Sean Ryan is associate editor of Real Estate New Jersey
The conference was a milestone in that it was the first time since the controversial ruling was passed that industry experts gathered to voice their concerns. An elite group of more than 50 industry leaders, comprised mostly of real estate lawyers and developers, were on hand to share those concerns in a fast-paced and interactive discussion.
"The 5-4 split vote means these issues can be revisited in the future," Verniero said during an introductory speech at the event, sponsored by Real Estate Media, parent company of GlobeSt.com. Sandra Day O'Connor was a dissenter, so her retirement will not necessarily alter the balance. Anthony Kennedy, however, might flip his opinion based on a "very provocative sentence" in the concurrent opinion he wrote on this case regarding favoritism, Verniero notes. "If he found an acute risk of favoritism in a particular case, he might break the existing majority. Justice Kennedy seems to be sending a cautionary message to the government and those who practice in this area of law."
"When you have a developer who comes in with a proposal for an area, and doesn't own a lot of land--even if you don't have anything illegal or untoward going on--it could be the thing that gets Justice Kennedy's button on the higher standard of scrutiny," added panelist Kevin Moore, partner with Sills Cummis Epstein & Gross. During the forum, Moore took on the position of the developer/redeveloper. Other panelists included Ed McManimon, partner with McManimon & Scotland, who unofficially representing the municipalities in the discussion and Jim Turteltaub, partner with Carlin & Ward, representing property owners. Real Estate New Jersey editor Eric Peterson moderated the discussion.
In New Jersey, the Kelo ruling has little effect, since the state constitution already allows blighting property for a public purpose, including private development, McManimon said. Moore warned against the public awareness of the case, which has become one of the most talked about even outside real estate circles. "The distortion of general media in this case could create political backlash that could wind up with poorly-thought-out legislation that could doing what we were afraid Kelo would do: make it harder to proceed."
Turteltaub questioned the definition of "blight," particularly when the designation decides if a development proceeds. A property might be lost simply by due of being in a urban enterprise zone. The process of blighting land might stagnate development, he added.
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