A more extensive article from Friday newspaper is linked here
http://www.nj.com/news/ledger/topsto...fe_to_lon.html
Quote:
Long Branch homeowners win round in eminent domain fight
by MaryAnn Spoto/The Star-Ledger
Friday August 08, 2008, 12:05 AM
Residents of a Long Branch neighborhood slated to be seized by the city and razed to make way for an oceanfront redevelopment project will get a chance to save their homes, an appeals court ruled Thursday.
The court upheld a number of the city's actions, including its right to delegate its eminent domain authority to the developer but said Long Branch failed to show the condemned homes met the legal definition of blighted.
The unanimous 85-page ruling was viewed by critics of eminent domain as another blow to towns by an increasingly skeptical New Jersey judiciary. Over the past year, the courts have been reining in towns' use of sweeping seizure powers to make way for large-scale redevelopment.
The Long Branch case, in particular, gained national attention from property rights advocates, who hailed Thursday's decision as long overdue.
"The ruling once again reaffirms the constitutional rights of property owners," said state Public Advocate Ronald Chen, whose office joined in the legal fight. "As such, this is not just a victory for the ... homeowners, but for every citizen of this state."
He called on Long Branch to drop its pursuit of the homes.
Rather than dismiss the case, though, Judges Joseph Lisa, Richard Newman and Paulette Sapp-Peterson sent it back to Superior Court Assignment Judge Lawrence M. Lawson in Freehold for a hearing in which the city will have to prove the properties are blighted.
That disappointed homeowner Denise Hoagland, who said she felt Lawson had not given residents fair consideration back in 2006.
"It just prolongs our nightmare," she said.
Long Branch had moved to seize three dozen homes in the north end of its oceanfront -- on Marine Terrace, Ocean Terrace and Seaview Avenue -- to continue its massive redevelopment project. Residents complained the city declared the entire area blighted without taking into consideration their well-maintained modest bungalows, where many had lived for more than 40 years.
Of the 36 properties sought, the majority have contracted with or sold to the developer. About 13 are fighting the condemnation.
The city argued the neighborhood had a high vacancy rate and some homes were in poor condition. Officials maintained market forces would not improve conditions.
Mayor Adam Schneider said he interprets the decision as "saying we now have to meet a standard that wasn't yet set when we did our work in 2005 and when Judge Lawson decided it in 2006."
He said he does not consider the ruling a defeat, because the city can prove the area is blighted.
"It simply slows down the process at a time that's not so bad, because nobody's building anyway," agreed city attorney James Aaron. "Let the economy turn around."
Aaron said by dismissing most resident claims, the decision finally settled "venomous" allegations that he and another attorney, James Greenbaum, had a conflict of interest dating from their previous representation of the developer's parent company, K. Hovnanian.
The city has 20 days to decide whether to appeal to the state Supreme Court or request a hearing within six months before Lawson.
Thursday's decision said an area cannot be considered blighted solely because it generates a lower amount of property taxes for a municipality and less spending at local businesses than it would if it were redeveloped.
That would set a dangerous precedent, the court said, prompting seizures of property based on a "perceived insufficiency of wealth" and setting up a situation in which properties would be continuously subject to redevelopment.
Towns have long had a constitutional right in New Jersey to seize blighted property. But under a sweeping redevelopment law adopted in 1991, the definition was broadened to include an "underutilized" category, and towns began using it to remake old residential and industrial neighborhoods into large-scale developments.
But in 2007, the state Supreme Court raised serious questions about the practice by ordering that a finding of actual blight was needed before private property could be seized. The decision yesterday relied heavily on the decision in Gallenthin Realty Development Inc. vs. Borough of Paulsboro.
"We conclude that, under Gallenthin's heightened standard, the record does not contain substantial evidence to support the city's findings under any of the subsections (of the state's Local Redevelopment and Housing Law) upon which it relied," the court wrote yesterday.
William Ward, attorney for homeowners Louis and Lillian Anzalone, said he was pleased with the decision and said it is the first step in getting the condemnation overturned.
"The city as a practical matter is not going to be able to prove blight, and I doubt they'll be able to find a planning expert who will say there is blight," he said.
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A photo of Louis and Lillian Anzalone, who were among the 13 Long Branch homeowners entangled in this litigation, standing on the porch of their "blighted" home.
A photo of Lori Vendetti and her parents (who live across the street) in front of her "blighted" home.
A photo of that home in the context of its larger "blighted" neighborhood.
A photo of the "blighted" home of Olga Netto.
The homes threatened by eminent domain on Marine Terrace, Ocean Terrace, and Seaview Avenue -- as their street names suggest -- were either fronting the beach or very close to it. The findings of blight did not rely upon interior inspections. Homeowners alleged that small chips in the masonry or insignificantly small areas of peeling paint were the basis for the findings. In Long Branch and elsewhere around New Jersey, homeowners have alleged that after designating certain areas as blighted and in need of redevelopment, officials have deliberately exacerbated the blighted conditions they claim to decry, by denying permits for improvements. This has diminished property values, bringing down the acquisition costs for the chosen developer.
The following is the prepared statement of New Jersey's Public Advocate, whose office filed amicus briefs supporting the position of the homeowners who faced loss of their properties to eminent domain.
Quote:
NEW JERSEY PUBLIC ADVOCATE RONALD K. CHEN
STATEMENT ON TODAY’S 8/7/08 APPELLATE DECISION IN FAVOR OF LONG BRANCH PROPERTY OWNERS
I am very gratified by today’s decision. The appeals panel agreed that the city did not meet its basic obligation to provide evidence that the MTOTSA neighborhood was blighted.
I am further gratified that the panel “did not find actual blight under any subsection” of the state’s redevelopment law and specifically noted that “the record lacked substantial evidence that could have supported the New Jersey Constitution’s standard for finding blight.” The ruling relies heavily on the New Jersey Supreme Court’s ruling last year in Gallenthin Realty Development, Inc. v. Borough of Paulsboro. The ruling once again reaffirms the constitutional rights of property owners. As such, this is not just a victory for the MTOTSA homeowners but for every citizen of this state.
The New Jersey courts have made it abundantly clear that under our state Constitution, eminent domain cannot be used to raze a neighborhood merely to make way for luxury townhouses and condominiums. Our Constitution permits the use of eminent domain for redevelopment only in blighted areas, and in this case the court held that the City of Long Branch simply failed to show that the MTOTSA neighborhood was blighted under any definition.
Furthermore, it is clear that the city cannot continue to claim that the MTOTSA neighborhood is essential to its redevelopment plans. Long Branch’s beachfront redevelopment has proceeded unabated and quite successfully during the years this case made its way through the courts.
Given the force with which the court repudiated the city’s claims, as city officials decide whether to pursue this case further, I hope they consider the human toll this case has taken on the homeowners—their constituents--who waged this battle for so many years.
This ruling and the other important rulings by the Supreme Court and the Appellate Division in the area of eminent domain provide municipalities with clear direction on how to proceed with redevelopment in ways that are consistent with state law and comply with the protections that the New Jersey Constitution provides for property owners.
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08-07-2008, 09:20 PM
EMINENT DOMAIN: New appellate ruling in NJ
Friday article
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