Is Open Space "Blighted"?

The Gallenthin Realty case Ilya mentions below nicely illustrates the risk that eminent domain can pose to environmental conservation if governments are allowed to take property for economic development purposes -- a problem Ilya and I discuss in our paper, The Green Costs of Kelo: Economic Development Takings and Environmental Protection, 84 Wash U. L. Rev. 623 (2006). The land at issue in this case largely consisted of undeveloped open space, including protected wetlands. The government sought to take the land for a development project because it was "not fully productive." Yet this is something that can be said of virtually all conservation properties; land that is devoted to conservation is not "fully productive," even though it may be providing many valuable functions and services. Indeed, the very point of conservation easements and the like is to protect environmental values by preventing land from being used to maximize economic production. Had the New Jersey Supreme Court held that this was a suitable justification for the use of eminent domain, this would have put made it easier for government agencies in New Jersey to take conservation lands through the power of eminent domain by labeling such lands as "blighted."

While the opinion prohibits eminent domain solely because a property is "not fully productive", it appears to permit it if an area is not fully productive because of a "diversity of ownership." This language would seem to include putting together small plots into a larger parcel of land that can be used for economic development, the exact situation in Kelo. It doesn't seem to impose particularly stringent limits on eminent domain for economic development purposes.
6.13.2007 8:29pm
anomdebus (mail):
I had initially mistakenly read that title as:

Interesting run-around the Outer Space treaty.
6.13.2007 10:45pm
It make me wonder if properties designated as historical are the next in line to be deemed as "blighted."
6.13.2007 11:24pm
TomH (mail):
Reminds me of the Lucas decision (circa 1992 0r 93) where Scalia supported a finding that a taking of land had occurred when the land was subjected to environmental restrictions because IIRC, and to paraphrase, land that with no development, or development potential, had no value.

(The fairness of the imposition of the regulation after the property was purchased aside for the moment)

Personally, I beg to differ. Seems to be a values argument with no objectively correct answer.
6.14.2007 10:02am
CWuestefeld (mail) (www):
On the flip side, a recent eminent domain case here in NJ involved a farm being condemned -- in order that development be prevented and open space be preserved.

Sorry I can't find a good link, the best I can find is here.

You may have heard other news stories related to this fiasco. Back before Gov. McGreevey's final ignominy, there was the "machiavellian" incident, in which he was said to have used that word twice in a speech, as a signal to the Halpers that he was willing to help in the condemnation problem, for a price. That story here and here.
6.14.2007 10:53am