High court won't hear Long Branch eminent domain case: Asbury Park NJ Press, 2/21/07

Couple's lawyer sought to bypass appellate division

By Carol Gorga Williams

The [New Jersey] state Supreme Court has declined to hear the case of home owners Louis T. and Lillian C. Anzalone, who are pursuing a separate claim from the other property owners in the Marine Terrace, Ocean Terrace, Seaview Avenue [MTOTSA] area.

The city has targeted the Anzalones' home, as well as other MTOTSA properties, for eminent domain under its waterfront redevelopment plan, which calls for replacing them with luxury condominiums.

William J. Ward, the Florham Park attorney who represents the Anzalones, in January had filed a request that the Anzalones' eminent domain challenge bypass the state's appellate division and be heard directly by the state Supreme Court.

New Jersey court rules allow for a person to request Supreme Court intervention within 10 days of the filing of the case's last appellate brief.

The other portion of the case is being handled by Peter H. Wegener, a Lakewood lawyer, and the nonprofit Institute for Justice, based in Arlington, Va., who represent the majority of MTOTSA property owners challenging the city's use of eminent domain.

The MTOTSA case is slightly behind the Anzalone case schedule because MTOTSA lawyers had to oppose a motion filed by the city to prohibit the Institute for Justice, which has an arm that specializes in opposing eminent domain, from acting as co-counsel in the case, Ward said. The institute's Scott G. Bullock acknowledged last week that fighting that motion had "distracted" institute employees.

Ward said Tuesday that he was notified by the Supreme Court last week of its decision not to take the case. As is the court's practice, there was no explanation for the decision, leaving lawyers from both sides free to speculate about the reason.

Ward said the court knew that the brief from the New Jersey State League of Municipalities, which plans to file paperwork to support the city, still was not ready, nor were the briefs in the MTOTSA case.

"Although our case is not consolidated with that case, I guess people are treating it as if they were consolidated," Ward said.

Ward said he plans on speaking with Wegener and Bullock and ask them to join him in a second request to bypass the appellate process when their case is ready for appeal.

"One of the things that gave me some hope," Ward explained, was that when state Supreme Court Chief Justice James R. Zazzali spoke recently at Brookdale Community College, he acknowledged controversial eminent domain cases, such as those involving Long Branch, may ultimately come before the court.

"I know they are aware of the case," Ward said.

James G. Aaron, who represents the city, said the decision by the Supreme Court not to hear the Anzalone matter now, indicates the panel wants a complete appellate record before deciding the case.

"In the event the Supreme Court saw a very urgent need to hear this case, they would have considered it on their own, as they have a right to do, as Mr. Ward recognized when they filed that motion," Aaron said. "But I think a clear reading of this is that the Supreme Court wanted a full record made before the appellate court and then it would be able to decide whether or not it even wanted to hear the case or had to hear the case."

If the appellate decision is unanimous, the losing party has no right to automatic appeal to the Supreme Court, Aaron explained.

The final reply briefs in the MTOTSA case are due at the end of April. Oral arguments, which are scheduled at the court's discretion, would be sometime after that.

Asbury Park NJ Press: www.app.com