Today, the New Jersey Supreme Court issued its unanimous opinion in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, an extremely important case addressing the government's power to condemn property that is "blighted" (hat tip: Seton Hall law prof Marc Poirier). The Court held that property which is merely "not fully productive" cannot be considered "blighted" and therefore cannot be condemned under Article VIII, Section 3 of New Jersey's Constitution, which states that:

The clearance, replanning, development or redevelopment of blighted areas shall be a public purpose and public use, for which private property may be taken [by eminent domain]. . .

As the Court points out in its opinion, "most property in the state" can be considered "not fully productive" and therefore subject to condemnation as blighted under the state government's definition of the term. Instead, the Court concludes that the term "blight" has a "negative connotation" and is limited to those areas where "deterioration or stagnation that has a decadent effect on surrounding property." This definition strikes me as still excessively broad and vague. After all, all sorts of conditions can be considered "deterioration" or have at least a small "decadent effect" on the surrounding community. If I fail to repave an old driveway on my property, it might start to look deteriorated, and there may be a small impact on the value of neighboring property. Nonetheless, the Court's definition is at least somewhat more reasonable than the virtually limitless definition (including all property that is "not fully productive") in the New Jersey blight law it struck down.

Unfortunately, the problem of overly expansive definitions of blight is not limited to New Jersey. It is a nationwide problem affecting many states, as I discussed in this op ed for the Legal Times last year. Even many recent post-Kelo eminent domain reform laws incorporate definitions of "blight" that still permit condemnation of virtually any property (see this paper for details).

Nonetheless, the New Jersey decision is a notable step forward, especially coming on the heels of City of Norwood v. Horney, last year's Ohio Supreme Court decision reaching a similar conclusion under that state's constitution. Ohio and New Jersey are both states notorious for their numerous abusive "blight" condemnations, and neither had passed any effective legislative reforms in the wake of Kelo v. City of New London.

Hopefully, Gallenthin and Norwood will help kick off a new trend of judicial skepticism towards expansive definitions of "blight."