John Kramer
John Kramer · February 15, 2019

ARLINGTON, VA—Atlantic City property owner Charlie Birnbaum, whose longtime family home was targeted for eminent domain abuse, gets to stay put. So ruled the New Jersey Appellate Division in a 29-page published ruling it issued today.

The Atlantic City fixture and longtime piano tuner won a landmark victory for property rights today when the court rejected the New Jersey government’s attempt to use eminent domain to take the family home he inherited from his parents. The long-running court battle, which has drawn national media attention, pits Birnbaum’s family history against the state Casino Reinvestment and Development Authority (CRDA), which seeks to take the home in service of a “development” project that it can neither explain nor identify.

When he learned of the ruling today, Charlie said, “This home has been so special to our family, and the fact that it’s standing and still here is enormously important. I’m grateful for the outcome, and I’m grateful for having been able to fight for so long.”

The court pointed out that CRDA was acting as little more than a land speculator, taking other people’s property by force and then holding onto that land in hopes of someday putting it to some unspecified use. In the ruling, which upheld a lower-court decision by Atlantic County Assignment Judge Julio Mendez, the court stated, “Under these highly unusual circumstances, it was reasonable for the judge to question whether the Project would proceed in the foreseeable future. . . . CRDA was attempting to ‘bank land in hopes that it will be used in a future undefined project.’ Approval of the condemnation could well leave the Birnbaum property vacant for an indefinite period of time, as the CRDA ‘wait[s] for the right project to present itself.’ . . . We affirm, because the CRDA could not provide evidence-based assurances that the Project would proceed in the reasonably foreseeable future.”

“Today’s opinion is a victory for property owners in New Jersey and nationwide,” said Robert McNamara, a senior attorney at the Institute for Justice (IJ), which is defending the Birnbaums in the case alongside New Jersey eminent domain firm Potter & Dickson. “The power to seize private property through eminent domain is one of the government’s most frightening powers, and today’s opinion reaffirms that it can only be used for good reason—and that courts will stand in the way if government officials try to do otherwise.”

CRDA first announced its intention to condemn the home in 2012, when it adopted a resolution calling for the use of eminent domain to “complement the new Revel Casino.” In the intervening seven years, the Revel has endured two different bankruptcies and an extended closure, only recently re-opening as the “Ocean Resort Casino.” Through all that turmoil, though, two things never changed: CRDA never wavered from its desire to condemn the property, and CRDA never once articulated what (if anything) it would do with the land after it knocked down the Birnbaums’ longtime family home.

In 2016, a New Jersey trial court called CRDA’s insistence on condemning the property despite changed circumstances and in the absence of any real plan “a manifest abuse of the eminent domain power.”

As the court pointed out in today’s ruling, courts nationwide have continued a backlash against the U.S. Supreme Court ruling in the infamous case of Kelo v. City of New London, which allowed the government to take people’s homes for private development, something polls show 90 percent of the public consistently rejects. The court wrote today, “Since Kelo was decided, greater judicial and legislative scrutiny of redevelopment-based takings has occurred.”

“CRDA officials attempted to replay what happened in New London after the Kelo decision, where nearly 20 years after the approval of the redevelopment plan nothing has been built in the former neighborhood,” said IJ President Scott Bullock. “The New Jersey appellate court’s answer to CRDA was crystal clear: Think again. Property rights matter, and you can’t just take land in the hope that something else will be built in the future.”

“CRDA never had a plan for this home other than knocking it down and then thinking really hard about what they might want to put there instead,” explained IJ Senior Attorney Dan Alban. “If that reasoning was enough to let them take this home, it would be enough to let them take literally any home they wanted, for any reason or for none.”

Charlie tells his story in the following video, in which he also plays the piano:

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