Eminent Domain - The Record - Supreme Court Limits Use

Published in the Bergen Record, Thursday, June 14, 2007

Ruling limits use of eminent domain

By SCOTT FALLON
STAFF WRITER

New Jersey towns will have a harder time seizing private property for redevelopment after the state Supreme Court ruled Wednesday that targeted property must be blighted and not merely underused.

The ruling will have far-reaching effects, state officials said, and could aid property owners fighting eminent domain in Lodi, North Arlington and Passaic.

The 42-page unanimous decision said that town officials cannot seize homes and businesses simply because they believe those properties can be put to better use.

"The court is giving notice that municipalities no longer have unfettered access to private property," said Harvey Pearlman, a lawyer who represents a Passaic homeowner whose house was condemned by the city without his knowledge.

The court wrestled with what constitutes blight in deciding a case from Gloucester County, where the town of Paulsboro sought to condemn a 63-acre tract made up mostly of wetlands.

Chief Justice James Zazzali wrote that Paulsboro considered blight to be property that is "stagnant or not fully productive" but could be rehabilitated.

"Under that approach, any property that is operated in a less than optimal manner is arguably 'blighted,' " he wrote. "If such an all-encompassing definition of 'blight' were adopted, most property in the State would be eligible for redevelopment."

Zazzali wrote that blight includes deterioration or stagnation that has a debilitating effect on surrounding property as outlined in the state constitution.

The ruling was hailed by homeowners and business owners fighting city hall to keep their property.

In Lodi, borough officials tried to redevelop trailer courts on a 20-acre plot along Route 46 into a strip mall and upscale senior housing. They said the new project would bring in 10 times the tax revenue.

It also would displace more than 200 residents. Both sides are awaiting an appellate court ruling, but residents said Wednesday's decision will help.

"Naturally, I'm thrilled," said Kendell Kardt, head of Save Our Homes, a residents' group that has led the fight against eminent domain. "This will have a positive impact."

Lodi's attorney, John Baldino, did not return a phone call seeking comment. The borough has contended that the trailers are indeed in such poor condition that they met the definition of blight.

Residents of Porete Avenue in North Arlington had been fighting the town for years after it agreed to seize 16 properties to allow EnCap, the Meadowlands developer, to build a 1,600-unit luxury village there. But those officials were voted out of office and new leadership in town government refused to follow through with the plan. They are now locked in a legal battle with the developer.

"This is clearly a victory for the mayor and property owners," Thom Ammirato, a spokesman for the borough, said of Wednesday's ruling. "This bolsters our argument. You can't take someone's property just because you feel it's underutilized."

State Public Advocate Ronald Chen, who issued a blistering report last month citing abuses of eminent domain, said the ruling is a tool that can be used to stem the process.

He urged the state Senate to pass a bill, already approved by the Assembly, that further narrows the definition of blight along with adding other protections.

Wednesday's ruling is "not the total answer, but it does give us tools to deal with it more effectively," Chen said.

Richard Clark, a lawyer who represents towns in land-use cases, said the impact will be greatest in suburban and rural areas and less in cities, where the housing stock is older and in some areas more dilapidated.

"It will certainly slow down development outside the urban areas," he said.

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