Eminent Domain - Asbury Park Press - Ruling heartens foes

Published in the Asbury Park Press, Thursday, June 14, 2007

Ruling heartens redevelopment foes
Eminent-domain decision analyzed in Long Branch

BY CAROL GORGA WILLIAMS
COASTAL MONMOUTH BUREAU


LONG BRANCH — It was a very good day for those fighting the use of eminent domain in the city, if you ask advocates who oppose the local government's plan to remake neighborhoods along the oceanfront.

Reacting to a state Supreme Court decision that invalidated an "area in need of redevelopment" for waterfront property in Paulsboro, Gloucester County, Lori Ann Vendetti, one of the founders of the MTOTSA group and an active meber of the StopEDA Coalition said, "It is a victory, and we don't get a lot of victories. . . . It felt wonderful."

"I think we've got a whole new ball game," added Harold Bobrow, who with his wife, Michelle, owns a seasonal home in the proposed Beachfront South redevelopment zone.

MTOTSA — which stands for Marine Terrace, Ocean Terrace, Seaview Avenue Alliance — is a group of about 20 property owners who are fighting the city's attempt to take their homes for the second phase of Beachfront North. Their case is in the Appellate Division of Superior Court.

"It took a long time but it was well worth it," Vendetti said. "People are listening."

However, City Attorney James G. Aaron said the decision is actually a good one for the city because it upheld the legality of the state Local Redevelopment and Housing Law.

State Public Advocate Ronald K. Chen, who filed a friend of the court brief for MTOTSA, did the same for George Gallenthin and his wife, Cindy, who owned a waterfront tract that Paulsboro wanted to acquire for a redevelopment project.

The town determined the vacant land was "underutilized," or not fully productive, but the Supreme Court, in a unanimous decision, ruled that if that were the sole criterion, virtually any property in New Jersey could be taken.

"This decision binds the appellate division, which right now is considering the Long Branch case," said Chen, who noted that part of the city's rationale for redeveloping the MTOTSA enclave was it too was not fully productive.

The ability to go ahead on that basis "was significantly limited in today's decision so the court will take that into account," Chen said.

City attorney's view

Aaron, though, noted that the justices maintained that when redevelopment is contemplated, it must be done so more thoroughly than was was done in Paulsboro.

"When you apply that rationale to the Long Branch case, the Long Branch analysis the Planning Board did was so far superior to what Paulsboro did that it puts the city of Long Branch in the position of arguing in its appeal that the Supreme Court's decision in Paulsboro can be used to actually support the Long Branch factual scenario," the attorney said.

Long Branch used several categories to declare the MTOTSA neighborhood "an area in need of redevelopment," he said.

"One of the other things the court did in fact say: If you are just saying that I have a Motel 6 on the property and it should be a Hilton Hotel, you can't do that in New Jersey . . . which is far from what Long Branch faced with the condition of the waterfront redevelopment area," Aaron said.

R. William Potter, whose law firm argued on behalf of the Gallenthins, said of the decision: "It pulls the rug out from anybody who believes property can simply be taken so it can be transferred to somebody else. I think this is the death knell for the anything-goes redevelopment we've seen in the last few years."

Potter contended the ruling could help the MTOTSA residents.

"If the standards set forth in this case are applied to Long Branch, MTOTSA and Beachfront South, then their property cannot be condemned and the long nightmare may be over," Potter said. "I emphasize the word "may' because the reviewing court still may have to apply this decision to a case that has been ongoing for a long time. . . . If these principles are used, then their nightmare is over. I just hope and pray it is not too late."

More interpretations

Peter H. Wegener, the Lakewood lawyer representing the majority of MTOTSA property owners, who submitted a brief in support of the Paulsboro property owners, said there is no way to read the decision that doesn't help his clients.

"The court has made it clear that they are not going to let condemnors get away with a very cursory net opinion, and an analysis and surveys of the kind that were carried out in Long Branch," Wegener said. "They are going to make sure the real spirit of the law is carried out and not let municipalities rely on the idea they can do everything they want and there'll be no judicial review unless it is arbitrary and capricious."

Robert S. Goldsmith, who submitted a brief in the Gallenthin case for the state League of Municipalities, Downtown New Jersey Inc. and the New Jersey Chapter of the American Planning Association, said the decision is not a defeat for those advocating redevelopment.

Goldsmith said issues such as the right of government to assemble properties for redevelopment and the right to use eminent domain, remain intact.

"The court said redevelopment applies to blight," Goldsmith said. "From any reasonable point of view, Beachfront North was blighted."

Goldsmith said the decision basically affirmed the state's position that taking land purely for economic development was not constitutional while it also said taking land for redevelopment was constitutional.

"It sounds to me that you cannot do redevelopment for economic development reasons, and that is not what we are doing," said Long Branch Mayor Adam Schneider. "You've got to show a blighted area. You've got to show an area in distress. We've always contended we've done that. . . . It seems to me we're in pretty good shape."

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