ct. App. Div. 2004) .... 7

Levin v. Township Comm. of Tp. of Bridgewater,

274 A.2d 1 (N.J.), appeal dismissed,

PPE Kevdédonedeecsskdcecécce< 17

N.J. Sports & Exposition Auth. v. McCrane,

292 A.2d 545 (N.J. 1972), cert. den.,

So ee 5

224 Jefferson St. Condo. Ass'n v. Paige,

788 A.2d 296 (N.J. Super. Ct. App. Div.),

certif. den., 796 A.2d 896 (N.J. 2002) ............ 7

Constitutions

N.J. Const. of 1947, art. VIII, §3, 41 (1963) ......... 16

U.S. Const. Amend. V .................. 1, 3, 21-23

Statutes

N.J. Stat. Ann. § 2A:18-61.1 to -61.12 (West,

WESTLAW throughl.2004, c. 1 to 155) .......... 7

N.J. Stat. Ann. § 4:1B-1 (West 1998) ............... 4

N.J. Stat. Ann. § 12:5-3

(West 1979 & Supp. 2004), ef. seq. ............. 10

-V-

Page

N.J. Stat. Ann. § 13:1D-144 (West, WESTLAW

through L.2004, c. 1 to 155) 2... 6. ee eee eee ees 13

N.J. Stat. Ann. § 13:1D-145 (West, WESTLAW

through L.2004, c. 1 to 155), ef Seq. ........055 13

N.J. Stat. Ann. § 13:1D-146a (West, WESTLAW

through L.2004, c. 1 to 155)... 2... eee ee eee ees 13

N.J. Stat. Ann. § 13:1E-213 (West 2003) ............ 4

N.J. Stat. Ann. § 13:9A-1 (West 2003), ef seq. ....... 10

N.J. Stat. Ann. § 13:9B-1 (West 2003), ef seq......... ll

N.J. Stat. Ann. § 13:17-1 (West 2003), et seq. ........ ll

N.J. Stat. Ann. § 13:18A-1 (West 2003) et seq. ....... 10

N.J. Stat. Ann. § 13:18A-2 (West 2003) ............ 10

N.J. Stat. Ann. § 13:19-1 (West 2003), ef seq. ........ 10

N.J. Stat. Ann. § 13:20-1 (West, WESTLAW

through L.2004, c. 1 to 155), ef Seq. .. 6... 0 eee 9

N.J. Stat. Ann. § 13:20-2 (West, WESTLAW

through L.2004, c. 1 to 155)... 2... eee ee ee ees a)

N.J. Stat. Ann. § 40A:12A-1

(West 1993 & Supp. 2004), ef seg. .... 2.6.6.0 0es 14

Page

N.J. Stat. Ann. § 40:12A-2

(West 1993 & Supp. 2004) ..........0000200., 14

N.J. Stat. Ann. § 40A:12A-3 (West 1993) ........... 16

N.J. Stat. Ann. § 40A:12A-5

(West 1993 & Supp. 2004) ................, 15, 18

N.J. Stat. Ann. 40A:12A-Sa, b, d

(West 1993 & Supp. 2004) ....... 000000000... 15

N.J. Stat. Ann. § 40A:12A-Se, h

(West 1993 & Supp. 2004) ........000.000004.., 16

N.J. Stat. Ann. § 40A:12A-6

(West 1993 & Supp. 2004) .........00000000.. 15

N.J. Stat. Ann. § 40A:12A-6(b) (5)

(West 1993 & Supp. 2004) ..........00..0...., 18

N.J. Stat. Ann. § 40A:12A-6(c)

(West 1993 & Supp. 2004) ........0..000.0000.. 17

N.J. Stat. Ann. § 40A:12A-7

(West 1993 & Supp. 2004) ................... 18

N.J. Stat. Ann. § 40A:12A-8 (c)

(West 1993 & Supp. 2004) .......0.0000.0005. 19

N.J. Stat. Ann. § 40A:12A-8 (f)

(West 1993 & Supp. 2004) .............0.0.., 19

Page

N.J.S.A. Stat. Ann.§ 40:55D-138 (West,

WESTLAW through L. 2004, c. 1 to 155) ......... 4

N.J. Stat. Ann. § 40:55D-114 (West 1991) ........... 4

N.J. Stat. Ann. § 52:18A-196

(West 2001 & Supp. 2004) 2... 6... cece eee ees 4

N.J. Stat. Ann. § 52:18A-196 (a)

(West 2001 & Supp. 2004) ... 6... cece eee 12

N.J. Stat. Ann. § 52:18A-196 (c)

(West 2001 & Supp. 2004) 2... 6... cece eee 12

N.J. Stat. Ann. § 52:18A-196(d)

(West 2001 & Supp. 2004) .... 6... ccc cece 13

N.J. Stat. Ann. § 52:18A-196 (g)

(West 2001 & Supp. 2004) ©2022... ccc cece 13

N.J. Stat. Ann. § 55:19-20 (West 2001) ..........555. 4

National Parks and Recreation Act of 1978,

16 U.S.C.A. § 471i (West 2000)... 6... ee eee 10

New Jersey Administrative Code

N.J. Admin. Code. tit. 7, § 7 (2004)... 6... ccc eee 11

N.J. Admin. Code. tit. 7, § TE (2004) ........500 ee 11

-Viii-

Other Authorities

Ctr. for Urban Policy Research, Rutgers,

The State Univ. of N.J., The Costs and

Benefits of Alternative Growth Patters,

The Impact Assessment of the New Jersey

State Plan 111 (Sept. 2000) ...............

