Eminent domain threatens tavern: New Brunswick NJ Home News Tribune, 7/1/07

By Richard Khavkine

John Neshimka started pouring beers at the corner of Linden and South avenues [in Linden NJ] in 1980, before he was even of legal drinking age.

Six days a week, Neshimka filled mugs and topped off shot glasses to commuters and to the city's sizeable blue-collar contingent at his father's Linwood Inn, which had been in the family since 1971. At closing time, he cleaned up.

Neshimka, now 45, and his wife, Lori, have owned and run the tavern, a second-floor boarding house and two third-floor apartments since 1992. And, they said, they have made a good living along the way. In 2000, hoping to be a part of a revamped Linden neighborhood that already attracts both foot and car traffic to a pair of delis, a hair salon and a Chinese takeout, among other shops on their block and to the train station nearby, the Neshimkas began what would eventually be a $500,000 renovation. The face-lift included a brand-new $200,000 kitchen that replaced a profitable liquor outlet.

In the process, the inn, reputed to serve the best burger in New Jersey, became much more family-friendly, said the couple, who commute from Bricktown to work 100-hour weeks between them. Unbeknownst to them, the Neshimkas said last week, the City of Linden had other plans for the inn.

To move forward, city officials in October 2001 included the Neshimkas' property in a four-block swath designated in need of redevelopment. The move paved the way for the city to acquire the properties through eminent domain proceedings if owners refused to sell.

In 2003, city approved plans for a $12 million residential and commercial development to be built by Verge Properties, which is owned by Linden resident and real-estate businessman Dennis Valvano III.

The Neshimkas found out about their property's status shortly after that, about midway through the refurbishment, when they put the inn up for sale. The $1.6 million asking price attracted several interested parties, all of whom were then told by city authorities that the property was listed as in need of redevelopment. The potential purchasers, of course, all backed out. The Neshimkas have been handcuffed ever since, they said.

And while a recent state Supreme Court ruling would have put redevelopment law on their side, the unanimous opinion, which property owners hailed as a long-overdue tightening of the law, comes about six years too late for the Neshimkas.

"They let us do it. They let us pull all those permits," John Neshimka said of the city officials' de facto endorsement of the renovations, which he said doubled the family's debt. "I wouldn't have done this if I knew I'd have this cloud over my head."

The court's ruling in effect invalidates municipalities's ability to take property simply because it was deemed "not fully productive." It must also meet a strict definition of blight included in a 1947 constitutional amendment that the Legislature eliminated in 1992.

Peter Dickson, the lawyer who successfully argued the Supreme Court case on behalf of a Paulsboro property owner, said the court's mid-June findings would have made it impossible for Linden to seize the Linwood Inn.

"It absolutely is not blighted. If anything it's having a positive impact on the neighborhood," he said.

Dickson said the decision considerably ratcheted up the burden of proof on municipalities to show that a property detracts from neighboring homes or businesses before it could move to acquire it.

"The day of condemning property like this in New Jersey is over," he said.

The inn, newly fitted with everything from a roof and vinyl siding to walls and air conditioners, seats about 40 at tables and fits 30 stools around the bar, where 11 large-screen TVs tune to news and sports. The tavern's former kitchen is now dedicated to a portion of the Linden Historical Society's holdings, which include a display of black-and-white period photographs of Linden and nearby municipalities.

While city officials would have to justly compensate the Neshimkas for their property and relocate the business to a suitable location, John Neshimka said that despite what he said were Mayor Richard Gerbounka's sincere and supportive efforts, he thought both scenarios unlikely.

"These developers usually give you pennies on the dollar," he said. Besides, he added, "There is not really a place in town that can replace this."

The brick structure has occupied the northwest corner of East Linden and South Wood avenues since at least 1882. "I'm the only one doing anything" to improve the area, John Neshimka said. "I just don't think we should have been included in the project. We're a landmark."

Across Linden Avenue, a row of dilapidated buildings reaching to Morris Avenue has been unoccupied for months, in some cases even years. The word "DEMO" has been spray painted on their facades since 2006. Piles of garbage and debris lie just feet from the sidewalk along South Wood.

"They were all doing business. Now it's just a pile of rubble," John Neshimka said while surveying the block where years ago he took drum lessons and got his hair cut. "It doesn't do much for business, that's for sure."

But the redevelopment project, christened "New Wood Avenue Catalyst" and scheduled to begin in 2004, has yet to get off the ground, frustrating both Verge and city officials. While the project's first phase is set to begin this week, when the row of buildings on South Wood's north side will be knocked down, Gerbounka said, both the developer and the city are threatening legal action against each other. In a bid to stave off a deadlock, the two parties have initiated discussions, Gerbounka said.

But the project, which was to comprise housing, 25,000 square feet of retail and parks along the four blocks stretching from the railroad overpass at Pennsylvania Railroad Avenue to Morris Avenue, could yet be scuttled. "It's been dragging on and on and on. And I want to resolve this issue one way or the other by either having Verge Industries fulfill their . . . obligations to the city of Linden or have them move on so we can get a new developer."

While the mayor said he was hopeful of resolving the issue with Verge, a prolonged impasse might be the Neshimkas' best hope. Other than agreeing to sell the inn to the city's redevelopment agent, the Union County Redevelopment Authority, the Neshimkas appear to have few viable options. It appears that only Verge could amend the plan to the Neshimkas' satisfaction.

Gerbounka, though, said since it's unclear how the project is going to proceed, it "would be purely speculation" for him to consider that the Linwood Inn could remain and become part the neighborhood's transformation, as Lori and John Neshimka hope. "As far as it is now that building would be razed just like every other building in that redevelopment project," Gerbounka said Friday. "If a new developer comes along . . . we would have to reconsider the whole project."

Valvano, the developer, could not be reached for comment.

But Dickson said that the Supreme Court ruling is so unequivocal that it could empower even those property owners who already were facing eminent domain proceedings before the decision.

"Using the political process is important," he said. "You have I think a legitimate claim to go to your town government and say, "Please get me out of this. I don't belong here. This statute was never intended to pick up properties like mine. And that's what the court was making clear.' "

New Brunswick NJ Home News Tribune: http://www.thnt.com