Another Anti-Kelo Decision. This One from New Jersey

Speaking in the context of a lengthy opinion interpreting the term “blight,” the New Jersey Supreme Court struck down a Borough’s attempt to take largely vacant land for for redevelopment. The Borough argued unsuccessfully that under its interpretation of the statute, the land was “blighted” because it was “stagnant and not  fully productive.”  The court held that it was for the judiciary, not the legislature to interpret the term “blight,” and to determine whether the subject land was actually blighted. On these facts, no blight existed. Gallenthin Realty Dev., Inc. v. Borough of Paulsboro (N.J. 2007) 924 A.2d 447. 

In the court’s words: “We recognize that government redevelopment is a valuable tool for municipalities faced with economic deterioration in their communities. As noted, our Constitution expressly authorizes municipalities to engage in redevelopment of ‘blighted areas.’  However, Paulsboro interprets subsection 5(e) to permit redevelopment of any property that is ‘stagnant or not fully productive’ yet potentially valuable for ‘contributing to and serving’ the general welfare. Under this approach, any property that is operated in a less than optimal manner is arguably ‘blighted.'” If such an all-encompassing definition of ‘blight’ were adopted, most property in the state would be eligible for redevelopment. We need not examine every shade of gray coloring a concept as elusive as ‘blight’ to conclude that the term’s meaning cannot extend as far as Paulsboro contends. At its core, ‘blight’ includes deterioration or stagnation that has a decadent effect on surrounding property. We therefore conclude that Paulsboro’s interpretation . . . which would equate ‘blighted areas’ to areas that are not operated  in an optimal manner, cannot be reconciled with the New Jersey Constitution.” 524 A.2d at 460.

The court relied in part on the California Supreme Court’s decision in Sweetwater Valley Civic Ass’n. v. City of National City (Cal. 1976) 555 P.2d 1099, which struck down an attempt to condemn a golf course for redevelopment, holding that to justify a finding of blight there had to be something affirmatively wrong with the property, and the fact that the condemnor thought it could put the golf course to a higher and more productive use did not justify such a finding.

And so, even as the New Jersey Supreme Court characterized the Constitution as a “living-charter,” in this case it held that  its bite cut against the condemning agency for a change. So maybe this case should be filed under the heading MAN BITES DOG.  It’s about time.

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