New Jersey Eminent Domain Law Blog

Last Thursday’s meeting of the Senate Community and Urban Affairs Committee ended shortly after it began. With no quorum and two of the Democrats missing, Senator Rice withheld the eminent domain reform bills until the next meeting which, he said, the would be in a few days. “This legislation will continue to come up until we can determine what the real problem is with Democrats -- in terms of not appearing…or in terms of the vote. This bill has been compromised so much, and every issue that was raised by Senator Sweeney and Assemblyman Burzichelli in their communications to me, dated May 12, has been addressed one way and another, most of them ended up in compromises, so I know that everyone had every opportunity to read all the changes, the amendments, etc.”

The previous Thursday, June 8, the committee was supposed to discuss the most recent iteration of S-757. That hearing was postponed.  Here is the June 1, 2008 version of S-757. The bill proposes changes to the Local Redevelopment Housing Law, the Eminent Domain Act of 1971 and the Relocation Assistance Act.

The Halper family has had a long, tortuous history with the township of Piscataway regarding the acquisition of their farm. The township condemned the 75-acre farm for open space on December 10, 1999. Piscataway offered $4.326 million as its estimate of just compensation pursuant to N.J.S.A. 20:3-6. The jury awarded awarded $17.9 million as of September 3, 2004  -  the date of the filing of the declaration of taking and the deposit with the Superior Court Trust Fund. The initial deposit of $4.326 was withdrawn immediately.

On May 14, 2008, Appellate Division Judge Donald S. Coburn issued an opinion, approved for publication, affirming the jury verdict in the Township of Piscataway v. South Washington Avenue LLC; Ruth Halper, Lawrence Halper, et al. Download the opinion here. There are two important issues in this case: first, the Halpers appeal regarding their objection to the right to take their property; and second, the date of valuation per N.J.S.A. 20:3-30.

As to the first issue, the court ruled in favor of Piscataway, noting that once the deposit is withdrawn, the condemnee waives any rights other than those related to the amount of compensation:

We are satisfied that Piscataway's interpretation of N.J.S.A. 20:3-27 is sound, particularly when it is construed in light of the fundamental common law rule that "a litigant who voluntarily accepts the benefits of a judgment is estopped from attacking it on appeal." Tassie v. Tassie, 140 N.J. Super. 517, 524 (App. Div. 1976) (citations omitted). We also noted in Tassie, that

[t]he rule that a litigant cannot seek appellate review of a judgment under which he has accepted a benefit is but a corollary to the established principle that any act upon the part of a litigant by which he expressly or impliedly recognizes the validity of a judgment operates as a waiver or surrender of his right to appeal therefrom.
[Id. at 525 (citations omitted).]

I would note that this holding seems to be at odds with the recent decisions of the Appellate Division in the Harrison cases. All three cases were reversed and sent back to Hudson County Assignment Judge Maurice Gallipoli for further action. There are serious complications in one of the companion cases, Harrison Redevelopment Agency v. Amaral: Mr. Amaral withdrew the deposit, the buildings on the property have been demolished, and he has relocated his business to Lyndhurst, New Jersey. If Judge Gallipoli follows the courts reasoning in the Halper case, Mr. Amaral has achieved a pyrrhic victory and the only issue remaining for him is the argument over compensation.

The Appellate Division heard three hours of arguments from the assembled attorneys representing Long Branch property owners and the city of Long Branch. The argument before the media and a standing room crowd of spectators included the property owners, their families, and interested parties to the eminent domain issues. This case is the most important eminent domain case in the appellate pipeline, and could very well go to the New Jersey Supreme Court, depending on the outcome of the Appellate decision, which is expected in the early fall.

Download today's coverage in The Asbury Park Press and The Star-Ledger. 

MEDIA ADVISORY: City of Long Branch v. Anzalone

The Appellate Division of the Superior Court will hear oral arguments tomorrow in two eminent domain cases, City of Long Branch v. Anzalone and City of Long Branch v. Brower, on the 5th floor of the Richard J. Hughes Justice Complex, 25 Market Street, Trenton, New Jersey. The arguments are before Judges Joseph Lisa, Richard Newman, and Paulette Sapp-Peterson (Panel G). The Appellate Division has issued a revised media advisory.