Div. of Labor Mkt. and Demographic Research,

N.J. Dep’t of Labor and Workplace Dev.,

Population, Labor Force, Industry

Employment and Occupational Employment

Projections for New Jersey: 2002 to 2012

(Aug. 2004), http://www.wnjpin.net/

OneStopCareerCenter/LaborMarket

Information/Imi03/highlights.doc ...........

Div. of Labor Mkt. and Demographic Research,

N.J. Dep’t of Labor and Workplace Dev.,

Table 1, Projection of Total Population by

Projection Model, New Jersey 1990 to 2025,

http://www. wujpin.net/OneStopCareer

Center/LaborMarket Information/Imi03/

SONNE OEE CAND, BED cc cccccccccccceste

Highlands Conservation Act, H.R. 1964,

PG GED a cccvececeeccescecess

N.J. Pinelands Comm'n, A Summary of the

New Jersey Pinelands Comprehensive

Management Plan, http://www.nj.gov/

pinelands/cmp.htm (last updated

Pe Cn cavtedeauusansaenncaceees

N.J. Pinelands Comm'n, Highlights of the

Pinelands, Size, http://www.nj.gov./

pinelands/pnrpc.htm (last updated

i .v i pee eekdvestvendeneeus

N.J. State Data Ctr., Div. of Labor Mkt. and

Demographic Research, N.J. Dep’t of Labor

and Workplace Dev., Housing Units,

Households and Families New Jersey,

Counties and Sélected Municipalities:

1990 and 2000 4 (Aug. 2001),

http://www. wnjpin.net/OneStop

CareerCenter/LaborMarketInformation/

Imi25/pub/NJSDC-PH1.pdf .............--

veees 6 N.J. State Planning Comm'n, The New Jersey

Development and Redevelopment Plan,

Executive Summary 34 (Mar. 1, 2001) .......

Sen- Yuan Wu, N.J., Dep’t of Labor and

Workforce Dev., Estimate of Foreign-Born

Population in New Jersey: 2000,

http://www. wnjpin.net/OneStopCareer

sees 6 ; Center/LaborMarketInformation/Imi19/

eifbp.pdf (last revised June 28, 2004) ........

eeees 9 Sen-Yuan Wu, N.J. Dep’t of Labor and

Workforce Dev., 2003 State Population

Estimates 1, http://www.wnijpin.net/OneStop

CareerCenter/LaborMarket-Information/

Imi02/stest03.pdf (last modified Oct. 8, 2004) ....

Page

U.S. Census Bureau, State and County

QuickFacts, http://quickfacts.census. gov/

qfd/states/ 34000.html (last revised on

July 9, 2004) 22... cece eee eee ee ener e renee

l

INTERESTS OF AMICUS CURIAE

The parties to this case have filed letters with the Clerk of

the Court consenting to the filing of amicus curiae briefs in

this matter.

K. Hovnanian Companies, LLC (“K. /dovnanian’”) is a

leading national homebuilder that has housed over 145,000

families in the United States. K. Hovnanian operates in the

States of New Jersey, New York, Pennsylvania, Maryland,

Virginia, West Virginia, Ohio, North Carolina, South

Carolina, Texas, Arizona, Florida and California.

K. Hovnanian is the largest homebuilder in the State of

New Jersey, a densely populated State with limited availability

of undeveloped land on which to house a growing population.

New Jersey’s response to these circumstances — identifying

“area[s] in need of redevelopment” and enabling private

companies such as K. Hovnanian to provide housing and other

economic opportunities in such areas — illustrates that in

appropriate circumstances, the use of eminent domain for

so-called “private economic development” satisfies the public

use requirement of the Fifth Amendment’s Takings Clause.

' — Pursuant to Rule 37.6 of this Court, amicus curiae state that their

counsel authored this brief and amicus curiae paid for the preparation of

this brief. This brief was not written in whole or part by counsel for a

party, and no one other than amicus curiae made a monetary contribution

to its preparation.

2

SUMMARY OF THE ARGUMENT

New Jersey is the most densely populated state in the

nation. Due to environmental constraints, New Jersey has a

limited availability of undeveloped land on which to provide

housing and on which to address employment and the other

needs of a growing population. The State has adopted a

policy of “smart growth,” which seeks to address these public

needs while conserving natural and environmental resources

by promoting development in areas without significant

environmental constraints, and by encouraging redevelopment

and revitalization in areas that are already developed. A key

component of this strategy is New Jersey’s Local Housing and

Redevelopment Law, which addresses the public’s need for

housing, jobs, and economic development by identifying

“area{s] in need of redevelopment,” creating plans for the

appropriate redevelopment of these areas, and authorizing

private parties to implement these redevelopment plans. One

element of this redevelopment effort is the use of eminent

domain.

