NJ eminent domain "blight" and wetlands decision

Ilya Somin isomin at gmu.edu
Wed Jun 13 12:50:57 PDT 2007


For those interested, I have posted some more detailed comments on this case here:

http://volokh.com/archives/archive_2007_06_10-2007_06_16.shtml#1181761894

Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/
SSRN Page: http://ssrn.com/author=333339

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Members of this list may be interested in today's unanimous decision of 
the New Jersey Supreme Court in Gallenthin  Realty Development, Inc. v. 
Borough of Paulsboro, -- A.2d --, 2007 WL 1687274 (June 13, 2007). 

The court strikes down the designation by the Borough of Paulsboro of a 63 
acres of wetlands and waterfront as "in need of redevelopment" on the 
basis of a finding that the land was "not fully productive".  New Jersey's 
constitution specifically includes within "public use" the power to 
condemn "blighted areas."  The decision contains a substantial discussion 
of what "blight" means.  Basically, although the definition can evolve, 
its core meaning is to address"deterioration or stagnation that negatively 
affects surrounding properties".  While community redevelopment is 
acknowledged as an important state goal that is facilitated by authorizing 
the condemnation of blighted areas, the condemnation power cannot exceed 
this definition of blight.  A community may not condemn property merely 
because its current use is "less than optimal" or "not fully productive." 
The court invalidated Paulsboro's designation on this basis; it had not 
made sufficient factual findings to justify condemnation.  However, the 
court did not invalidate the underlying eminent domain statute provision 
as unconstitutional, as some parties requested.  The statute includes 
language defining a blighted area inter alia as one that is not fully 
productive.  The court read the statute narrowly to avoid facial 
unconstitutionality.  What is required to justify condemnation of blighted 
areas for redevelopment is a determination  that the land is not fully 
productive because of  "deterioration or stagnation that negatively 
affects surrounding properties."  Such a determination, properly supported 
by facts, will be given judicial deference.

Also of interest in the opinion is a brief discussion of the importance of 
taking into account the value of wetlands and the natural services they 
provide when making redevelopment decisions.  Most of the parcel at issue 
was state-protected wetlands (and New Jersey has assumed responsibility 
for wetlands protection under the Clean Water Act).  The court said that a 
municipality considering condemnation could not ignore these values and 
functions, and must take the valuable services provided by wetlands into 
account in determining whether the area was "in need of redevelopment". 
I'm not quite sure how to parse this or implement it.  This part of the 
opinion may fit in with last year's holding that municipalities in New 
Jersey may use the condemnation power to preserve open space.  (Footnote 
here, there is also a pending federal lawsuit challenging the City of 
Wayne's use of ostensibly "open space" condemnation that will prevent a 
Muslim group from building a mosque -- herein of RLUIPA.   But that's 
another email.)

It might also be of interest that this decision comes down during what 
appears to be a stalemate on legislative eminent domain reform in the 
state.

Warmly,

Marc R. Poirier
Professor of Law  and Martha Traylor Research Fellow
Seton Hall University School of Law
One Newark Center
Newark, NJ  07102
973-642-8478

Somebody has to plant the seed so that sanity can happen on this earth. -- 
Chogyam Trungpa, Rinpoche 
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