ACLU of New Jersey Defends Property Owner Against Government Seizure of Land to Give to Religious School

October 18, 2005

FOR IMMEDIATE RELEASE
Contact: media@aclu.org

NEWARK, NJ -- The American Civil Liberties Union of New Jersey announced today that it is representing tavern owner Cheng "Terry" Tan, who is fighting the Jersey City Redevelopment Agency's attempt to take his restaurant by eminent domain. Jersey City officials want to take Tan's land to give it to a parochial school, St. Peter's Prep, for its football field.

 "I've been a business owner here for over 18 years," said Tan, the owner of The Golden Cicada on Grand Street. "I've worked hard and become part of the community. Now, the government is taking my property from me for no other purpose than to provide land for a private school's football field that the general public has no right to enjoy the use of."

Eminent domain is a legal doctrine that allows the state to appropriate private property for its own use without the owner's consent. Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of a public project such as a road, and the owner of the required property is unwilling to negotiate a price for its sale.

The land in question is located in one of Jersey City's many redevelopment zones. The original plan, created in September 1999, called for the zone that included Tan's land to be used for residential or commercial purposes. However, when the final plan was adopted in October 1999, the area was re-zoned for use as an athletic field or educational facility. According to Tan, the change occurred because the Redevelopment Authority learned that St. Peter's Prep wanted to acquire the land for a school football field. St. Peter's did buy land in that zone and began to build a field. However, it then determined that it needed additional land so that its field could reach official football field length. After St. Peter's failed to persuade Tan to sell to them at a price it found acceptable, the Redevelopment Agency stepped in on St. Peter's behalf and initiated eminent domain proceedings.

Tan and the ACLU of New Jersey contend that the government is illegally using taxpayer dollars to fund a particular religious institution by re-zoning the area and taking his land in order to aid St. Peter's Prep. Under both the Establishment Clause of the United States Constitution and the "No-Preference" Clause of the New Jersey Constitution, a governmental entity such as the Jersey City Redevelopment Agency cannot act with the primary intent to aid a particular religious entity. Likewise, its actions cannot have the primary effect of aiding one religion over another or preferring religion over non-religion.

"Government is not allowed to invoke its power in order to benefit a particular religious organization," said Ronald Chen of Rutgers Law School-Newark's Constitutional Litigation Clinic. "Here, the power of eminent domain is being used to specifically benefit an institution that promotes a particular religious faith." Chen, along with Michael Kates of Nashel Kates Nussman Rapone & Ellis in Hackensack, are the ACLU of New Jersey's volunteer cooperating attorneys representing Tan.

The ACLU of New Jersey will also argue that the Redevelopment Authority's actions violate the Takings Clause of the United States Constitution, which permits the government to take a property owner's land if it is for a "public use" and the property owner receives just compensation. Last year, the United States Supreme Court held that, while the term "public use" can be read broadly, the Takings Clause does not permit the government to use its power of eminent domain if its purpose is simply to take property from one private party in order to give it to another private party.

In last year's Supreme Court case, Kelo v. City of New London, the city in question successfully argued that the increased tax revenue that would result from the taking met the "public use" standard. However, in the present case, the city will actually lose tax revenue if the land is given to St. Peter's Prep since, as a religious institution, it pays no taxes on the land it owns.

The case, Jersey City Redevelopment Agency v. Cheng Tan, et al., is scheduled for a hearing on Nov. 4, 2005.

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