Louis and Lillian Anzalone, who in their nineties are the eldest residents of the MTOTSA (Marine Terrace, Ocean Terrace, Seaview Avenue) neighborhood, are represented by William J. Ward of the law firm of Carlin & Ward in Florham Park and Brian Weeks of the Office of the Public Advocate, amicus in the case. The bulk of the MTOTSA residents are represented by Peter Wegener of Bathgate, Wegener, & Wolf in Lakewood and Scott Bullock and Jeff Rowes, attorneys with the Institute for Justice in Arlington, Virginia. The IJ argued the Kelo case before the U.S. Supreme Court.

The homeowners appealed the June 22, 2006 decision of Monmouth County Assignment Judge Lawrence Lawson, who ruled that the property owners were not entitled to a hearing or discovery on the “right to take” and dismissed the owners objections to the appointment of condemnation commissioners -- a final judgment on the right to take issue. This decision, issued a day before the first anniversary of the Kelo case, would allow the condemnation suits regarding the various properties to go forward. The Anzalones obtained a stay at the inception of the appeal.

The chief issues to be addressed by the court will be:
I. Conflicts of Interest and the Local Government Ethics Law as it applies to municipal officials and their legal representatives
II. Blight and its definition in light of the New Jersey Supreme Court’s decision in Gallenthin v. Borough of Paulsboro
III. Notice and Due Process regarding the redevelopment plan where the status of the properties in the neighborhood was changed from residential infill to properties to be acquired by condemnation.

The property owners seek a reversal of Judge Lawson's 2006 decision. In light of recent case law, attorneys representing the property owners will ask the court to dismiss the condemnation cases outright. At the very least, the matter should be remanded to the trial court for discovery and a full evidentiary hearing.

The Anzalones will be in court tomorrow for the proceedings. Louis Anzalone, a veteran of World War II and a former engineer with Lionel Trains, has always maintained that he wanted to stay in his home. "I don't want their money," he told the Public Advocate. "I want my house. From my back porch, I have a panorama of the whole ocean. It's heaven on earth."  

A rally is scheduled for 8:20 a.m. in front of the Hughes Justice Complex. 

Tomorrow May 5 at 10 a.m., the Senate Community and Urban Affairs Committee will take up S-757, the latest version of eminent domain reform, sponsored by Senator Ronald Rice. To read the most recent amendments, download bill S-757. The meeting  will take place in Committee Room 7 on the second floor of State House Annex, Trenton, New Jersey.

Rice is desperate for a second to move the bill, and committee affirmation, so that the bill can be put before the full Senate for action. This belies a critical question: How will this bill be reconciled with other pending bills - A1492, S559, and S1020, by Assemblyman Burzichelli, Senators Sweeney and Weinberg respectively – which also propose reform to the current version of the New Jersey Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 et seq. Burzichelli’s bill passed the assembly in June 2006, ironically on the same day that Judge Lawrence Lawson issued his decision in the MTOTSA cases - City of Long Branch v. Brower and Anzalone.

Once again, the forces of eminent domain reform have been summoned to Trenton to testify and demonstrate for change. We expect the League of Municipalities to reiterate what they have said before: The courts have clarified the existing law in the Gallenthin and DeRose cases regarding the requisite substantial evidence required for blight determination and all-important notice provisions to affected property owners. Simply put, their position will be that the recent case law is all that needs to be memorialized in the statutes. We have yet to hear from Senate President Codey or Governor Corzine regarding the progress of eminent domain reform.

NOTICE: YOUR PROPERTY MAY BE CONDEMNED.  If you own a property in an "area in need of redevelopment," (a.k.a blighted area") you would expect to see those exact words at the top of the notice you receive from a municipality. The notice issue was first discussed on this blog in a commentary about the Shennett case, when the Passaic Redevelopment Agency justified taking Charlie Shennett's land and said they did what they were legally required to do. I wrote then: This is not enough. The notice requirement does not spell out in the text what the ultimate outcome will be: in this case, condemnation and acquisition of the property through eminent domain proceedings. How is this due process?

