Trenton, NJ --Because current state law defines “blight” so broadly that it could apply to virtually any property in New Jersey, the courts must narrow that definition to protect the rights of property owners across the state, according to a brief filed today by New Jersey Public Advocate Ron Chen.

The friend-of-the-court brief was filed as the Supreme Court prepares to hear arguments in the eminent domain case, Gallenthin Realty Development, Inc. v. Borough of Paulsboro, which will review the 15-year-old Local Redevelopment and Housing Law.

One section of that law allows government entities to condemn land for private redevelopment if it deems that land to be “in need of redevelopment” because it is “not fully productive.”  The statute also allows local governments to seize private property if it suffers from a “lack of proper utilization” and could be put to a more beneficial use.

Under such broad criteria, “there is no parcel of land in New Jersey that is safe from such pursuit,” Chen wrote in the brief.

This is the third brief the public advocate has filed in eminent domain cases that are currently moving through the New Jersey courts. The other two briefs were filed in cases involving property owners in Long Branch and Lodi. In addition, the department is working with legislators to craft a reform law that would prevent abuses of eminent domain and protect homeowners and businesses.

In the Paulsboro case, the public advocate urged the Supreme Court to reject the lower court’s reasoning that would allow the Borough of Paulsboro to designate a 63-acre vacant parcel “in need of redevelopment” solely because it is deemed “underutilized.” Under the statute, this is the first step a local government must take before it can condemn property.

Chen asked the high court to remand the case for further court review.

The land at issue is in Paulsboro and lies alongside the Mantua Creek. Official state maps indicate most of the property is wetlands and therefore protected from development under various state laws. In these circumstances, the lower courts should have rejected the argument that the area is blighted because it is undeveloped, Chen said

The public policy of New Jersey clearly supports the preservation of open land, Chen noted. In fact, the Supreme Court recently ruled in Mount Laurel Twp. V. Mipro Homes, L.L.C. that a local government can condemn property to preserve open space.

The state constitution allows property to be taken in “blighted” areas for purposes of private redevelopment, but it does not define “blighted.”

“The Constitutional framers clearly saw blight as a current condition – a visible and severe decay in an area – not somebody’s idea of what a parcel or neighborhood could become through forced redevelopment,” Chen said. “Under our Constitution, a local government can take private property for purposes of private redevelopment only if that area is truly blighted.”

“We are asking the Court to address this pressing issue to ensure that New Jersey residents who might face the prospect of losing their homes or land are accorded the full constitutional protections they deserve,” Chen said.

The Public Advocate’s legal argument focuses on the broad wording of subsection (e) of the redevelopment law. Under that section, property that is deemed to be improperly utilized or not fully productive can be taken through eminent domain. The brief takes no position on whether the record in the case would support a blight designation under a different section of the state redevelopment statute.

In 1992, the Legislature passed the Local Redevelopment and Housing Law, which expanded the criteria for determining an area to be blighted, giving local governments much broader discretion in targeting property for condemnation.

Chen detailed compelling proof that the drafters of New Jersey’s Constitution intended strict limits to be placed on the ability of towns to take public land for private redevelopment.

Chen argued that it is the role of the courts to determine the circumstances under which the State Constitution allows municipalities to seize private property from landowners.

“In order to enforce the constitutional mechanism it ultimately rests upon this Court to construe and interpret the language of the Constitution and determine whether the Legislature has strayed beyond its limitations,” the brief said. 

Chen further argued that the burden of proof should be on the government to show an area is blighted. He noted that when government seeks to impinge upon constitutionally- protected rights, it generally is required to carry the burden of proof.

The brief also explores the history of the term “blight” which dates to the 1930s when Chicago sociologists defined it as, essentially, a state of “deterioration, decay and stagnation” that, without redevelopment, would become a slum..

The current Local Redevelopment and Housing Law steps far beyond that definition by envisioning what a parcel could be, rather than what it is, Chen said.

Read the Public Advocate's brief in this case.
Read the Public Advocate’s report on eminent domain.