Eminent domain won't happen on Long Branch Broadway Corridor
The Appellate Division decided a group of eminent domain cases involving the Broadway Corridor in Long Branch: Cottage Emporium, Inc., t/a, Rainbow Liquors, Gopal Panday, Davita Panday, The Lighthouse Institute for Evangelism et al v. Broadway Arts Center, City of Long Branch v. Lighthouse Mission and City of Long Branch v. Gopal Panday, Davita Panday and Cottage Emporium (A-0048-07T2, A-4415-07T2, A-4416-07T2). The cases were argued March 15, 2010, before Judges Lisa, Baxter, and Alvarez, and a per curiam decision was issued on April 16, 2010.
The unanimous panel remanded the Broadway Corridor cases back to the trial judge, Monmouth County Assignment Judge Lawrence Lawson. Instead of dismissing the eminent domain complaints, the court is fashioning a remedy which is not supported by the law.
Here the court arrived at a conclusion similar to the decision in City of Long Branch v. Anzalone, and City of Long Branch v. Brower, which both involved the MTOTSA neighborhood. The appellate panel, led by one of the judges who heard the Anzalone case and two who did not, invited Long Branch to revisit the blight issue and attempt to meet “the substantial, credible evidence” standard for proof of blight. Here the court wrote in its opinion:
However, our courts have cautioned that the "substantial evidence" standard requires "a record that contains more than a bland recitation of applicable statutory criteria and a declaration that those criteria are met." Gallenthin, supra, 191 N.J. at 373. That standard similarly prohibits a municipality from exercising eminent domain on findings that are "supported by only the net opinion of an expert." Ibid. Instead of simply describing the physical and financial status of the properties to be taken, the municipality or its expert must perform "an analysis of the statutory criteria as [they] applied to each of the properties in the designated" redevelopment area, and of how each property's condition reflected or contributed to the area's blight. ERETC, supra, 381 N.J. Super. at 279-80.
The city will not be able to prove blight under this standard. Why not dismiss outright? That’s the law.
If there is no blight, you cannot condemn under the Local Redevelopment Housing Law, 40A:12A-1 et seq., and the New Jersey Constitution Article VIII, § 3, ¶1. Findings of blight are grounded on a record made before the local planning board and the expert testimony presented to the board. The Superior Court Law Division, under the present law, does not establish the “record” for blight. Its role in a prerogative writ suit is to review the legality of the blight conditions presented on the record before the planning board.
Contrary to popular opinion, the decision written by Justice Zazzali in Gallenthin v. Paulsboro did not establish new law. It reiterated what has always been the law: Blight must be established by substantial, credible evidence. A mere recitation of the statutory criteria found in N.J.S.A 40A:12A-5 (a-h) is not enough. Blight must be proven. This is not a novel idea. What is apparent in the case law is that municipalities and their selected developers were blighting properties indiscriminately without the requisite proof. The clear message in Gallenthin was that this practice would no longer be tolerated by the state’s highest court, and the lower courts have fallen in line.
This does not mean that redevelopment is dead, but it does means that eminent domain abuse, as practiced by some municipalities on behalf of politically connected developers, will not be tolerated. Municipalities will have to be more creative in their redevelopment efforts. This will force real negotiations for acquisition of properties.
Keeping the case alive only gives the city of Long Branch leverage to negotiate fees and costs. Per N.J.S.A. 20:3-26 (6) See our blog on West Orange v. 769 Associates (April 9, 2009). Then when a number is agreed upon, Long Branch will dismiss the cases. The statute only pays for attorneys’ fees and costs. The ancillary damages to property owners such as Gopal Panday, who lost his business in the process, and the Lighthouse Mission and Rev. Kevin Brown, who has since moved from Long Branch, remain uncompensated. They will not be able to regain what was lost here.
LINKS
City of Long Branch v. Anzalone eminent domain settlement agreement (September 18, 2009)
Long Branch case reversed, remanded (August 7, 2008)
N.J. Supreme Court clarifies 'blight' meaning in Gallenthin eminent domain case (June 13, 2007)
Kelo anniversary, the eminent domain abuse saga continues (June 23, 2006)