Court addresses eminent domain: Cherry Hill NJ Courier Post, 4/27/07

By Richard Pearsall

Is land subject to government seizure merely because it has lain idle for many years?

That was one of the key questions that arose Thursday as the state Supreme Court took up the thorny issue of eminent domain.

The case pits the borough of Paulsboro against the owner of a 63-acre tract of vacant land.

The high court was asked Thursday to step in and find the state's 1992 law dealing with redevelopment and eminent domain unconstitutional, even as the Legislature wrestles with the law in its own terms, considering two proposals to amend it.

The law is so broad, state Public Advocate Ronald Chen argued in court Thursday, it "could be applied to virtually any piece of land in this state."

On the contrary, responded Robert Goldsmith, an attorney representing the League of Municipalities, the 1992 redevelopment law is a necessary tool to spur development.

"This is about the greater good," Goldsmith said. "You can't let a property owner stand in the way."

At issue in the case of Gallenthin Realty Development, Inc. v. Borough of Paulsboro is a tract, mostly wetlands, that Paulsboro designated for redevelopment as part of its broader plan to build a port facility on its riverfront.

While it has no specific use in mind yet for the land, borough attorney James Maley said the borough is entitled to designate it "in need of redevelopment" on the basis of the "lack of proper utilization" clause in the 1992 law.

"Its only use was that it was being farmed," Maley said, a reference to the landowner's sale of reeds that grow on the land as feed for cattle.

Chen and Peter Dickson, the attorney for landowner George Gallenthin, noted the state Constitution refers to "blighted areas" in authorizing the use of eminent domain for redevelopment and asked how Gallenthin's land could be made to fit that definition.

As for lack of proper utilization, Dickson asked the court to consider the value the state places on both farmland and wetlands.

Justice Barry Albin asked Dickson pointedly about what he called the "larger picture."

"Isn't this about more than your client?" Albin asked. "Even if his property standing alone doesn't meet the definition, doesn't it fall within a larger scheme?"

Dickson praised Paulsboro's plan to redevelop two former industrial tracts on the river as a port, saying "we hope it succeeds."

But, he said, pointing to a map, his client's property is "disconnected" from the port area.

"They have no idea what they want to do with this property," he said.

The access road to I-295 that has been talked about would "only nick the northernmost end of the property," a segment he said could be obtained if necessary by conventional means.

Paulsboro argues the proper venue for changes in the 1992 redevelopment law is the Legislature, not the courts.

Assemblyman John Burzichelli, a Democrat who also serves as mayor of Paulsboro, is the sponsor of a reform bill that passed the Assembly last year.

State Sen. Ronald Rice, D-Newark, has introduced an alternative bill that is under consideration, along with the Burzichelli initiative, in the committee that Rice chairs.

The Public Advocate supports the Burzichelli version, which redefines blight but grandfathers projects already in the pipeline.

But he also believes the issue of eminent domain should be pursued in the courts and is involved in cases involving Long Branch and Lodi as well as Paulsboro.

"Do you want us to address the constitutional issue head-on?" Chief Justice James Zazzali asked the advocate.

"There would be a public benefit" if the court did, Chen replied.

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