Legal champion for the rights of homeowners: Long Branch NJ Atlanticville, 9/14/06

Wegener: Shift to taking homes for private gain has come in last 5 years

By Christine varno

Attorney Peter H. Wegener has made a career of protecting the rights of property owners whose homes were in the way of public projects.

In the last five years, he said, taxpayers increasingly are facing off against their own towns in the fight to save their homes from being taken for private redevelopment projects funded by developers.

According to Wegener, the change has happened almost overnight.

"Most cases in the old days were with the DOT [state Department of Transportation] and if not them, then it was the county, and they were about road work, or parks or the bridges. But those are all classic and appropriate uses of eminent domain," he said in an interview last week.

When Wegener began building his decades-long experience as a property rights litigator, he said he was mainly representing property owners fighting the taking of their property by public entities, but in the late 1990s, unicipalities "discovered" economic redevelopment.

"It is just not justifiable, at least not in the United States where I grew up. There is a power ofgovernment being abused, and this is an issue that needs scrutiny." - Peter H. Wegener, attorney

"Municipalities just did not do much redevelopment in my earlier years," he said. "It just was not done."

Today he said almost every municipality has some area of town that might be considered an eyesore, such as a junkyard, and local government officials are resorting to eminent domain as the cure.

"Towns always have 'blighted' areas," Wegener said. "Now eminent domain is a favored way and courts have just rubber-stamped what municipalities are doing."

Wegener said cases of local governments taking private property for private redevelopment have mushroomed.

"I was asked to speak at a conference in Princeton last year," he said, "and I was expecting a room of about 23 or 30 people. But when I got there, there was a huge ballroom filled with over 400 attorneys and everything was focused on eminent domain."

When Wegener was asked to represent a group of Long Branch homeowners fighting to save their homes from eminent domain, he said the decision to take the case was obvious.

With 30-plus years of experience protecting property owners' rights in court, he said he instantly recognized that the Long Branch city government was abusing its power of eminent domain.

Wegener, 67, who resides in Brielle and practices law at Bathgate Wegener and Wolf in Lakewood, said that his career representing property owners whose rights are being infringed upon came about as a matter of circumstance.

"This just happened," said Wegener. "Early on I found that I had three or four cabinets filled with condemnation cases. All of a sudden I was an expert on eminent domain."

A little more than two years ago, the group of homeowners on the Long Branch oceanfront retained Wegener as counsel. The homeowners were facing the loss of their homes to a redevelopment plan in which the city would turn the properties over to a developer who would replace them with homes for wealthier people. The residents considered this use an abuse of the city's power of eminent domain.

Today, Wegener is representing some 22 property owners in the city's Beachfront North, phase II redevelopment zone, known as MTOTSA, an acronym for the three streets in the neighborhood - Marine and Ocean terraces and Seaview Avenue.

Wegener, along with the public interest law firm Institute for Justice (IJ) as co-counsel, is appealing a lower court decision that permits the city's use of eminent domain to condemn, seize and bulldoze the MTOTSA properties and construct luxury condominiums in their place.

Throughout his career, Wegener has represented hundreds of property owners fighting a similar battle, including residents in the Long Branch Beachfront North, phase I and Pier Village redevelopment zones.

Historically, property owners lose their properties in most eminent domain cases, Wegener said, and getting just compensation for their properties is one of a series of problems these property owners face.

"In a redevelopment case, you cannot get comparable sales in the area," he said. "For [MTOTSA], if you go into Elberon, they say no, no, it is different. So they go inland, by the railroad tracks, which in no way reflects the value of these oceanfront homes."

Wegener said he believes that realistically, MTOTSA can win this case, and he has the experience to back up his confidence in an outcome favorable to the homeowners.

Wegener received his law degree from Rutgers University in 1966 and after graduation served as a law clerk for the N.J. Supreme Court for a one-year term.

While serving as a law clerk, Wegener worked on several eminent domain cases, including Texas Eastern Transmission v. Wildlife Preservation, which he said involved Texas Eastern proposing to lay a transmission line through property set aside for a wildlife preserve.

