5/10/2007

MTOTSA brief - City gave control to developers Long Branch NJ Atlanticville, 4/26/07

City's brief says eminent domain use is 'proper'

By Christine Varno

The city of Long Branch unlawfully ceded its power of eminent domain to a private developer, according to a brief filed by attorneys representing a group of Long Branch homeowners.

That is one of the challenges being made in an appeal of a court ruling that gave the city the right to condemn the homes in an oceanfront neighborhood for a private redevelopment project.

According to Institute for Justice (IJ) Attorney Scott Bullock, the public interest law firm filed briefs in an appeal brought on behalf of residents living in the Marine Terrace, Ocean Terrace and Seaview Avenue neighborhood known as MTOTSA.

The next step, Bullock said, is for the New Jersey Appellate Division to schedule a court date for oral arguments in the appeal, which, he added, could take a couple of months.

"We are very confident of our legal arguments," said Bullock, of the Arlington, Va.-based law firm, on Monday.

"Long Branch unconstitutionally delegated its power of eminent domain to the private redeveloper of the MTOTSA zone," he said, adding, "It is a government authority that should not and cannot be given away."

Bullock called the MTOTSA case a "leading example of eminent domain abuse."

"A lot of people in New Jersey and throughout the nation are watching this case," he said.

In a reply brief filed last Friday in response to one filed by the city, IJ argues that the taking of the homes in the MTOTSA neighborhood is not necessary to accomplish the city's overall redevelopment plan.

A group of some 18 homeowners in MTOTSA are being represented by Peter H. Wegener, of Bathgate Wegener and Wolf in Lakewood, and IJ, acting as co-counsel in the case.

IJ entered the case on Dec. 4 when the New Jersey Superior Court Appellate Division granted it "pro-hac-vice" status, which is a status required by the court for out-of-state attorneys seeking to be permitted to practice law in a state where they are not licensed.

The attorneys are appealing the Superior Court ruling of Judge Lawrence M. Lawson that permits the city's use of eminent domain to condemn the properties in the beachfront MTOTSA neighborhood.

Wegener and IJ filed the opening brief in the appeal on Feb. 8, and the city followed with its opening brief on April 9.

The last brief to be submitted in the case was the reply brief, which, according to Bullock, "strictly responds to the arguments made in the city's [opening] brief.

"But," he added, "the city did not really respond to most of the arguments set forth in our [opening brief]."

In addition to the claim that the city abused its power of eminent domain, Wegener and IJ argue three other main points in their reply, including that MTOTSA homeowners are entitled to a plenary hearing based on public use and statutory claims.

"We argue public use based on whether or not the takings in this case are for a public benefit or a private benefit," Bullock said.

"The developer is getting enormous private benefits with very little public benefit going to the city," he said, adding, "It raises a very serious claim under the U.S. and the New Jersey constitutions."

As far as the statutory claim, Bullock argues that the takings violate New Jersey redevelopment law because they are not based on substantial evidence.

"Judge [Lawson] got the law clearly wrong," Bullock said. "The judge took what the city said at face value. At the very least, the [MTOTSA] homeowners are entitled to a plenary hearing."

In the reply, the attorneys also argue that the city violated its own redevelopment plan.

"The [MTOTSA] property was designated as residential infill," Bullock said, adding that the determination to amend the plan to include the acquisition of the MTOTSA properties was not carried out in accordance with local redevelopment laws.

The MTOTSA homeowners, at the very least, according to Bullock, are entitled to their day in court.

"All of our arguments have a solid basis," Bullock said. "[Lawson] did not do what is required of him under New Jersey law. He did not take the claims seriously.

"We raised some very serious and grounded concerns and the condemnation of MTOTSA was rubber-stamped by Judge Lawson," Bullock added.

In the city's 120-page opening brief, it argues that the MTOTSA case is "not a case of eminent domain abuse.

"Rather, this case involved an unsubstantiated challenge to the proper exercise of eminent domain through a process procedurally correct, substantively sound and which is a necessary component for proper planning for the revitalization of an area in dire need of redevelopment," it reads.

The city's brief, which was prepared by Lawrence H. Shapiro, of Ansell Zaro Grimm and Aaron, City Attorney James Aaron's law firm, also states that the redevelopment process in the MTOTSA area has continued with the homeowners' knowledge and without objection.

"This appeal constitutes nothing other than a baseless challenge to an award-winning, properly studied and considered redevelopment plan, which is returning the city of Long Branch to economic stability, improving the general welfare of the city and providing heightened reputation as a destination to be visited," Shapiro states in the brief.

Bullock countered that the city's use of eminent domain to seize the MTOTSA properties is an abuse.

In the appeal, the MTOTSA attorneys are asking the appellate division to dismiss the condemnation complaints served on the residents in the MTOTSA neighborhood, Bullock explained.

At the very least, Bullock said, the attorneys are asking that the case be sent back down to the trial court to give homeowners the opportunity to provide further evidence in the hearing.

Lawson rendered his decision on June 22 after hearing a motion to dismiss the condemnation complaints served by the city of Long Branch on residents in the three-street MTOTSA neighborhood.

Plans for MTOTSA call for designated developer MM Beachfront North II - consisting of Matzel & Mumford, a division of K. Hovnanian and the Applied Cos., Hoboken - to raze the neighborhood and construct three buildings with 185 upscale condominium units.


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