Eminent domain at the bayshore

“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, 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.

Tension over the Downe docks

It’s no secret that the marinas and supporting businesses all along the NJ bayshore are struggling. The classic predictable human response to environmental pressures is increased tension among members of the community. That’s not unique to us. It happens everywhere. But the environmental pressure is certainly increasing and tensions are rising. The watermen here, pushed out of their docks this year, are furious that another marina doesn’t face the same costs as they do here. The fact is that I echoed their complaints without knowing anything about the actual costs of either marina.

By coincidence, I talked with two other nearby recreational marina owners earlier in the day on other unrelated business. I feel for them. They are really working hard to make a sustainable future. I try to be supportive. I remind myself that I have a lousy track record of predicting the future so maybe my negative forecasts for the industry will turn out dead wrong. But to me, it doesn’t look good for recreational fishing as a business. The only bright spot I see is the local commercial fishing and aquaculture businesses.

Tonight a guy I really don’t know from Fortescue who is known by some of the other marina guys here, was outraged by something I said in the newspaper and put in writing about the tension here. He seemed ready to make a scene to call me out for not knowing the facts. He was right, I don’t know that facts. It’s not my intent to know the facts. We have a biographer for that and it’s just not my area of interest. My role, particularly right here, is to record the human struggles and response.

I hadn’t actually put together the face of this guy, a township committeeman, with the story until that moment that he was the guy that our watermen complain about. I should know the local committeemen but I don’t. My first thought was if he is upset by something this minor like a newspaper article and a blog post, then we could have an explosion when the book comes out. As far as I know, the publisher goes into much greater detail on the Fortescue marina finances and mismanagement. But other than these casual comments, I really don’t know much about the topic. I only know what the guys talk about, and lately that’s mostly complaints.

The mayor chimed in too with complaints. That’s nothing new and he is more tactful. The mayor knows that reporters deliberately play us against each other for the purpose of getting their story. They get statements from me and a statement from him deliberately because they know that we have conflicting opinions. That’s been going on for two decades. Normally a third community member, Meghan, who is better respected than either of us guys, offers a balanced middle-of-the-road opinion to wrap up the story.

The committeeman probably doesn’t know that I’ve been sued close to a dozen times for millions of dollars over my unpopular opinions. He probably doesn’t know that I have judgements from those lawsuits far more than I’ll ever earn or be worth, and that none of that intimidates me from continuing to express an opinion. He might not even know that I’ve received death threats and was almost killed in a shocking plot to “take me out” by a local politician in his same position years ago. He did not know about the organizational structure of Money Island or the history of Baysave. Again, it’s not my job to get into that. I just know that my opinions are not popular with local government. It’s always been that way and nobody expects that to change. Nevertheless, my opinions will always be easy to read.

Fortescue primarily serves recreational fishing while Money Island is moving toward serving large commercial operations. The shift is causing tensions among the former recreational boaters and small commercial boats that used to dock here.
Fortescue primarily serves recreational fishing while Money Island (shown) is moving toward serving large commercial aquaculture operations that will emerge over the next decades. The shift is causing tensions among the former recreational boaters and small commercial boats that used to dock here.