The Washington Post

New Jersey Casino Reinvestment Development Authority seeks to condemn Atlantic City homes to promote “development” around a casino [Updated with a correction]

In what seems like a replay of the famous 1998 case in which Donald Trump and the New Jersey Casino Reinvestment Development Authority sought to condemn a house in order to build a parking lot for one of his casinos, the city is again trying to condemn homes in order to benefit a casino:

It was an Atlantic City plot as familiar as a rerun on Turner Classic Movies: Homeowner vows to save house against the forces of eminent domain, played out in the shadow of a casino. It has been playing for the better part of two decades in this troubled seaside resort, since Vera Coking famously stood up to Donald Trump.

But this latest version has impeccable and elegant casting. On Tuesday morning, homeowner and onetime piano prodigy turned piano tuner Charlie Birnbaum, 67, the son of Holocaust survivors, found so many ways to show just how much his three-story brick walkup building at 311 Oriental Ave., on the back side of Revel Casino Resort, means to him.

He held a news conference with anti-eminent domain lawyers from the Virginia-based Institute for Justice. He watched an afternoon court battle against the Casino Reinvestment Development Authority, joined by tenants from two nearby housing developments also being condemned by the CRDA….

It’s a complicated story, past and present, one discussed for hours in court Tuesday afternoon, when the CRDA argued that it was within its statutory mandate to take Birnbaum’s home for future, as yet unspecified, development.

These sorts of “economic development” takings have become more controversial since the Supreme Court ruled they are constitutionally permissible in the close 5-4 Kelo decision in 2005. Kelo generated a massive political backlash that led 45 states to adopt eminent domain reform laws. Unfortunately, New Jersey is one of many states that has adopted only weak reforms that offer property owners little or no meaningful protections.

Although New Jersey’s eminent domain law is relatively permissive, the Institute for Justice – the public interest firm that represents Birnbaum and previously represented the property owners in the Kelo and Coking cases – argues that even New Jersey does not permit condemnation when the government doesn’t even have a clear plan for what it will do with the property after it gets control of it. Even if the promise of private “economic development” is sufficient legal justification for using eminent domain, the government should at least have to prove that the promised development is actually going to occur.

NOTE: I have done pro bono work for the Institute for Justice on other eminent domain cases, though I have no involvement in this one.

UPDATE: I should note an unfortunate error in the original post: the Casino Reinvestment Development Authority, the government agency seeking to condemn these properties is an agency of the New Jersey state government, not Atlantic City’s local government. I apologize for the mistake and thank Dan Alban for bringing it to my attention.

Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and popular political participation. He is the author of "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain" and "Democracy and Political Ignorance: Why Smaller Government is Smarter."

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