While the designation of an “area in need of redevelop-

ment” focuses on redevelopment of blighted areas, the need to

provide housing, jobs and other economic opportunities in a

state such as New Jersey may require going beyond the

“elimination of blight” in the narrowest sense of that term.

New Jersey’s experience illustrates that the use of eminent

domain for so-called “private economic development” is

sometimes necessary in order to provide for essential public

needs — housing, jobs, and protection of fragile environmental

resources. This Court should reject an overly narrow

“elimination of blight” standard for determining whether and

3

when the use of eminent domain for “private economic

development” satisfies the “public use” requirement of

Takings Clause of the Fifth Amendment.

LEGAL ARGUMENT

AS THE NEW JERSEY SITUATION DEMON-

STRATES, THE USE OF EMINENT DOMAIN

TO ENABLE PRIVATE REDEVELOPMENT

TO MEET VITAL PUBLIC NEEDS, SUCH AS

HOUSING, JOBS, AND OTHER ECONOMIC

OPPORTUNITIES, MAY SATISFY THE

“PUBLIC USE” REQUIREMENT OF THE

FIFTH AMENDMENT’S TAKINGS CLAUSE.

. This Court has granted certification to determine the limits

imposed by the Fifth Amendment's public use requirement on

the condemnation of private property not solely to eliminate

slums or blight, but to provide housing, jobs and other

economic benefits through “private economic development.”

This amicus curiae contends that in appropriate circum-

stances, condemnation of private property to enable redevel-

opment by private parties need not be tied to a narrow

requirement of “elimination of blight” in order to pass

constitutional muster. Circumstances in a state such as New

Jersey demonstrate that condemnation of areas determined to

be in neea of redevelopment may enable the private sector to

provide housing, jobs and other economic opportunities for a

growing population faced with a dwindling supply of

undeveloped land. The use of condemnation in such

circumstances readily satisfies the “public use” requirement.

4

A. New Jersey is the Most Densely Populated

State in the Union.

New Jersey is the most densely populated State in the

nation. N.J. Stat. Ann. § 52:18A-196 (West 2001 & Supp.

2004) (State Planning Act, legislative findings). As of 2003,

there were 1,164 people per square mile in the State of New

Jersey. Sen-Yuan Wu, N.J. Dep’t of Labor and Workforce

Dev., 2003 State Population Estimates 1, http://www.

wnjpin.net/OneStopCareerCenter/LaborMarket-

Information/Imi02/stest03.pdf (last modified Oct. 8, 2004).

By contrast, the national average was a population of 82.2 per

square mile. Id. By the year 2025, New Jersey will have a

projected population of 1,381.6 per square mile, with an ever

increasing density in the ensuing years.”

Both the State’s Legislature and Courts have recognized

the challenges faced by this population density. See N.J. Stat.

Ann. § 52:18A-196 (West 2001 & Supp. 2004) (State

Planning Act, legislative findings); N.J. Stat. Ann. § 4:1B-1

(West 1998) (Agricultural Preserve Demonstration Program

Act, legislative findings); N.J. Stat. Ann. § 13:1E-213 (West

2003) (Clean Community and Recycling Grant Act, legislative

history); N.J. Stat. Ann. § 40:55D-114 (West 1991), N.J.S.A.

Stat. Ann.§ 40:55D-138 (West, WESTLAW through L.

2004, c. 1 to 155) (State transfer of development rights to

municipality, legislative findings); N.J. Stat. Ann. § 55:19-20

(West 2001) (New Jersey Urban Redevelopment Act); see

generally, Aversano v. Palisades Interstate Parkway Comm'n,

2 Calculation based on the projected population in 2025, infra, divided

by the square mileage of the State of New Jersey.

5

832 A.2d 914, 930 (N.J. Super. Ct. App. Div. 2003) (Wefing,

J., dissenting), modified on other grounds, 851 A.2d 633

(2004) (recognition that New Jersey is densely populated):

N.J. Sports & Exposition Auth. v. McCrane, 292 A.2d 545

577 (N.J. 1972), cert. den., 414 U.S. 989 (1973) (secegnhicn

that New Jersey is the most densely populated State in the

nation); Cappture Realty Corp. v. Bd. of Adjustment,

Elmwood Park, 313 A.2d 624, 630 (N.J. Super. Ct. Law Div.

1973), aff'd on other grounds, 336 A.2d 30 (N.J. Super. Ct.

App. Div. 1975).

