New Twist In Eminent Domain
Seizes Land For "Green Space"

PISCATAWAY, N.J. — Property rights issues are not limited to the West.

Larry Halper, a third generation Piscataway farmer, may lose his farm because Piscataway has started condemnation proceedings against him. They want the farm for "green space."

In 1998, Halper ignored politicians holding a news conference across the street from his 75-acre pumpkin farm. They were talking about buying one of the last areas of undeveloped land in the town — his farm. They say they want to preserve it as open space.

Halper told them he would not sell the land, which helps support his 79 year-old mother and 80 year-old aunt.

When Halper refused to sell, the town began condemnation proceedings.

Government condemnation of property is used mostly for public improvements such as new schools, broader roads or utility easements, but now towns are condemning land not for improvements, but to keep improvements from taking place.

According to Mike Hardiman, a Washington lobbyist for the American Land Rights Association, a property rights group, a state wanting to widen a four-lane highway to eight lanes would condemn 100 feet on each side of the highway to gain the land for the new road, but now municipalities are using eminent domain to take stretches of green simply because there are no houses there, and the communities want to keep it that way.

Hardiman and other leaders in the nationwide movement to preserve property rights call this trend bizarre and troubling, but environmental activists try to justify the extreme measure saying it combats suburban sprawl.

The victims of this new trend across the country generally are farmers and ranchers.

The Newwark, N.J., Star-Ledger newspaper reports that North Brunswick, N.J., is trying to seize a 104-acre farm before the family sells it to a housing developer. Warren Township recently voted to condemn a 100-acre farm, while Bridgewater, N.J., is considering a similar action.

"It's a sign of the times in 2001," says Peter Furey, executive director of the New Jersey Farm Bureau. "We've never had this level of residential growth and expansion into open space."

Furey says never has the Farm Bureau devoted so much time to counseling farmers in New Jersey on how to preserve property rights.

Richard Epstein, an expert on property rights, calls condemnation for greenways rather than highways a shameful innovation.

"I've never heard of this before," says Epstein, a University of Chicago law professor and author of "Takings: Private Property and the Power of Eminent Domain."

In the 1960s and 1970s, farms around Piscataway were bought up and developed for industrial parks. Halper's place is the only operating farm left.

John O'Grady, a former member of the Piscataway planning board, says the town allowed such actions because industrial parks brought in more tax revenue for the cities.

It all happened long before "open space" became the buzzword it is now, says O'Grady.

While Halper sees himself as the final victim in the town's ill-conceived growth planning, many in the conservation movement assert unabashedly that condemnation, though not ideal, is a justifiable means of saving the last slivers of open space.

"We advocate towns using eminent domain wherever they don't have willing sellers," says David Epstein, executive director of the Morris Land Conservancy, a Boonton, N.J., conservation group.

"In my mind, what's the difference to the property owner if they take dollars to develop it or dollars to turn it into open space?" Epstein says.

The difference, say Halper and property-rights activists, is millions of dollars. Halper says he had been offered close to $20 million for his land. Piscataway wants to pay him slightly more than $4 million.

Property-rights advocates say owners rarely get the real value of their property in condemnations. If they try to fight the figure in court, they often get bled to death by mounting legal bills.

Halper is fighting the city, but he says his mother is afraid the police will break down her door and drag her away.

"We've been called foolish for sitting on valuable property like this," Halper says. "It's a lifestyle. My mother and my aunt want to live their lives out here, and they have a right to do that — we thought."

Halper has applied for the state Department of Agriculture's Farmland Preservation Program. If accepted, he would sell his right to develop the land while keeping the property. New Jersey has 483 farms totaling 71,000 acres in the program. About 30,000 more acres of farmland are making their way through the process.

Furey says the Farmland Preservation Program is usually fair to farmers, paying them market value for their development rights, but it is often an unpalatable option.

Farmers see their land as their greatest asset, Furey says. Every year they have resisted selling out, that asset has appreciated. The eventual sale of that asset gleams on the horizon as a return for their years of working the land.

"From their standpoint it's theirs to liquidate," Furey says.