March 24, 2015

New Jersey takes a step back from protecting property rights

By Jonathan Wood Attorney

Unfortunately, the New Jersey Supreme Court just significantly cut back on that state’s constitutional protections for private property. New Jersey’s Constitution provides that private property cannot be taken for economic redevelopment except in the case of blight. In the wake of the U.S. Supreme Court’s disastrous Kelo decision, which removed any check the U.S. Constitution has on these takings, the New Jersey Supreme Court breathed new life into its state constitution’s protections. It held that the state must prove that property satisfies the constitutional requirements for blight before it could exercise the awesome power of eminent domain. Mere speculation or conclusory government statements were not enough. This week, that changed. Now, the Constitution’s protections only apply to a subset of cases.

PLF, joined by IJ, NFIB, and Professor Ilya Somin, filed an amicus brief arguing that this constitutional protection is a key safeguard for property owners. Without it, they — particularly poor and racial minority property owners — are likely to have their rights abused by more powerful political interests.

Although the most recent decision is unfortunate. It garnered a noteworthy dissent, of which this is only a taste:

To the majority, this is a “mundane scenario” in which local officials designated dilapidated, rundown properties in a downtown section of a city for redevelopment. It is more than that. According to the record, the case involved owners of private property who spent hundreds of thousands of dollars to improve their land in recent years, leveled part of the buildings on the properties, and presented three different development plans to town officials — at the very time the town moved ahead with its own plan to designate the area for redevelopment.

That information offers context; the legal question presented is even more important. Today, the Court permits privately owned property to be designated for redevelopment — and ultimately for a taking — even though local officials have not found that the land has a negative effect on surrounding properties. That approach marks a retreat from Gallenthin.

The majority supports its position with pro-development views. The Court’s responsibility, though, is to apply the law in accordance with the Constitution and protect the individual rights our Constitution guarantees. Those rights serve as an important check on the power of eminent domain and extend to residents, homeowners, and businesses that do not want to be removed from their property and community against their will.

To be sure, the redevelopment of deteriorated properties that cause actual harm to neighboring land can be of great value to a community. When local officials attempt to take private property for that purpose, however, they must first satisfy the commands of the Constitution. Among other things, they must make a meaningful showing of actual blight. Because that did not occur here, I respectfully dissent.

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