B. New Jersey has a Growing Population.

New Jersey’s population continues to grow. As of July 1,

2003, New Jersey’s population reached 8,638,396. Wu, supra

at 1; see also U.S. Census Bureau, State and County

QuickFacts, http://quickfacts.census.gov/ qfd/states/

34000.html (last revised on July 9, 2004). The State

experienced a 0.7% rate of growth from the 2002 total

population of 8,575,252. Wu, supra at 1. In 2000, the

State’s population was 8,414,350. State and County

QuickFacts, supra. Since the 2000 census, New Jersey

experienced an estimated annual increase in population of

0.8%. Wu, supra at 2.

Overall, New Jersey is the nation’s tenth most populous

State in the nation. /d. at 1 (citing U.S. Bureau of Census,

Population Division (Dec. 2003)). From 2002 to 2003, New

Jersey had the greatest population growth of any State in the

Northeast region, with an increase in population of 63,144,

compared to New York and Pennsylvania, which grew by 0.3

percent each from 2002-2003. /d. at 2. By the year 2025,

6

New Jersey's population is expected to increase by more than

18% to 10.250, 100. Div. of Labor Mkt. and Demographic

Research, N.J. Dep’t of Labor and Workplace Dev.,

Population, Labor Force, Industry Employment and Occupa-

tional Employment Projections for New Jersey: 2002 to 2012

(Aug. 2004), http://www.wnjpin.net/ OneStopCareerCenter/

LaborMarketInformation/Imi03/highlights.doc; See Div. of

Labor Mkt. and Demographic Research, N.J. Dep’t of Labor

and Workplace Dev., Table 1, Projection of Total Population

by Projection Model, New Jersey 1990 to 2025,

http://www. wnjpin.net/OneStopCareerCenter/LaborMarket

Information/Imi03/Sptab1 .pdf (Aug. 2004).

Foreign immigration is the largest source of New Jersey’s

population growth. Wu, supra at 2. The State ranked 6th

among all states in foreign immigration from 2002 to 2003.

Wu, supra at 2. The net gain of foreign immigration from

2000 to 2003 was 192,044 in population growth. Jd. at 3. In

2000, 15% of New Jersey’s population consisted of foreign

born immigrants. Sen-Yuan Wu, N.J., Dep’t of Labor and

Workforce Dev., Estimate of Foreign-Born Population in

New Jersey: 2000, http://www.wnjpin.net/OneStopCareer

Center/LaborMarketInformation/Imi | 9/ eifbp.pdf (last revised

June 28, 2004). In 2003, New Jersey's foreign born

population was 17.5% and growing. State and County

QuickFacts, supra.

t

7

C. New Jersey Lacks the Housing Needed to

Shelter its Growing Population.

New Jersey has a growing need for housing. For example,

from 1990 to 2000, the growth in the number of housing units

did not keep pace with the State’s population growth. N.J.

State Data Ctr., Div. of Labor Mkt. and Demographic

Research, N.J. Dep’t of Labor and Workplace Dev., Housing

Units, Households and Families New Jersey, Counties and

Selected Municipalities: 1990 and 2000 4 (Aug. 2001),

http://www.wnjpin.net/OneStopCareerCenter/

LaborMarketInformation/Imi25/pub/NJSDC-PH 1 .pdf. From

1990 to 2000, the State’s total housing units increased by

7.6%, compared with the nation-wide increase of 13.3%. Id.

New Jersey's lack of an adequate housing supply is

attributable to the rise in population growth, the limited

availability of land, and the tendency for larger families among

foreign immigrants. Jd. Both the State’s Legislature and

Courts have recognized that New Jersey suffers from a

housing shortage. See N.J. Stat. Ann. § 2A:18-61.1 to -61.12

(West, WESTLAW through. 2004, c. 1 to 155) (Anti-Eviction

Act, legislative findings); 224 Jefferson St. Condo. Ass’n v.

Paige, 788 A.2d 296 (N.J. Super. Ct. App. Div.), certif. den.,

796 A.2d 896 (N.J. 2002); Kuzuri Kijij, Inc. v. Bryan, 852

A.2d 1136 (N.J. Super. Ct. App. Div. 2004).

D. Due to Environmental Constraints, New

Jersey has a Limited Availability of Un-

developed Land Suitable for Development.

New Jersey has a limited availability of undeveloped land

suitable for development, due largely to environmental

constraints. New Jersey has 4.8 million acres of land, of

which 1.35 million acres are developed. Ctr. for Urban Policy

Research, Rutgers, The State Univ. of N.J., The Costs and

Benefits of Alternative Growth Patters, The Impact

Assessment of the New Jersey State Plan 111 (Sept. 2000).

When public park lands, forest lands, preserved farm land, fish

and wildlife management areas, and other lands earmarked for

preservation are accounted for, fewer than 1 million acres of

undeveloped land remain. Jd. And much of this is environ-

mentally constrained.

The State Planning Commission, in the 2001 State

Development and Redevelopment Plan, has designated

833,282 acres as environmentally sensitive planning areas,

comprising 17.3% of the land in New Jersey. N.J. State

Planning Comm'n, The New Jersey Development and

Redevelopment Plan, Executive Summary 34 (Mar. 1, 2001).

