1/27/2007

Eminent Domain in Long Branch - The Anzalones petition the N.J. Supreme Court: New Jersey Eminent Domain Blog, 1/20/07

By William Ward

Louis and Lillian Anzalone filed a petition this week asking the New Jersey Supreme Court to hear their appeal of Judge Lawson’s decision. The Anzalone case is fully briefed and pending oral argument in the Appellate Division, including an amicus brief filed by New Jersey’s Public Advocate Ronald Chen, who supports the conflicts of interest argument:
Appellants alleged that three members of the Long Branch City Council had potentially disqualifying conflicts of interest between their official positions and their status as shareholders, officer, and employees of the former Monmouth Community Bank, N.A. (“the Bank”), which helped to finance the redevelopment. In addition, the homeowners alleged potential conflicts involving two of the law firms that have represented the City and other actors in the redevelopment process. The trial court did not have before it a complete factual record relative to these potential conflicts, such as a full chronology of all material events, the terms of the Bank’s loans to the redevelopers, and the scope and timing of the law firms’ relationships with the City, the redevelopers, and the Bank. Without these critical facts, the trial court erred when it denied Appellants discovery and ruled that the potential conflicts were “tenuous” or not “realistic.”

The New Jersey Court Rules R2:12-2a permit a party to petition the Supreme Court directly within 10 days of the filing of the last brief:
a) Filing and Service of Motion. A motion for certification of an appeal pending unheard in the Appellate Division shall be served and filed with the Supreme Court and the Appellate Division within 10 days after the filing of all briefs with the Appellate Division. Within 5 days after service of the motion an opposing party may serve and file a statement in opposition. The motion and statement shall not exceed 5 pages. Nine copies thereof shall be filed with the Supreme Court.

The Supreme Court should take the Long Branch cases because there is an important public interest question concerning numerous documented eminent domain abuses that have occurred under the implementation of the Local Redevelopment Housing Law, N.J.S.A 40A:12A-1 et seq. The Long Branch cases present the Court with a full record of all potential problems and abuse which occurs under this statute. In October, the New Jersey Supreme Court granted certification in the case of Gallenthin Realty Development, Inc. v. Borough of Paulsboro et al (Supreme Court of New Jersey Docket No. 59,982). The question before the Court in Gallenthin involves a review of the Local Redevelopment Housing Law as it applies to that property, a 63-acre vacant parcel of land. A review of LRHL should by all rights include the City of Long Branch v. Anzalone, as it presents a more complete record of issues: i.e., attorney-developer conflicts, arbitrary interpretation of blight under the LRHL, and general failure to comply with the statutory requirements of the LRHL. If certification is granted, we expect the remaining property owners in the companion case, City of Long Branch v. Brower et al to file a similar petition with the Supreme Court. After all, these cases involve an entire neighborhood of single-family residential homes threatened with acquisition by eminent domain.

The two appeals pending from Judge Lawson’s June 22, 2006, ruling are City of Long Branch v. Anzalone and City of Long Branch v. Brower et al. The Anzalone case is pending oral argument in the Appellate Division. The Public Advocate’s brief was filed in accordance with the briefing schedule set by the court in the Anzalone case. The companion case, Brower et al, has not been briefed either by the appellants or the respondents, or the other amicus in the case, the League of Municipalities. The Public Advocate’s brief is filed in both cases and, ironically, it precedes any other briefs in the Brower case. The Brower case was delayed, in part, by frivolous motions filed by Long Branch seeking to exclude the Institute for Justice from appearing pro hac vice in their case.

Long Branch’s motion to exclude the Institute for Justice in the Brower case is part of a continuing pattern by the city, its public officials, and legal representatives to discourage opposition to the redevelopment project. Another example is the confrontation which took place in November 2006 at the League of Municipalities convention in Atlantic City between Mayor Adam Schneider and Public Advocate Ronald Chen. Schneider publicly challenged Chen as he was about to speak at one of the seminars and criticized both Chen’s understanding of Judge Lawson’s opinion and the participation of the Public Advocate in these cases. This was a blatant attempt by the mayor to intimidate the public Advocate and it did not succeed. The Institute for Justice and the New Jersey Public Advocate represent two groups which are concerned with eminent domain abuse. City officials and their counsel have demonstrated a mean-spirited and public attack on the attorneys who defend property owners against eminent domain abuse. This type of intimidation tactic should not be countenanced by the Courts. Judge Sylvia Pressler wrote in Lobiondo v. Schwarz (A-6096-5T1):
After all, public participation in issues of public concern is at the very essence of democracy. As the United States Supreme Court expressed in New York Times v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 721, 11 L. Ed. 2d 686, 701 (1964), we have a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open."

Other states have adopted legislation so called “anti- slap” statutes which are intended to make it difficult for plaintiffs to bring frivolous claims against defendants who speak out on public issues. If presented with the question, the courts should comment on the tactics adopted by the City of Long Branch in these matters. The Star Ledger hit the nail on the head when it titled a column by Paul Mulshine, "In Long Branch, government is the real blight."

The Supreme Court should take the Long Branch cases for the same reason stated in the Gallenthin brief:
This is the first case this Court has reviewed under the 1992 Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq.("LRHL"). There are significant unanswered questions raised by the increasing use – and perceived abuse – of the LRHL to take land that does not meet any reasonable test of what constitutes a "blighted area" under N.J. Const. art. VIII, §3, ¶1, and transfer it to private developers. If the lower court opinions stand, then there will be virtually no check or limits on what kinds of property may be designated an “area in need of redevelopment,” and no meaningful judicial review of whether such designations are supported by “substantial evidence.”



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