Kelo/Property Rights Update: Pre-Kelo New Jersey Case Settlement Upheld

Here’s the only item I could find in Google News about a troubling case (text is 6 paragraphs from the end) I first learned of in Opinion Journal’s Political Diary:

Court upholds ruling on Mt. Laurel tract

TRENTON — The owners of a Mount Laurel property targeted for redevelopment should be compensated for the value of the ground on the date the condemnation complaint was filed, not the date of a court judgment that designated the ground as a redevelopment site, the state Supreme Court ruled Monday.

A court judgment in December 1997 classified a home and adjoining farmland owned by Richard and Lucia Stanley as the future site of low- to moderate-income housing.

The township, however, did not file its condemnation complaint until 2002.

The Supreme Court upheld an appellate court ruling, noting the Stanleys should be compensated for the increased value of their home over that five-year span because the increase was due solely to inflation.

The Political Diary (not available on the web) fills in the holes:

With the infamous Kelo v. New London ruling, the U.S. Supreme Court held that a city could grab private property under just about any pretext that involves “community development.” New Jersey has a special engine for property snatching known as the “Mount Laurel decisions.”

In one of the country’s most audacious expressions of judicial activism, the highly politicized New Jersey Supreme Court ruled in 1975 that each New Jersey community must provide its “fair share” of low- and moderate-income housing. Not much happened, so the court issued a stronger ruling in 1983, going so far as to suggest that a “fair share” would be around 20% of the local housing stock. In 1985, the New Jersey legislature made an honest woman of the court by enacting into law what the court had already legislated. A “Fair Housing Act” attempted to codify what the confused municipalities were required to do.

Perhaps signaling a reaction against the appalling Kelo decision, the southern New Jersey town of Mount Laurel is back in the news again, this time with a new ruling that offers a sliver of comfort to defenders of property rights. Last month, the New Jersey Supreme Court ruled that at least the town couldn’t gyp a property owner out of the true value of his holding, which had been seized to meet the town’s low-income housing quota. In Mount Laurel Township v. Stanley, the court held that the township must pay the value of the Stanley family’s 10-acre site at the time it was actually condemned, not the value five years earlier when it was designated for a “fair-share” development site. That way, at least, officials can’t avail themselves of a cheap option on someone’s property by announcing an intention to condemn it at some point in the future.

The Stanley family will still lose their property, but they will get the $833,000 it was worth in May 2002, rather than its $650,000 value in December 1997, before a five-year rise in real estate values. It’s a small victory but any victory against the assault on property rights is worth noting.

I’m less than impressed, in that the Stanleys should never have been forced to give up their property in the first place, and even if they will be paid interest for the 3-1/2 years that have since passed, that’s probably nowhere near what the property’s increase in value would have been during that time.

There have been comments like this one at other Kelo-related BizzyBlog posts that takings like this are no longer possible, because no one will have the nerve to bring in the bulldozers any more. New Jersey’s obviously unconstitutional but apparently unchallenged low-income housing set-aside law may be the laboratory where that belief gets put to the test. Assuming the law itself isn’t jettisoned (I’m not aware of any constitution challenge to it–e-mail me if you know otherwise), will people rally to the defense of future victims like the Stanleys, when they are seen as “rich” and standing in the way of “housing for the poor”? I’m not optimistic.
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UPDATE: Amy Ridenour has very good news on an attempted retroactive zoning case in Maryland that was much more outrageous in its (thwarted) ambitions.

UPDATE: Ronald D. Utt at The Heritage Foundation reports that property rights legislation is getting bogged down in all but two states (AL and TX) and at the federal level, and could use a presidential push:

Despite the widespread concern that swept the country following the Kelo decision, state and federal elected officials have done little to strengthen the protection of property rights. With the exceptions of the House bill and new laws in Alabama and Texas, property rights initiatives in other states and in the U.S. Senate have been bogged down in legislative committees, in large part due to opposition from mayors, developers, and economic development officials who stand to see their power diminished. To date, President Bush has been silent on the issue, despite its popular appeal and property rights’ status as a basic principle of individual freedom. With efforts to strengthen the protection of property faltering, now is the time for President Bush to take a strong stand and encourage the Senate and the states to enact laws that better protect an individual’s property.