Of that, 127,892 acres are developed, 338,904 acres are

unprotected and undeveloped land, 139,446 acres are

preserved, and 223,139 acres are environmentally sensitive

and unsuitable for development under the State Development

and Redevelopment Plan. /d. Lands in the environmentally-

sensitive planning areas are so designated due to wildlife

habitats, geological features and sensitive ecosystems. Id. In

addition, the State Development and Redevelopment Plan has

designated rural/environmentally sensitive planning areas

comprised of 395,400 acres, which is 8.2% of New Jersey's

9

land. Jd. at 34. Of that land, 57,721 acres are developed,

255,887 acres are unprotected and undeveloped, 39,141 acres

are preserved, and 42,651 acres are unsuitable for

development. /d.

various regions of the State with sensitive environmental

features that warrant special protection. For example, earlier

this year the Legislature enacted the Highlands Water

Protection and Planning Act. NJ. Stat. Ann. § 13:20-1 (West,

WESTLAW through L.2004, c. 1 to 155), et seq. The

Legislature recognized that the “portion of the national

Highlands Region contained within the State of New Jersey is

nearly 800,000 acres, or about 1,250 miles.” N.J. Stat. Ann.

§ 13:20-2 (West, WESTLAW through L.2004, c. 1 to 155).

The Highlands region contains thirteen percent of the land in

New Jersey. Id. Of this, the 139,446 most critical acres have

been designated as the “Highlands Preservation Region” in

which development is severely limited in order to protect the

water supplies for the State’s urban population centers. The

New Jersey Highlands are part of the interstate Highlands

Region that also extends into Pennsylvania and New York.

The United States Department of Agriculture Forest Service,

and recently the United States Congress, have recognized that

the Highlands Region is of special environmental significance

because it ensures clean and plentiful drinking water for the

citizens of the region, and provides other natural resources

including “clean air, contiguous forest lands, wetlands, pristine

watersheds and habitat for fauna and flora.” /d.; Highlands

Conservation Act, H.R. 1964, 108th Cong. (2004).

10

Congress has also recognized the national significance of

the New Jersey Pinelands, and has encouraged State

preservation efforts. National Parks and Recreation Act of

1978, 16 U.S.C.A. § 471i (West 2000). In response, the New

Jersey Legislature enacted the Pinelands Protection Act. N.J.

Stat. Ann. § 13:18A-1 (West 2003) et seq. The pinelands area

contains important surface and ground water resources and

provides a habitat for “rare, threatened and endangered plant

and animal species” and other “special natural, ecological,

agricultural, scer.c, cultural and recreational resources.” N.J.

Stat. Ann. § 13:18A-2 (West 2003). The pinelands area

comprises approximately 1.1 million acres, approximately 22%

of the land in the State, with a core preservation area of

295,000 acres where minimal development is permitted. /d;

see also N.J. Pinelands Comm'n, A Summary of the New

Jersey Pinelands Comprehensive Management Plan,

http://www.nj.gov/pinelands/cmp.htm (last updated Nov. 16,

2004); N.J. Pinelands Comm'n, Highlights of the Pinelands,

Size, http://www.nj.gov./pinelands/pnrpc.htm (last updated

Nov. 16, 2004).

Moreover, the State of New Jersey protects its

environmentally-sensitive coastal waters and the nearby land

pursuant to the Waterfront Development Law, N.J. Stat. Ann.

§ 12:5-3 (West 1979 & Supp. 2004), et. seq., the Wetlands

Act of 1970, N.J. Stat. Ann. § 13:9A-1 (West 2003), et seq.,

and the Coastal Area Facility Review Act, N.J. Stat. Ann.

§ 13:19-1 (West 2003), et seq. The land area regulated by the

Coastal Area Facility Review Act alone consists of 880,640

acres, approximately 18.3 % of the land within the State. See

In re Egg Harbor Assocs., 464 A.2d 1115, 1120-21 (N.J.

1983). The State’s Department of Environmental Protection

regulates development in these areas pursuant to the New

Jersey Coastal Permit Program rules, N.J. Admin. Code. tit. 7,

§ 7 (2004) and the Coastal Zone Management Rules, N.J.

Admin. Code. tit. 7, § TE (2004).

There are a variety of other statutes that regulate and

restrict development in environmentally-sensitive areas of New

Jersey. See e.g. Freshwater Wetlands Protection Act, N.J.

Stat. Ann. § 13:9B-1 (West 2003), et seq.; Hackensack

Meadowlands Reclamation and Development Act, N.J. Stat.

Ann. § 13:17-1 (West 2003), et seq.

| In summary, much of the undeveloped land in New Jersey

is environmentally sensitive, and the State has acted to protect

the public health, safety and welfare by restricting and

regulating development in these areas.

E. New Jersey has adopted a “Smart Growth”

Policy for Future Development.

