NJ court: Underuse is not justification to take private land
Source: phillyBurbs.com, by Geoff Mulvihill
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.
