Sense on eminent domain

Friday, June 15, 2007

The New Jersey Supreme Court is getting well-deserved national praise for a decision that restores old-fashioned principle to the eminent domain debate: Government should not take a person's property just because it might be used more profitably for a condo project or a col lection of swank boutiques or some other high-value development.

That common-sense idea shouldn't be revolutionary. That it is being greeted as such shows how far the use of eminent domain has strayed from the original purpose of enabling the construction of parks, schools, roads and other useful public facilities. Too often, in New Jersey and other states, eminent domain has become a convenient tool for plumping up property tax ratables or benefiting a well-connected few.

Enter Chief Justice James Zazzali and his fellow justices, applying an overdue brake on that dangerous trend.

The court on Wednesday unanimously told the Gloucester County community of Paulsboro that a 63-acre parcel could not be labeled "blighted" just because the town declared the property could be used more productively. The definition of "blighted" is crucial be cause the state constitution re quires a finding of blight for a government taking of private property.

Paulsboro's definition of "blight" was capriciously broad, so much so that using the Paulsboro standard would mean almost any property in the state could be a redevelopment target, as Zazzali properly noted. What land on which a bungalow sits wouldn't be more valuable as host to a strip mall?

The justices struck a sensible balance. The court didn't undermine eminent domain in cases where municipalities can show that genuine blight or other legitimate factors justify taking private land. But the court put towns and developers on notice that official overreaching won't pass muster.

That should have been the state of the law all along. But in recent decades, judges, including the justices of the U.S. Supreme Court and some prior New Jersey high courts, have been willing to defer to the judgment of ambitious local officials.

The Zazzali court left room for further refinement of the concept of blight. The Paulsboro case won't be the last that wrestles with defining the proper use of eminent domain.

But the case marks a welcome rebalancing of the law. A community's mere desire to boost the local economy is not enough to trump a landowner's rights.