In response to a growing population and environmental

constraints on much of the State’s undeveloped land, New

Jersey has adopted a policy of promoting “smart growth,” a

term used to describe planned and managed growth that adds

new homes and creates new jobs, while preserving open space,

farmland and environmental resources. In 1985, the

Legislature enacted the State Planning Act, finding that:

a. New Jersey, the nation’s most

densely populated State, requires sound

and integrated Statewide planning and the

coordination of Statewide planning with

12

local and regional planning in order to

conserve its natural resources, revitalize its

urban centers, protect the quality of its

environment, and provide needed housing

and adequate public services at 2 (¢2.on-

able costs while promoting beucticial

economic growth, development and

renewal; . . .

N.J. Stat. Ann. § 52:18A-196 (a) (West 2001 & Supp. 2004).

The State Planning Act established the State Planning

Commission, and directed that it prepare a “State Develop-

ment and Redevelopment Plan designed for use as a tool for

assessing suitable locations for infrastructure, housing,

economic growth and conservation{.]” J. Stat. Ann.

§ 52:18A-196 (c) (West 2001 & Supp. 2004).

The Legislature has also declared that:

d. It is in the public interest to

encourage development, redevelopment

and economic growth in locations that are

well situated with respect to present or

anticipated public services and facilities,

giving appropriate priority to the

redevelopment, repair, rehabilitation or

replacement of existing facilities and to

discourage development where it may

impair or destroy natural resources or

environmental qualities that are vital to the

health and well-being of the present and

future citizens of the State; . . .

13

N.J. Stat. Ann. § 52:18A-196(d) (West 2001 & Supp. 2004).

The State Development and Redevelopment Plan encompasses

the State’s land use and development policies, and is intended

to promote economic growth, urban revitalization, adequate

housing and transportation, agricultural promotion and

preservation, and preservation of natural, environmental,

historical and cultural resources. The “smart growth” policy

is intended to ensure that “all of New Jersey’s citizens benefit _

from growth, development and redevelopment.” N.J. Stat.

Ann. § 52:18A-196 (g) (West 2001 & Supp. 2004).

Most recently, the Legislature enacted the Smart Growth

Law, N.J. Stat. Ann. § 13:1D-145 (West, WESTLAW

through L.2004, c. 1 to 155), et seg., which establishes a

variety of policies and procedures to facilitate development in

the “smart growth” areas. For example, the law requires that

the State’s Departments of Environmental Protection and

Transportation expeditiously review applications for

development permits in “smart growth” areas. N.J. Stat. Ann.

§ 13:1D-146a (West, WESTLAW through L.2004, c. 1 to

155). The Law defines a “smart growth” area as an area

designated by the State Development and Redevelopment Plan

as a Metropolitan or Suburban Planning Area. These areas

include the State’s existing urban and older suburban areas.

“Smart growth” areas also include designated growth centers,

an “area(s] in need of redevelopment” pursuant to Local

Redevelopment and Housing Law, infra, a regional growth

areas designated in the management plan prepared and

adopted by the Pinelands Commission, and various other

designated areas. N.J. Stat. Ann. § 13:1D-144 (West,

WESTLAW through L.2004, c. 1 to 155).

14

F. The Local Redevelopment and Housing Law

Enables Municipalities to Identify Areas in

Need of Redevelopment, Promulgate Plans to

Redevelop Those Areas and, When Neces-

sary, Exercise Eminent Domain to Accom-

plish These Plans.

The New Jersey Legislature has enacted the Local

Redevelopment and Housing Law (“LRHL”) to promote the

policy of “smart growth.” N.J. Stat. Ann. § 40A: 12A-1

(West 1993 & Supp. 2004), et seq. The Legislature

determined that:

a. There exist, have existed and

persist in various communities of this State

conditions of deterioration in housing,

commercial and industrial installations,

public services and facilities and other

physical components and supports of

community life, and improper, or lack of

proper, development which result from

forces which are amendable to correction

and amelioration by concerted effort of

responsible public bodies, and without this

public effort are not likely to be corrected

or ameliorated by private effort. . . .

N.J. Stat. Ann. § 40: 12A-2 (West 1993 & Supp. 2004). The

goals of the LRHL are to cease the deterioration of housing,

commercial and industrial facilities through redevelopment at

the local level.

15

The Legislature has designated the criteria and procedural

safeguards for designating an “area in need of redevelopment.”

N.J. Stat. Ann. § 40A:12A-5 (West 1993 & Supp. 2004) in

part states:

A delineated area may be determined

to be in need of redevelopment if, after

investigation, notice and hearing as

provided in [N.J. Stat. Ann.] 40A:12A-6[]

[((West 1993 & Supp. 2004)], the

governing body of the municipality by

resolution concludes that within the

delineated area any of the following

conditions is found: . . .

The LRHL then goes on to describe a variety of conditions

that undoubtedly fall within any common understanding of a

“blighted” or “slum” area, including a “generality of buildings

[that] are substandard, unsafe, unsanitary, dilapidated, or

obsolescent, . . .”; buildings with “unwholesome living or

working conditions”; areas where buildings are abandoned or

are in “so great a state of despair as to be untentantable”; and

areas “with buildings or improvements which. . . are

detrimental to the safety, health, morals, or welfare of the

community.” N.J. Stat. Ann. 40A:12A-5a, b, d (West 1993 &

Supp. 2004).

