The Liberty Papers

I grew up in New Jersey in a bedroom community called Piscataway. It wasn’t (and isn’t) all that much different from any other Central New Jersey town, except, perhaps, for the fact, that it was one of the only towns north of Princeton that had an actual working farm. Cornell Farms was a little dairy farm that operated on one of the few undeveloped areas of the part of town where my family lived. I still remember passing by it every day on the school bus that I had to take when I started high school. Little did I know at the time that the powers-that-be were doing whatever they could to take Cornell Farms away from the family that owned it.

Matt Labash puts it this way in The Weekly Standard:

Piscataway (an Indian term meaning “it is getting dark”) was once a charming farm community. But like so much of America, it is now a charmless depot off the Turnpike, a 19-square-mile blur of box stores, strip malls, and high-density housing. In the middle of this, sprawled over 75 acres, sits the Halper farm, one of the last agricultural tracts in Piscataway.

The farm has been in the family since 1922 and until the city officially took ownership, in 2004, was co-owned by numerous Halper aunts and cousins, most of whom live elsewhere. Mark Halper still ran a mulch business on the land, and his cousin Gary oversaw a horse farm on another corner, making ends meet by giving pony rides to children. But Larry Halper (Mark’s twin brother) and his wife Clara still worked and lived on the land, though they owned only a one-twelfth interest in the total family acreage. Even though everyone was getting bounced, it was their plight and property that attracted Clements.

The township has made feints at taking the Halper property for decades. In 1975, it actually did force the Halpers to sell 25 acres, which Piscataway added to an adjoining park. But the current festivities got underway in earnest in 1998. Around that time, the city purportedly grew nervous that some of its last privately owned green space might fall into the hands of ghastly developers, the kind that are regularly found in bed with the local politicians, making New Jersey a notorious “pay to play” state. Take a ride around the perimeter of the Halper farm, and such concerns don’t seem to have plagued city planner consciences in the past, what with all the quaint mom ‘n’ pop operations like Wal-Mart, Starbucks, and Hollywood Tans that blanket the town like bad wall-to-wall carpeting.

From the look of things, plenty of people are making hefty profits selling Piscataway real estate off to the highest bidder. But to the city’s thinking, the Halpers shouldn’t be among them. They only worked the farm for nearly a century, why should they make money off it? Never mind that they’d received unsolicited offers for their land for decades and managed not to sell. Piscataway officials were coming after their property anyway, vowing to maintain it as “open space.” An incredulous Clements sks what could be “more ‘open space’ than a farm?”

I’m not sure whether it’s because this is my hometown we’re talking about here, but this latest example of Kelo inspired insanity gone wild has me particularly enraged. It was an open secret in town that the Halper farm was a target of the powers-that-be for some time.

How dare they operate a farm and offer horse riding lessons in the middile of our nice, peaceful NIMBY/preppie/DINK community !

How dare they provide some fun for kids !

I’ve seen alot of changes to my hometown since I moved to Virginia sixteen years ago. Many (most) of them have been improvements. But when I drive past what used to be Cornell Dairy Farm in the future, and see a Super Target (or whatever it might be) that ended up there only because the City Council decided to steal land from the Halper family, I can only mourn the fact that liberty means nothing in one town in Central New Jersey.

Duncan Currie writes in The Weekly Standard about Wednesday’s decision by the Ohio Supreme Court in Norwood v. Horney, which he calls a crushing blow to the rationale behind the infamous Kelo decision. Currie identifies three areas in which the Norwood decision undermines the rationale behind the U.S. Supreme Court’s decision in Kelo v. City of New London:

First: The Ohio High Court implicitly rejected the rationale behind Kelo. “Although economic factors may be considered in determining whether private property may be appropriated,” wrote Justice Maureen O’Connor, “the fact that the appropriation would provide an economic benefit to the government and community, standing alone, does not satisfy the public-use requirement of Section 19, Article I of the Ohio Constitution.”

