Staying the course of eminent domain seizures in Long Branch: New Jersey Eminent Domain Blog, 12/21/06

By Bill Ward
When property owners contest a condemning authority’s right to take, a stay is automatic under the Eminent Domain Act of 1971. The stay dissipates once the trial court issues findings of fact and conclusions of law upholding the right to take the properties.

In the eminent domain proceedings against property owners of Long Branch’s MTOTSA neighborhood, Monmouth County Assignment Judge Lawrence Lawson indicated there would be no stay in his June 22 opinion:

N.J.S.A. 20:3-11 states in part, “When the authority to condemn is denied, all further steps in the action shall be stayed until that issue has been finally determined.”

No stay is warranted here as this court has made a definitive ruling that the taking is authorized by law.

Upon publication of Judge Lawson’s opinion, Long Branch and its developers, Matzel & Mumford (K. Hovnanian) and Applied Management of Hoboken, could have proceeded with acquisition, demolition of the improvements and relocation of the property owners.

The obvious reason they did not is that the residential real estate market changed. The market could change again. This factor, and not the supposed “good faith” of the city of Long Branch, is what is driving the status of the project, despite the fact that the developer has obtained title to more than a half-dozen properties in the MTOTSA neighborhood since Judge Lawson’s decision.

If a stay is not issued by the trial court, a property owner must seek relief from the Appellate Division of the Superior Court. The standard for issuing a stay in the Appellate Division is difficult to meet and rarely given.

The standard for injunctive relief was established by the New Jersey Supreme Court in Crowe v. DiGioia in 1982.

In order to meet the standards, the applicant must demonstrate:

1. That in the absence of such a stay, the claimant will suffer irreparable injury;
   
2. The legal right underlying the plaintiff’s claim is settled;
   
3. A reasonable probability of ultimate success on the merits; and
   
4. The probability of harm to other persons will not be greater than the harm the claimant will suffer in the absence of such relief.

Appellate Judge Jack Lintner issued the stay in the Anzalone case on Nov. 6, thus protecting octogenarians Louis and Lillian Anzalone from any attempt by the city of Long Branch to seize their residence during the appellate process. The stay effectively protects the other MTOTSA appellants, even though their attorney did not apply for a stay.

Long Branch and its legal representatives have sought to minimize the impact of the stay order by stating in the press and in their court briefs that they said they would not file declarations of taking during the appeal.

Such verbiage is scant assurance and could be rescinded at the whim of the developer should the real estate market change. Remember, these are the same people who said the MTOTSA neighborhood would be residential infill and changed course after they reaped the profits from Beachfront North Phase I.

City attorney Paul Fernicola submitted a 20-page brief in opposition to the stay. If this was a conceded point, why would the city waste taxpayers’ money opposing the stay application? The answer is: city and developers want it both ways: They want to appear conciliatory to the property owners at the same time maintaining ultimate control over the acquisition process so they can move forward when the market dictates. The stay order prevents this.

The stay is more than just further assurance against seizures; it is an order of the court that maintains the status quo while the matter is litigated. Most importantly, it is the standard of probable success on the merits of the case. In a recent case involving Readington Township’s attempt to acquire property and developmental rights to Solberg Airport, Somerset County Assignment Judge Yolanda Ciccone granted the Solbergs the right to discovery and an evidentiary hearing.

This is what the property owners in Long Branch urged Judge Lawson to do, but were denied.

Now that the Anzalone case is before the Appellate Division with the stay in effect, and with both the Institute for Justice and the New Jersey Public Advocate participating in the appeal, the MTOTSA appellants should be optimistic about obtaining a reversal of the trial court’s decision.

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New Jersey Eminent Domain Blog: http://www.njeminentdomain.com