Yet an “area in need of redevelopment” need not be

limited to a narrow finding of blight, but, rather, may include

areas where:

16

e. A growing lack or total lack of

proper utilization of areas caused by the

condition of the title, diverse ownership of

the real property therein or other condi-

tions, resulting in a stagnant or not fully

productive condition of land potentially

useful and valuable for contributing to and

serving the public health, safety and

welfare.

h. The designation of the delineated

area is consistent with smart growth

planning principals adopted pursuant to

law or regulation.

N.J. Stat. Ann. § 40A:12A-Se, h (West 1993 & Supp. 2004).

Moreover, the LRHL provides that an “area in need of

redevelopment” or “redevelopment area” “may include lands,

buildings, or improvements which of themselves are not

detrimental to the public health, safety or welfare, but the

inclusion of which is found necessary, with or without change

in their condition, for the effective redevelopment of the area

of which they are a part.” N.J. Stat. Ann. § 40A:12A-3 (West

1993); see Hirth v. City of Hoboken, 766 A. 2d 803, 809 (N.J.

Super. Ct. App. Div. 2001).

Thus, New Jersey Courts have held that “an area in need

of redevelopment” as defined in the LRHL is synonymous

with the term “blighted area” as used in the State Constitution,

N.J. Const. of 1947, art. VIII, §3, {1 (1963), which provides

authority for the LRHL. Concerned Citizens of Princeton,

Inc. v. Borough of Princeton, 851 A.2d 685, 689 (N.J. Super.

17

"Ct. App. Div. 2004); see also N.J. Stat. Ann. § 40A:12A-6(c)

(West 1993 & Supp. 2004). Yet the Supreme Court of New

Jersey has recognized that the State’s redevelopment law

““goes far beyond the elimination of the perceptually offensive

slums’” and “an area does not have to be a slum to make its

redevelopment a public use....” Levin v. Township Comm. of

Tp. of Bridgewater, 274 A.2d 1, 5 (N.J.), appeal dismissed,

404 U.S. 803 (1971) (quoting Jersey City Chapter of Prop.

Owner’s Protective Ass’n v. City Council of Jersey City, 259

A.2d 698, 704-05 (N.J. 1969) (pre-LRHL case)); see also

Concerned Citizens of Princeton, Inc., supra, 851 A.2d at

700.

Even prior to the enactment of LRHL, the policy of New

Jersey revealed a broad objective of redevelopment as

benefiting the general community. Concerned Citizens of

Princeton, Inc., supra, 851 A.2d at 703. “[{S)}pecifically, the

Legislature recognized that at times, usually over a long

period, potentially useful land reaches a stage of stagnation

and unproductiveness ....” Levin, supra, 274 A.2d at 18-

19; see also Forbes v. Township of S. Orange Vill., 712 A.2d

255, 258-59 (N.J. Super. Ct. App. Div.), certif. den., 719

A.2d 642 (N.J. 1998). The New Jersey Legislature

determined that the total “unproductivity of unimproved

vacant lot and commercial blight embraced not only economic

deterioration in tax revenues but also all the adverse physical

conditions of the property that individually or in combination

impeded its reasonable productivity and resulted in its negative

impact upon the general welfare and economic well-being of

the community.” Forbes, supra, 712 A.2d at 258-59. The

New Jersey Legislature sought to encompass a broad range of

circumstances that will determine when an “area is in need of

18

redevelopment.” Even “{t}he relative affluence of a

municipality or its residents is irrelevant in that calculus as

long as the determination that an area is in need of

redevelopment” met the statutory factors and was supported

by substantial credible evidence. Concerned Citizens of

Princeton, Inc., supra, 851 A.2d at 699.

New Jersey’s LRHL includes substantive and procedural

safeguards to protect those who may be affected by the

designation of an area as one in need of redevelopment. The

municipality must conduct a preliminary investigation,

followed by a public hearing with the requisite public notice

pursuant to N.J. Stat. Ann. § 40A:12A-6 (West 1993 & Supp.

2004), prior to making a determination that an “area is in need

of redevelopment.” N.J. Stat. Ann. § 40A:12A-5, -6 (West

1993 & Supp. 2004). The requirements of public notice must

be satisfied for a determination that an “area is in need of

redevelopment.” See Concerned Citizens of Princeton, Inc.,

851 A.2d at 709-11. At the public hearing, the municipality or

governing body receives written or oral objections. N.J. Stat.

Ann. § 40A:12A-6(b) (5) (West 1993 & Supp. 2004). A

redevelopment plan must be drawn in accordance with all of

the statutory requirements. N.J. Stat. Ann. § 40A:12A-7

(West 1993 & Supp. 2004).

