The ACLU-NJ is representing tavern owner Cheng "Terry" Tan who is fighting the Jersey City redevelopment Agency's attempt to take his restaurant through eminent domain. Jersey City wants to take Mr. Tan's land to give it to a parochial school, St. Peter's Prep, for its football field.
Mr. Tan's land is located in one of Jersey City's many redevelopment zones. The original plan, created in Sept. 1999, called for the zone that included Mr. Tan's land to be used for residential or commercial purposes. However, when the final plan was adopted in Oct. 1999, the area was re-zoned for use as an athletic field or educational facility. According to Mr. Tan, the change occurred because the Redevelopment Authority learned that St. Peter's Prep desired the land to build a 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 Mr. 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.
Mr. Tan and the ACLU-NJ contend that the government violated the constitutional principle of separation of church and state 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.
The ACLU-NJ will also argue that the Redevelopment Agency'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, 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. Peters Prep since, as a religious institution, it pays no taxes on the land it owns.