June 14, 2007

The Kelo Antidote

Many conservatives took affront to the Supreme Court ruling in the Kelo case, in which the court upheld the right of a city to use eminent domain to force property from one private owner to another. The decision was seen as yet another judicial overreach, an expansion of the notion of "public use" that left private-property owners vulnerable to the whims of state and local politicians looking for favors from developers and monied interests. It started a legislative reaction to curb the use of eminent domain around the nation.

Today the New York Times reports that some courts have heard the message. New Jersey's state Supreme Court slapped down a similar use of eminent domain, upholding the appeal of a property owner whose use displeased the town's leadership:

In a decision that could affect redevelopment battles across New Jersey, the State Supreme Court ruled unanimously yesterday that a town had overstepped the State Constitution’s definition of “blight” when it tried to take private property for development.

“Although community redevelopment is an important municipal power, that authority is not unfettered,” Chief Justice James R. Zazzali wrote in the court’s opinion. In the case, the town, Paulsboro, had argued that property owned by the Gallenthin family was “not fully productive,” and thus was in need of redevelopment, a designation that opened a 63-acre parcel to takeover using eminent domain.

The court disagreed. “The New Jersey Constitution does not permit government redevelopment of private property solely because the property is not used in an optimal manner,” Justice Zazzali wrote. He said that areas could be designated in need of redevelopment only if they, “as a whole, are stagnant and unproductive because of issues of title, diversity of ownership or other similar conditions.”

His opinion was at once a full-bodied discussion of what constitutes blight and a marker of the churning debate over eminent domain taking place in New Jersey and across the country since a United States Supreme Court ruling in 2005 that established the rights of localities to take over land for economic development.

The family whose land was at risk of takeover has owned it for 56 years. Paulsboro wanted it for community redevelopment, which usually means selling it cheap to someone who will raise the tax base of the city. The Gallenthin family objected to the exercise of eminent domain, but had lost repeatedly in the courts -- until now.

This could be an important victory for land-rights activism in the US. It's a state decision, so the legal impact is completely within New Jersey. However, the setback to government power over private property will hearten those enraged by the Kelo decision as at least a small victory. (h/t: CQ reader Keith R)


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Comments (6)

Posted by AnonymousDrivel | June 14, 2007 4:16 PM

It's amazing that such cases needed to course through the legal system at all.

I'll raise a glass to both the Gallenthin family for its defense of right and the New Jersey court for common sense. It isn't often one gets to present a throaty cheer for the courts, but I'll give this one its due:

Hip Hip, Hooray!

Posted by wyatt | June 14, 2007 5:02 PM

He said that areas could be designated in need of redevelopment only if they, “as a whole, are stagnant and unproductive because of issues of title, diversity of ownership or other similar conditions.”

One would think that regardless of the level of productivity, unless there is a road or such to be built, the owners would need to be convinced to sell their property instead of having it seized by the state.

Posted by Rich Horton | June 14, 2007 5:45 PM

It is a good week for property rights. The Missouri Supreme Court also handed down a ruling that limits what local communities can call "blight", although it is more in the ridiculously expensive end of the spectrum (see here.)

Posted by mrlynn | June 14, 2007 9:29 PM

Au contraire, these are not decisions that courts should be making at all, except on narrow disputes over how a statute should be interpreted. The courts should be remanding these issues back to the legislatures for clearer definitions, not deciding what those definitions should be.

Maybe there was a role for the courts in these specific cases, but in general the approach should be: issue a cease-and-desist order to the municipality and a stay pending clear language from the legislature and/or a constitutional convention.

/Mr Lynn

Posted by TrueLiberal | June 15, 2007 10:36 AM

Justice Zazzali for SCOTUS !!!

Posted by Cral | June 15, 2007 1:41 PM

The courts are not the remedy for all unwise actions of government. Mr Lynn is expressing the view that needs more consideration in topics like this.

Those who control our culture have successfully sold the assumption that all deep and important policy matters should ultimately be solved by judicial legislation. The left makes the presumption that all of it's societal preferences should be ensconced in court decisions - the right should know better. If a court makes a passive decision - allowing decisions of other government bodies to stand - there is the recourse of influencing the elected government. If the court makes an active decision that is a mistake, there usually is no recourse.

The way to handle this is to demand laws that are written with more protections in them and constitutions amended if necessary.