The Ohio Constitution’s public-use clause is essentially the same as the one in the Fifth Amendment to the U.S. Constitution, so the logic that the Ohio Supreme Court used in this regard applies equally to an analysis under the Federal Constitution.

Second: The court called for “heightened scrutiny when reviewing statutes that regulate the use of eminent-domain powers.”

Specifically, the Court rejected the city’s rationale, accepted by the trial court, that the use of eminent domain powers in this case was justified because the property in question was in danger of becoming “blighted.”

“We find that Norwood’s use of ‘deteriorating area’ as a standard for appropriation is void for vagueness,” wrote Justice O’Connor. “We further hold that the use of the term ‘deteriorating area’ as a standard for a taking is unconstitutional because the term inherently incorporates speculation as to the future condition of the property to be appropriated rather than the condition of the property at the time of the taking.” In plain English, that means Norwood grossly abused its authority. The mere possibility–or even probability–that an area may one day be blighted can hardly pass muster as legitimate grounds for property seizures. Indeed, by the yardsticks employed in Norwood–cracked sidewalks, light pollution, proximity to the highway, weeds, dead-end streets, and “diversity of ownership”–large bits of middle-class, suburban America are “deteriorating.”

The Court also struck down a portion of Ohio’s eminent doman law that made any appeal to the Courts pointless:

Third: The court rejected as unconstitutional the portion of Ohio’s eminent-domain statute that–get this–barred judges from enjoining the seizure and redevelopment of property prior to appellant review. The law had essentially allowed developers to tear down homes after they provided just compensation but before the completion of the appeals process. According to the Ohio Supremes, this “violates the separation-of-powers doctrine.”

In other words, Norwood v. Horney is, in some sense at least, the anti-Kelo. Obviously, the Ohio Supreme Court cannot overrule a decision of the United States Supreme Court. However, the ruling that the Justices from the Buckeye State have made will, hopefully, serve as the beginning of an argument that will see sanity returned to eminent domain law at the Federal level.

H/T: Wizbang

Previous Posts:

A Post-Kelo Test In Ohio
A Victory For Property Rights In Ohio

In January, I wrote about a case being argued before the Ohio Supreme Court that was, without question the first major test of local government eminent doman powers since the Supreme Court’s Kelo decision. The case involved the city of Norwood, near Cincinnati, and its attempt to use eminent domain to take the propety of homeowners who were holding out on accepting buyouts from a private developer. Today, the Ohio Supreme Court issued a unanimous ruling that Norwood’s attempted exercise of eminent domain was improper.

COLUMBUS, Ohio — The Ohio Supreme Court ruled unanimously on Wednesday that a Cincinnati suburb cannot take private property by eminent domain for a $125 million project of offices, shops and restaurants.

(…)

The court found that economic development isn’t a sufficient reason under the state constitution to justify taking homes.

In the ruling, Justice Maureen O’Connor said cities may consider economic benefits but that courts deciding such cases in the future must “apply heightened scrutiny” to assure private citizens’ property rights.

“For the individual property owner, the appropriation is not simply the seizure of a house,” she wrote. “It is the taking of a home _ the place where ancestors toiled, where families were raised, where memories were made,”

Targeting property because it is in a deteriorating area also is unconstitutional because the term is too vague and requires speculation, the court found.

O’Connor wrote that the court attempted in its decision to balance “two competing interests of great import in American democracy: the individual’s rights in the possession and security of property, and the sovereign’s power to take private property for the benefit of the community.”

Kudos to the Ohio Supreme Court for doing what the U.S. Supreme Court was apparently incapable of, standing up for property rights. And doing it unanimously no less.

And there’s a detailed analysis of the Supreme Court’s decision by Ilya Somin at The Volokh Conspiracy, who calls the decision “A Major Victory For Property Rights”

Further information can be found at the Ohio Supreme Court’s website. And a the full text of the opinion (in PDF format) can be found here.

More at Wizbang, The Volokh Conspiracy, and How Appealing