It is an ugly story illustrating much of what is wrong with private-to-private eminent domain transfers in this country. And to the surprise of few people paying attention, New Jersey Gov. Chris Christie, a would-be 2016 presidential aspirant, is on the wrong side of it.
Christie has thus far ignored a popular petition to halt the development (which, according to CNN, has lasted this long in part due to a "set of tax incentives" supported by the governor to encourage the project's investors "not to give up on construction in 2011"), and he has not (per Moody) commented directly on the case. But when CNN asked him to comment on the general idea of private-to-private eminent domain transfers, the governor let out this snort; go to 2:11 in the linked video to appreciate the full awfulness of it:
It depends upon the circumstances. And that is what eminent domain is all about, and that's why we have the ability for people to go to court and work through that. So, depends on the circumstance; you can't give a generalized answer on that. The generalized answer on that is just sophomoric, and I won't give one.
Actually, you can give a generalized answer on the infamous practice enshrined in (dubious) constitutionality in the 2005 case Kelo v. The City of New London, which is what more than 40 states did in response to the righteous popular backlash against the notion that a neighborhood could be torn down and handed to a developer. It does not require an active moral imagination to conclude that men with guns should not have the right to take your property and give it to someone else just because the new guy might squeeze more tax dollars from the land. Chris Christie was on the wrong side of the backlash, too, according to this October 2013 Reason piece by John K. Ross:
A bill in New Jersey (A3615) that would weaken protections for property owners sailed through the legislature, bolstered by support from the New Jersey League of Municipalities and the New Jersey Builders Association. Governor Chris Christie signed it into law last month. According to the bill's authors, the law codifies two state court rulings requiring cities to prove that property is a threat to public health and safety before seizing it and also provide "fair and adequate" notice to property owners when eminent domain is authorized.
In reality, the law attempts to remove the protections proponents say it codifies. "This law is transparently an attempt to go back to the old way of doing business," says Peter Dickson, a New Jersey-based land-use attorney.
For instance, far from demanding cities prove a property is a threat to health and safety, the law says officials need only assert that the property somehow impedes land assembly—a standard that puts virtually every property in the state at risk.
The law also allows for the creation of "non-condemnation redevelopment areas" where officials do not have eminent domain authority—unless a property owner refuses to sell. In the case of such refusal, a non-condemnation area can be transformed into a condemnation area. The intended effect of the provision is to confuse property owners.
"If you're in a non-condemnation area," says Dickson, "you're going to say, 'why should I go hire a lawyer and spend tens of thousands of dollars to challenge this designation if it doesn't put me under eminent domain?'" But failing to challenge the designation within 45 days means you lose the right to challenge it, even if condemnation occurs many years later.
New Jersey, as Jim Epstein points out in this great piece about the Port Authority, is a Progressive-era nightmare of centralized governance. The governor there wields so much power compared to, say, the governor of Texas, that it's natural for him or her to view any principled devolution of that power to be "sophomoric." It is indeed sophomoric to voluntarily eschew using nails, if one is a hammer.
For the rest of us, the vision is a bit more clear: Don't bulldoze homes just to give them to a developer. If a "conservative" can't mouth that simple sentence in 2015, then he deserves the electoral failure awaiting him.
