Inconvenient News,
       by smintheus

Thursday, June 14, 2007

  Eminent domain: NJ Court uses dictionary skills

Two years ago the Supreme Court ruling in Kelo v. New London set off intense controversy about municipal over-reaching in eminent domain seizures. Because SCOTUS couldn't be bothered to determine the meaning of "public use" in the Fifth Amendment, it produced a monstrous judgment that gave communities the power to transfer ownership of almost any property to anybody who coveted it.

Yesterday in another eminent domain suit, a NJ Court struck a blow for common sense by reaching for a dictionary.

The basic flaw of the Kelo decision is due to the illiteracy and sloth of the Supreme Court Justices. They were tasked with comparing an eminent domain seizure in New London—where perfectly good houses were taken in order to hand them over to a developer who planned to put in more pricey housing (whose new owners would pay higher taxes than the poor slobs whose houses were taken)—against the text of the Fifth Amendment, which limits such seizures.

No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.


SCOTUS did quibble to no apparent effect about the meaning of "public". It's a word that virtually no society has ever clearly defined in law or otherwise, so debating its meaning was nearly futile.

Yet the Supremes neglected to consider the more important term, "use". The word, from Latin usus, means "employment, practice, enjoyment, benefit"...as in "usufruct" (literally "to get the benefit of the produce from a property" such as a farm). New London had no intention of enjoying the benefit of the land it was seizing; it was handing the property over to a developer, who would get the employment of the land. New London simply was aiming to increase taxes on the property, nothing more. That is not "use" by any definition of the term, ancient or modern.

As a result of having ignored the plain meaning of words, the Supreme Court produced a monumentally foolish ruling.

By contrast, the court in NJ hearing an eminent domain case actually took the trouble to investigate what "blighted" means under the relevant law.

While the state constitution authorizes government redevelopment of only "blighted" areas, the 1992 law said one way to define blight was "not fully productive."


The court concluded that the "fully productive" clause was so vague as to permit seizures on almost any grounds. In this case, the wooded property in question simply was not being put to commercial use.

“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.


Instead of being distracted by the vague phrase "fully productive", the court concentrated on the meaning of "blight". The Justices even reached for a dictionary. Think of that.

The New Jersey justices included a lengthy discussion of the word “blight” that included the views of writers on the subject and the dictionary definition.


The ruling seems to be rather a direct challenge to the Kelo decision.

Critics of eminent domain hailed the ruling as far-reaching and significant.

"The decision rejects the argument that municipal government can take New Jersey homes and businesses simply because they believe the land could be put to better use," said Ronald Chen, the state's Public Advocate, who filed a friend-of-the-court brief in the case on the side of the Gallenthins.

Connie Pascale, a senior attorney with Legal Services of New Jersey, described the decision as a "step back from the kind of carte-blanche policy that has allowed so many redevelopment projects to go forward."


Chen has identified the great flaw in the Kelo decision. New London wished for the properties to be put to "better use", rather than "public use". And Pascale is right, that kind of misreading of the Fifth Amendment amounts to a carte blanche given to the wealthy and powerful.

crossposted from Unbossed

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2 Comments:

  • "Critics of eminent domain hailed the ruling as far-reaching and significant."
    Great story,Smintheus.Fantastic Blog.
    Are the people of the states, now only to depend upon what has proven so often to be the unreliable currents of legislation.
    Are these actions, in state legislative protections designed to cause the people to forget that they had demanded their own protections from that very state or federal government that has now stepped up to protect them from the oppressive actions, only they themselves can commit.May I place a link on my blog to yours for my readers enlightentment?

    By Blogger dadebreis, at 10:02 AM  

  • Thanks, I'm honored to be linked. I rarely write about Kelo (though it is an outlandish decision), but I do ruminate frequently on the thrashing that the Constitution has been getting in our times.

    By Blogger : smintheus ::, at 4:52 PM  

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