Courts must protect the politically powerless from having their property rights abused

Pacific Legal Foundation has filed an amici brief in the Supreme Court of New Jersey on behalf of itself, the National Federation of Independent Business, Institute for Justice and Ilya Somin arguing that New Jersey courts must take seriously their obligation to enforce the limits of the state constitution. Like many states, New Jersey only allows private property to be condemned and given to another private party for redevelopment if it is blighted. In 62-64 Main Street, LLC v. Hackensack, a borough argues that this requirement is nothing more than a formality—if the government asserts that property is in need of redevelopment, that should be sufficient. But a post-Kelo decision by the Supreme Court of New Jersey requires more; it puts the onus on the government to support its designations with substantial evidence of actual blight. This case asks the Court to extend that precedent to all redevelopment condemnations in the state.

As our brief explains, state and local governments have routinely abused individual property owners to benefit politically connected interests. Although examples are abundant, a few of the more egregious ones will give you a taste of the extent to which property owners have been at the mercy of politicians. St. Louis declared a profitable shopping mall “blighted” in 1997 in part due to the fact that it didn’t have a Nordstrom. New York declared Times Square blighted to acquire land to give to the New York Times for a new headquarters. In New Jersey, a city designated an occupied manufacturing facility that had received over $300,000 in improvements in the previous five years and employed more than 300 people “blighted.”

In Kelo v. City of New London, the U.S. Supreme Court approved the taking of property from one private party to give it to another as satisfying the Fifth Amendment’s “public use” requirement. There was a widespread public backlash against this decision, and a number of states have changed their laws to prohibit mischievous takings like these. But these reforms will not be long lasting unless courts are willing to enforce the limits on eminent domain.

The people most vulnerable to this abuse are the politically powerless: the poor, racial minorities, and small business owners. Their interests are sacrificed to those of politically powerful developers and corporations. Too many times, lower-income, minority communities have been bulldozed to make way for the affluent. Our brief argues that the Court should recognize who is bearing these costs and protect them. The political process is simply not up to the task.