WHEREAS, on June 23, 2005, the Supreme Court of the United States
decided the case of Kelo v. City of New London in which a majority
of the Court determined, among other things, that the "public purpose
provision of the United States Constitution should be broadly interpreted
to effectuate legislative judgments as to what particular needs justify
the use of the power of eminent domain; and
WHEREAS, the result in Kelo was a plurality decision, reflecting
the Court's deep division on the question presented, namely whether
private residential real property may be the subject of eminent domain
in order to satisfy a public purpose such as a planned development;
and
WHEREAS, the result of the Kelo decision was that, where there
existed a comprehensive plan of development that is deemed to satisfy
the public purpose provision of the Constitution, even though the
"motivation" for the plan might be economic development, municipalities
could use the eminent domain power to achieve the desired end as long
as all parties' legal rights were established in the process;
and
WHEREAS, the Kelo majority opinion specifically emphasized that
nothing in the decision should preclude a state from placing further
restrictions on the takings power; and
WHEREAS, one of the issues faced by the Court was the appropriate
line between public and private use; and
WHEREAS, under the settled law of the State of New Jersey, the
limitless sovereign power of the State may be employed to take real
property as may be required for public safety, necessity, convenience
or welfare so long as just compensation is paid the owner, but it
is for the legislative branch of government to determine what constitutes
a public use as to limit that broad power, with the result that the
power is to be used in a reasonable non-arbitrary manner, and not
greater than necessary to effectuate the public use; and
WHEREAS, the Borough of Waldwick believes that one of the primary
purposes of government is to protect the rights of owner-occupied
residential real properties within the Borough against governmental
takings that do not have as their goal, either (a) the transfer of
private property to public ownership for the creation of, for example,
a road, hospital or military base or (b) the transfer of private property
to private owners for the specific purpose of making the same available
for public use (e.g. railroad, public utility or stadium).
BE IT ORDAINED, by the Mayor and Council of the Borough of Waldwick,
County of Bergen, and the State of New Jersey, that the Borough shall
not employ the power of eminent domain so as to deprive owner-occupiers
of residential real properties of such ownership rights in the absence
of a specified purpose (a) to transfer the property to public ownership
for the creation of a public use including, but not limited to a road,
hospital, military base, sewer, water line, sidewalk, right-of-way,
flood control, park, open space, erosion control mechanism and the
like, or (b) to transfer the property to private owners for the specific
purpose of making the same available for public use.
No ordinance or any item or part thereof shall take effect without
the Mayor's approval under N.J.S.A. 40A:60-5(d), unless the Mayor
fails to return the Ordinance to the Council as prescribed above or
unless, the Borough Council upon consideration of the Ordinance following
its return, shall by vote of two-thirds of all of the members of the
Borough Council resolve to underwrite the veto. This ordinance shall
take effect immediately upon final passage and publication as required
by law or from the date of the assuming of the position defined herein
whichever is later.