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Eminent-domain ruling
victory
for individual rights
EDITORIAL, thnt.com
Online, June 18, 2007
In a welcome -- if somewhat
surprising -- decision last week, the state Supreme Court limited government's
ability to seize private property for redevelopment. With its unanimous
ruling, the Supreme Court overturned two lower court decisions that had upheld
the right of a South Jersey municipality to include a 63-acre tract of land in
its redevelopment plan on the basis that the land was being underutilized.
This page and others have long worried about government abuse of eminent domain,
made possible by the vague wording in the state's condemnation law, particularly
of the overused term "blighted." Chief Justice James Zazzali clamped down
on the overreaching. "The New Jersey Constitution does not permit
government redevelopment of private property solely because the property is not
used in an optimal manner," Zazzali wrote for the court. "If such an
all-encompassing definition of "blight' were adopted, most property in the state
would be eligible for redevelopment."
Let's hope the court's clear-headed articulation of necessary boundaries will
entice Trenton to move forward with stalled legislation intended to close some
of the loopholes in state law.
There is no doubt eminent-domain has been an important and necessary tool for
development projects that serve the public good. But in a nation that has
always placed great stock in the rights of the individual, and particularly the
rights of an individual to own and control his own property, it seemed clear
governments were to use their eminent domain powers sparingly, and with great
forethought.
In the last several years, however, governments have expanded their notion of
when it is appropriate to seize private property. In many cases,
governments act not out of some immediate and obvious public benefit — like
building a road — but out of the much more diffuse notion of "public good."
Most often the project involves some sort of private construction that officials
promise will bring more jobs, better housing and/or greater tax revenue.
Despite the fact that eminent domain has been used to great effect in
redeveloping some down-on-their-luck urban areas, including New Brunswick and
Perth Amboy, it isn't at all clear that the power of the government ought to
include being a conduit for private investment. A capitalistic economy
depends on a small, relatively unobtrusive government; much of any city's
development or redevelopment is rightly left to the marketplace. The
government's main role in that marketplace is to guard against its abuses -- not
participate in them.
There is something both instructive and ironic in the fact that, in this case,
the state's public advocate -- the man charged with overseeing and protecting
the public good -- sided with the landowners, not the municipality. If the
town really was using its powers of eminent domain for the public good, then why
was the man who defends the public on the other side?
All of this suggests that it is not simply the vague language in eminent-domain
legislation that needs to be revisited; the state also needs to grapple with the
question of what constitutes a public benefit, and whether the public is better
served by a government that eases the way for private developers, or makes sure
they don't squash too many little folks on their way to redevelopment and
riches.
This is a more difficult question than it first seems; New Brunswick and Perth
Amboy have both benefited from their government's hand in their redevelopment,
and few, if any, would wish those cities back to what they were. But that
doesn't mean developers ought to have had the path cleared for them.
People who own property deserve adequate warning, a fair hearing and sufficient
compensation; and it will always be the government's responsibility to ensure
that they receive those things.
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