Fordham Law Eminent Domain Conference: Contrasting Interpretations of Blight in NJ and NY

By Janice Dooner Lynch, Esq.

On February 11, 2011, the Fordham Urban Law Journal presented a continuing legal education conference at the Fordham University School of Law entitled, “Taking New York: The Opportunities, Challenges, and Dangers posed by the Use of Eminent Domain in New York.” Many attorneys and non-attorneys from the eminent domain field spoke about various aspects of the challenges which have arisen in this area of the law in recent years.

One of the key issues discussed during the conference was the differing definitions of “blight” in each state, which is a major factor in determining whether a government may appropriate property by way of its eminent domain powers. Professor Lynn Blais of the University of Texas School of Law pointed out that while most states have enacted legislation limiting the use of eminent domain to take property for economic development or to be transferred to a private entity, such legislation has, at the same time, provided for an exception to this limitation in the case of “blight.” In other words, an eminent domain taking of property for non-public purposes can take place if a showing can be made that such a taking is necessary for the eradication of “blight” on the property. The following questions then arise: how is the concept of “blight” to be defined by the state legislature or constitution, and how is much judicial review of that definition can be exercised by the courts? The varying approaches to this issue by different states can be seen in the New York State Court of Appeals in Kaur v. New York State Urban Dev. Corp., 933 N.E.2d 721, 892 N.Y.S.2d 8 (2010), and the New Jersey Supreme Court in Gallenthin v. Paulsboro, 191 N.J. 344, 924 A.2d 447 (2007).

Professor Ilya Somin of the George Mason University School of Law, who filed an amicus curiae brief on behalf of the property owners in the Kaur case, explained the reasoning behind the decision by the New York State Court of Appeals in this case. The New York State Constitution endows the legislature with the power to eliminate “insanitary” or “substandard” conditions found in real property by clearing, replanning, reconstructing, and rehabilitating such areas. N.Y. Const., Art. XVIII, Sec. 1. The controversy in the Kaur decision lies less in this clause of the state constitution than in the court’s interpretation of its power to review a determination of blight. In Kaur, the court authorized the use of the state’s eminent domain powers to allow redevelopment and expansion by Columbia University in the West Harlem neighborhood of Manhattan by holding that a finding of blight should be judicially overturned “only where there is no room for reasonable difference of opinion as to whether an area is blighted.” 933 N.E.2d at 730 (emphasis in original). Under this judicial standard, Professor Somin pointed out that since, as a practical matter, the Kaur court’s standard for overturning a blight determination is virtually impossible to meet, the court effectively held that no finding of blight in an eminent domain case can be judicially overruled. Professor Paula Franzese of the Seton Hall University School of Law added that since the Court of Appeals has given such “blind deference” to the legislature, the New York judiciary has effectively abdicated its role in eminent domain cases.

The contrasting New Jersey approach to determining blight in eminent domain cases was expounded upon by Vice Dean Ronald K. Chen of the Rutgers University School of Law. Like the New York Constitution, the ”Blighted Areas Clause” of the New Jersey Constitution provides that the clearance and redevelopment of blighted areas is a public purpose which triggers the eminent domain powers of the government. N.J. State Constitution, Art. VIII, Sec. 1 and 3. Unlike the New York State Court of Appeals in Kaur, the New Jersey Supreme Court in Gallenthin did not grant “blind deference” to the Borough of Paulsboro’s designation of a 60 acre parcel of undeveloped wetlands as “blighted.” Instead, the Gallenthin court held that the government may not designate private property for redevelopment unless there is “substantial evidence” that the property meets the definition of “blighted area,” which the court defined as one that is characterized by “deterioration or stagnation that has a decadent effect on surrounding property.” 924 A. 2d at 460. Clearly, an undeveloped wetlands parcel would not meet the court’s definition of “blighted.” The impact of the decision is that the New Jersey judiciary has the power to overrule a finding of “blight” by the legislature or an administrative agency in an eminent domain case.

In short, the Fordham Law Eminent Domain Conference highlighted the distinction between the hands-off approach to eminent domain cases by the New York Court of Appeals and the more interventionist philosophy of the New Jersey Supreme Court. The long-term effect of this distinction is that, post-Kaur, New York property owners will be essentially powerless to challenge a blight designation by the legislature or other administrative agencies, no matter how egregiously inaccurate such a designation may be. New Jersey property owners, on the other hand, may still hope to seek judicial relief from an unjust determination of blight as a result of the Gallenthin decision.

Janice Dooner Lynch, Esq., guest blogger, is a graduate of Princeton University and Fordham University School of Law and is currently in private practice in New York.

Ed. comment -  Neither the New York or New Jersey Legislatures have modified their respective eminent domain statutes as of the posting of this blog, although 43 states, according to the Institute for Justice, have modified their eminent domain procedures post Kelo. See our related blog posts on Kaur and Gallenthin. - William J. Ward, Esq.