Eminent Domain - NY Times - Supremes rule town overreached

Published in the New York Times, Thursday, June 14, 2007

Town went too far in trying to take land, Court says

By KAREEM FAHIM

In a decision that could affect redevelopment battles across New Jersey, the State Supreme Court ruled unanimously yesterday that a town had overstepped the State Constitution’s definition of “blight” when it tried to take private property for development.

“Although community redevelopment is an important municipal power, that authority is not unfettered,” Chief Justice James R. Zazzali wrote in the court’s opinion. In the case, the town, Paulsboro, had argued that property owned by the Gallenthin family was “not fully productive,” and thus was in need of redevelopment, a designation that opened a 63-acre parcel to takeover using eminent domain.

The court disagreed. “The New Jersey Constitution does not permit government redevelopment of private property solely because the property is not used in an optimal manner,” Justice Zazzali wrote. He said that areas could be designated in need of redevelopment only if they, “as a whole, are stagnant and unproductive because of issues of title, diversity of ownership or other similar conditions.”

His opinion was at once a full-bodied discussion of what constitutes blight and a marker of the churning debate over eminent domain taking place in New Jersey and across the country since a United States Supreme Court ruling in 2005 that established the rights of localities to take over land for economic development.

The decision yesterday was hailed by the state’s public advocate, Ronald Chen, who had lobbied for changes in state law that would tighten the definition of “blighted areas.”

“It’s an important moment for the court to speak,” Mr. Chen said. “The need for redevelopment is critical in New Jersey, as is the need to protect property rights.” He said that blight, as set out by the state’s highest court, “was not an impossible definition” for municipalities to meet.

Paulsboro, an industrial town of 6,500 people, sits across the Delaware River from the Philadelphia airport. The Gallenthin family had owned property there since 1951. In 2003, as part of a broader development plan, the town designated the property as a redevelopment area, and before the decision yesterday it had fended off court challenges from the property owner.

Yesterday’s decision could have an immediate effect on at least two eminent domain cases that are being heard in New Jersey courts, legal experts said.

Richard Epstein, a law professor at the University of Chicago, said the decision could be seen in the context of a recent judicial pushback against broad definitions of blight, citing recent decisions in Ohio and California.

“There is going to be more rooted opposition the more people feel threatened,” he said, adding that the term had been used as a trump card of sorts for developers and local politicians. “If you could define by fiat an area as blighted or seedy, the battle was over.”

The New Jersey justices included a lengthy discussion of the word “blight” that included the views of writers on the subject and the dictionary definition.

A clause on blighted areas was introduced into the Constitution by Jane Barus, a delegate to the constitutional convention of 1947. She had intended to enable “the rehabilitation of our cities,” the court wrote.

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