Eminent Domain - Ledger - Braun: Not so fast

Published in the Star-Ledger, Thursday, June 14, 2007

[Bob Braun]
Caution, development ahead
'Anything goes' becomes 'not so fast'
with Supreme Court's decision on eminent domain


The New Jersey Supreme Court proved once again yesterday that the U.S. Supreme Court isn't necessarily the final word on important controversies like eminent domain -- at least not in this state.

Just two years -- almost to the day -- after the nation's highest court ruled it would not "second-guess" local governments on eminent domain decisions, the New Jersey court unanimously did just that, overturning a decision by Paulsboro to take privately owned waterfront for development simply because it wasn't adequately "productive."

The state's highest court has gone far beyond the federal judiciary in protecting individual rights in fields like education, housing, and employment discrimination. Yesterday, it applied that same independence to private property rights.

The ruling, written by Chief Justice James Zazzali, was an acrobatic masterpiece of splitting hairs, coming down at one key point to a definition of the word "or."

Still, the decision made one important, far-reaching point: The courts in New Jersey will not rubber-stamp either development-minded towns or even the Legislature, despite the deference given to them in the past.

The court, it ruled, stands as the ultimate protector of individual and property rights in New Jersey, no matter how U.S. courts rule -- and even if the state Constitution's Blighted Areas Clause empowers the Legislature to allow public taking of private land:

"By adopting the Blighted Areas Clause, the People entrusted certain powers to the Legislature, and the courts are responsible for ensuring that the terms of that trust are honored and enforced," Zazzali wrote. "We find no merit to Paulsboro's assertion that the Blighted Areas Clause divests the Judiciary of that responsibility."

The New Jersey court's decision doesn't stop the use of eminent domain to take private property for public use -- and Zazzali repeatedly insisted he was not declaring the state's condemnation law unconstitutional.

What it does signal is that the courts, as well as municipalities and the Legislature, will demand a major role in determining what constitutes a "blighted" area.

So local officials will have to come up with a better reason for taking land than simply declaring it -- as Paulsboro did -- underutilized or "not fully productive."

To do that, the court -- without specifically saying so -- had to ignore decades of its own precedents in which it consented to an ever-expanding definition of "blight" that would allow public condemnation.

Indeed, in a 1971 case involving Bridgewater, Zazzali's ruling conceded, the same court "expanded the definition of 'blight' to include areas that were not necessarily contemplated by the framers but were within the 'true sense and meaning' of the term."

About as close to "anything goes" as it gets.

But no more.

The decision yesterday requires municipalities to show that the targeted property has a negative impact on adjoining property: "deterioration or stagnation that negatively affects surrounding properties."

That word "stagnation" is critical to the decision. The land wasn't under a slum. It wasn't abandoned. It was open land. The town relied on one section of the state's land-use law that allows condemnation based on "growing lack or total lack of proper utilization" of property.

Paulsboro, relying on the testimony of hired experts, declared the land wasn't being fully productive; it wasn't used in a way to bring increased ratables to the town.

By refusing to give its own definition of the word "blighted," the court clearly meant this decision to be a beginning of a new string of land-use decisions, not the final word. Indeed, it said the town might have used other sections of the law to condemn the property -- or it could still come back with better evidence to try again.

The judges did not switch on a "red light" to the use of eminent domain in New Jersey -- but, in this state, the signal is no longer the green light allowed by the United States Supreme Court.

Amber, perhaps.

Bob Braun's columns appear Monday and Thursday. He can be reached at (973) 392-4281 or at rbraun@starledger.com

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