On January 14, New Jersey State Superior Court Judge James Hurley ruled that North Brunswick Township could use eminent domain powers to acquire 104 acres of farmland against the wishes of property owner Edwin Otken.

According to the Associated Press, Mr. Otken agreed to sell the land four years ago to U.S. Home Corporation, which intends to build 400 homes on the property. Objecting to such residential development and wishing to preserve the open space, North Brunswick Township sought to use the power of eminent domain to acquire the land to build ball fields and walking trails. If the ruling stands, Mr. Otken will be compensated $6 million, the land’s appraised value, from the township, significantly less than the reported amount that U.S. Home Corp. agreed to pay.

Traditionally, the courts have permitted eminent domain powers to take property to build bypasses or thruways and public facilities, such as fire and rescue stations. However, Judge Hurley’s ruling is unique in that, for one of the first times in history, a town is permitted to acquire land to prevent development.

The power of eminent domain, set forth in the Fifth Amendment to the U.S. Constitution, gives the government the right to take private property for public use. The majority of the courts have interpreted a broad reading of "public use" as being for public advantage. Is preservation of open space, as in Mr. Otken’s case, a sufficient public advantage to justify the government’s use of its eminent domain rights to take his private property? The Center believes that it is not.

Even assuming that a "public advantage" test could be met, the eminent domain right prohibits the exercise of such power without just compensation to the owner of the property. Through the years, the courts have passed down numerous, albeit conflicting, opinions on what constitutes "just compensation." In Mr. Otken’s case, the appraised value of his property does not constitute "just compensation," as the market value is reportedly significantly higher. The fact that Mr. Otken had already entered into an agreement to sell his property for a price higher than its appraised value should render the appraised value, or any price lower than that in his agreement with U.S. Home Corporation, unjust.

Judge Hurley’s ruling, if unchallenged or upheld, could be a devastating blow to the rights of private property owners across the country. Property rights advocates must continue to vehemently fight battles, such as Mr. Otken’s, in the courts, but it is equally important that their concerns be heard at the legislative level.