A municipal government’s finding that an “area is in need

of redevelopment” is subject to judicial review, and such a

determination will be upheld where the determination is

“supported by substantial evidence,” and is not “arbitrary,

capricious or contrary to law.” N.J. Stat. Ann. § 40A:12A-6

(b) (5) (West 1993 & Supp. 2004); Concerned Citizens of

19

Princeton, Inc., supra, 851 A.2d at 700 (quoting Lyons v. City

of Camden, 243 A.2d 817 (N.J. 1968)).

After the redevelopment plan has been adopted by the

governing body, the plan can be implemented by contracting

with private parties for the development and construction of

the redevelopment project. N.J. Stat. Ann. § 40A:12A-8 (f)

(West 1993 & Supp. 2004). When the designated developer

is unable to acquire land in the redevelopment area by

purchase, the municipality may acquire the land through

eminent domain and convey it to the private redeveloper. N.J.

Stat. Ann. § 40A:12A-8 (c).

In summary, as a small, densely populated State with a

growing population and limited availability of undeveloped

land suitable for development, planned redevelopment is

essential to the New Jersey's policy of “smart growth.” To

provide a growing population with shelter, jobs, and other

economic opportunities, the public interest mandates that New

Jersey use available land and infrastructure in a fully

productive manner. New Jersey cannot permit such land to

remain in a stagnated, unproductive or underproductive

condition, while the population and needs of the citizens of the

State are growing. Accordingly, the designation of an area as

one in neec of redevelopment is not limited to situations

where there is an immediate public benefit in elimination of

blighted conditions, but, rather, focuses on the benefits that

ee

20

G. This Court Should Reject a Narrow

“Elimination of Blight” Standard for

Betermining Whether and When the Fifth

Amendment Allows the Use of Condem-

nation for Private Economic Development.

This Court has held that * is for the Legislature to

determine the public purpose s.rved by the exercise of

eminent domain. In Berman v. Parker, 348 U.S. 26 (1954),

the Court upheld the District of Columbia Redevelopment Act

of 1945. The Act provided for the use of eminent domain

power to redevelop slums for aesthetic considerations and

health considerations. When determining whether the use was

a “public use,” the Court stated:

We deal, in other words, with what

traditionally has been known as the police

power. An attempt to define its reach or

trace its outer limits is fruitless, for each

case must turn on its own facts. The

definition is essentially the product of

legislative determinations addressed to the

purposes of government, purposes neither

abstractly nor historically capable of

complete definition. Subject to specific

constitutional limitations, when the

has been declared in terms well-nigh

conclusive. In such case the legislature,

not the judiciary, is the main guardian of

the public needs to be served by social

legislation, whether it be Congress

21

legislating concerning the District of

Columbia or the States legislating

admits no exception merely because the

power of eminent domain is involved. The

role of the judiciary in determining

whether the power is being exercised for a

public purpose is an extremely narrow one.

Id. at 32; see also Haw. Housing Auth. v. Midkiff, 467 U.S.

229, 239-41 (1984) (citations omitted) (upholding Hawaii

Land Reform Act of 1967 as “public use” under the Fifth

Amendment of the Constitution for the taking of private

property). Furthermore, this Court has held that once the

Legislature has declared the public purpose, all other aspects

of effecting that purpose rest in the discretion of the legislative

branch. The exercise of eminent domain must be “rationally

related” to the conceivable public purpose. Berman, supra,

348 U.S. at 33-36; Haw. Housing Auth., supra, 467 U.S. at

240-41.

This Court should reject an overly narrow “elimination of

blight” standard for determining whether and when the use of

eminent domain for “private economic development” satisfies

the public use requirement of the Takings Clause of the Fifth

Amendment, for reasons illustrated by New Jersey’ s efforts to

address essential public needs. New Jersey is the most densely

populated State in the nation. Due to environmental con-

straints, New Jersey has a limited availability of undeveloped

land to address the needs of the growing population, such as

housing, employment and the protection of the fragile

environmental resources. New Jersey has adopted a policy of

22

“smart growth” which encourages addressing these public

needs, while also providing for the conservation of natural and

environmental resources by promoting development and

redevelopment in areas already developed and in areas without

significant environmental constraints. The New Jersey Local

Redevelopment and Housing Law addresses the public needs

of the State, by allowing municipalities to designate areas in

need of redevelopment, create plans for the designated

redevelopment areas, and by encouraging private parties to

implement these redevelopment plans. The public needs of a

state such as New Jersey require going beyond a narrow

“elimination of blight,” standard. Rather, in appropriate

circumstances condemnation for “private economic

development” serves to provide essential public needs and

thus readily satisfies the public purpose requirement of the

Takings Clause.

23

CONCLUSION

For the foregoing reasons, this Court should reject a

narrow interpretation of the “public use” requirement of the

Takings Clause of the Fifth Amendment to the Constitution.

DATED: December 2, 2004.

Respectfully submitted,

PAUL H. SCHNEIDER

Counsel of Record

AFTYFA H. BOLTON

GIORDANO, HALLERAN & CIESLA, P.C.

125 Half Mile Road, P.O. Box 190

Middletown, N.J. 07748

(732) 741-3900