"It was a landmark case," he said, "because it dealt with the question of under what circumstances eminent domain could be used.

"In the end result, Texas Eastern prevailed and the court did not determine that it was an arbitrary, capricious or unreasonable use," he said. "But guidelines were being set."

Wegener went on to serve at McCarter & English, Newark, where he practiced for three years.

In 1970, Wegener and Lawrence Bathgate opened Bathgate and Wegener.

Wegener's first eminent domain case was in 1972 and involved property owners fighting the DOT for taking private property to widen Route 70.

Soon after, more property owners came to Wegener when the DOT was using eminent domain for the widening of Routes 9 and 195.

"This field is not like medical school," Wegener said, "where you take a residency in your specific area. In law, it does not work like that. Any lawyer can do whatever they want if they feel competent.

"I was exposed to several eminent domain cases when I worked as a law clerk with the state Supreme Court. I found that they were interesting. I started doing condemnation cases in the 1970s, and I realized my skills as a litigator were particularly helpful in eminent domain."

The power of local government to exercise eminent domain has been primarily expressed as a win-win situation for municipalities and developers, Wegener explained.

"Just look at the money we are talking about in redevelopment," Wegener said. "Especially from 1996 to 2006, there has been a rise in the market and a demand for real estate. Developers just want to get in and municipalities see eminent domain as a way to solve the town's problems.

"Well, the town is getting rid of something it was not happy with and it will bring in some ratables. And the developers get a pile of money from selling units.

"But who loses?" Wegener asked, before answering, "The property owners. The ones who invested in property developed years ago, but the town sees these properties as less desirable than condominiums."

Could there be a better way to revitalize a community?

Wegener says, absolutely.

"What about code enforcement, for one," he said.

In 1996, the city of Long Branch designated the MTOTSA neighborhood as an area in need of redevelopment.

"By naming an area in need of redevelopment, people cannot go in and buy these homes and improve them," Wegener said. "Once you designate an area, it discourages people from improving their property. It will force them to go down hill.

"So these properties start to deteriorate, as the city knows and anticipates it will. Then the city goes in and gets property for cheaper."

Wegener said without the designation, Long Branch neighborhoods may have had the chance to redevelop themselves, like other surrounding beachfront communities.

"Look at Belmar and Bradley Beach," he said. "It redeveloped itself without eminent domain. People bought homes in these towns, enlarged them, improved them and homes that once looked rundown turned into beautiful beachfront homes."

Wegener tried some landmark cases early in his career that he said have helped property owners across the state over the years, including the State of New Jersey v. Hope Road in Monmouth County.

"These cases helped property owners introduce evidence to get the value of their property based on its highest potential use, not necessarily its current use," he said. "In the old days the courts said that evidence was speculative and it was excluded. But we were successful in changing those guidelines."

For MTOTSA, he said the city has an easy solution.

"The city's redevelopment plan [for MTOTSA] called for residential infill," Wegener said. "The city could go in and decide they can do the project with infill and preserve a number of the homes and then maybe build a new townhouse project comparable to the neighborhood."

IJ's presence in the Long Branch case will help MTOTSA prevail, Wegener said. IJ, based in Arlington, Va., argued the Kelo v. New London ( Conn.) case in the U.S. Supreme Court. The high court ruled 5-4 in favor of New London, permitting eminent domain to further a private redevelopment project.

According to Wegener, the Supreme Court gave governments the go-ahead to take private property for private uses in the ruling.

"I think with the Kelo loss, a lot of [attorneys] representing property owners were a little disappointed," Wegener said. "We had hoped the U.S. Supreme Court would have stepped up.

"To take someone's home and put up another home for someone else is not a public use. That is a private use and the Supreme Court did not say that," he said.

"This just shocked people across the country," he said, adding, "IJ has helped to call attention to the abuse going on."

Property owners losing their property for private redevelopment is an abuse that Wegener said he will continue to fight.

"It is just not justifiable, at least not in the United States where I grew up," he said. "There is a power of government being abused, and this is an issue that needs scrutiny."

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