NJ court: Underuse is
not justification
to take private land
From thnt.com Online,
June 13, 2007
The New Jersey State Supreme Court
issued a blow Wednesday to the way municipalities use their power of eminent
domain to acquire private land.
In an unanimous ruling, the court said that for land to be taken against the
owner's wishes it must be ""blighted'' and not merely ""not fully productive.''
The ruling is a victory for private property rights but could make it more
difficult to redevelop some communities.
The case centers on a 63-acre tract in Paulsboro made up mostly of wetlands just
across the Delaware River from Philadelphia International Airport.
The Gallenthin family started using the land more than 100 years ago as a place
to dock boats carrying produce from southern New Jersey to Philadelphia.
The family has owned the land since the early 1950s.
Over the last decade, the small industrial town has been courting redevelopment.
In 2003, it included the Gallenthin site on a redevelopment plan, which would
make it eligible to be taken. At the time, the town planner, George
Stevenson, told the planning board that there was no activity on the land and
the community would be better served by having something there.
The Gallethins sued to keep the land from being taken but an appeals court sided
with the town.
Wednesday's ruling, written by Chief Justice James R. Zazzali, overturned the
earlier decision, saying that for land to be condemned it has to be truly
blighted.
""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.
The ruling gives judicial validation to an argument that watchdogs have been
expressing: that towns in New Jersey and elsewhere, which use eminent
domain as a key tool in revitalization efforts, have been using the power too
liberally.
The backlash has grown since the U.S. Supreme Court ruled two years ago that New
London, Conn., could take over privately owned homes on behalf of a real estate
developer.
In New Jersey, the state public advocate, Ron Chen, has released two reports
since 2006 calling for restrictions on how eminent domain can be used. The
state Assembly has also advanced a bill aimed at creating restrictions for
eminent domain use; the bill is stalled in the senate.
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