Yesterday the Appellate Division of the New Jersey Superior Court decided the due process issue in three cases. Writing for the court, Judge Jack Sabatino issued an 88-page opinion, approved for publication, in Harrison Redevelopment Agency  v. De Rose v. Town of Harrison, et al. The companion cases are Harrison Redevelopment Agency  v. Amaral and Harrison Redevelopment Agency  v. Harrison Eagle.

The court ruled that the 45-day limit to file suit against a municipality's effort to blight property for redevelopment is constitutional only if the owner received notice that the action contemplated by the redevelopment may result in the condemnation of their property. The court said:

We hold that, unless a municipality provides the property owner with contemporaneous written notice that fairly alerts the owner that (1) his or her property has been designated for redevelopment, (2) the designation operates as a finding of public purpose and authorizes the municipality to acquire the property against the owner's will, and (3) informs the owner of the time limits within which the owner may take legal action to challenge that designation, an owner constitutionally preserves the right to contest the designation, by way of affirmative defense to an ensuing condemnation action. Absent such adequate notice, the owner's right to raise such defenses is preserved, even beyond forty-five days after the designation is adopted.

Three's a charm.  New Jersey's promised eminent domain reform enters its third year after many iterations of the bill, passed by the Assembly in 2006, failed in the Senate Community and Urban Affairs Committee in 2007, and reintroduced and referred on January 8 to the Assembly Commerce and Economic Development Committee as A1492.  The new eminent domain reform legislation (download the PDF) is the latest attempt by New Jersey legislators (sponsors John J. Burzichelli, Nilsa Cruz-Perez, Douglas H. Fisher,  and Pamela R. Lampitt) to amend the Local Redevelopment Housing Law (LRHL, N.J.S.A. 40A:12A-1 et seq.). The companion bill introduced to the Senate Community and Urban Affairs Committee is S559, sponsored by Senators Steven M. Sweeney, Barbara Buono, and Loretta Weinberg.

The public hearings, drafts of legislation, and testimony for interested parties on all sides of this contentious issue have continued without resolution.  Governor Corzine promised voters during his gubernatorial campaign in 2005 that eminent domain reform would be accomplished early in his administration.  Last year, at one of his public forums in Union Township, the governor said he would sign a bill by the fall of 2007.  The public is still waiting.

Note: Kevin Moore of Sills Cummis and William J. Ward of Carlin & Ward will discuss the current bill, its merits and shortcomings, and the status of eminent reform at the Eminent Domain in New Jersey  Lorman Education Seminar on April 17, 2008, in North Brunswick. For more information about the agenda, faculty, and continuing education credit, click here.

SAVE THE DATE...William J. Ward, Esq., author of the New Jersey Eminent Domain Law Blog, will moderate the Lorman Education seminar Eminent Domain in New Jersey for the third consecutive year on Thursday, April 17, 2008, in North Brunswick, New Jersey.  The seminar is an opportunity for attorneys, real estate appraisers, planners, and other professionals involved in real estate development, land use, and eminent domain practice to participate in a dynamic exploration of current legal issues and obtain continuing education credit. Download the brochure.

This year, in addition to an emphasis on recent case law and eminent domain reform legislation, the agenda will include fair housing, RLUIPA (Religious Land Use and Institutionalized Persons Act), zoning and its effects on highest and best use, contesting the right to acquire property, and the ethics of redevelopment and eminent domain practice. The faculty includes many attorneys and real estate professionals who have been active on the frontlines of eminent domain litigation and legislative reform.

Last year, more than 75 people registered for this seminar. Interested parties can register online beginning Monday, January 28, 2008, at Lorman Education Services, Seminar ID: 377876. There will be a limited number of press credentials available. Interested publications should contact Susan Ward at 973-377-3350.

The New Jersey Institute for Continuing Legal Education will hold its 2008 Redevelopment Law Institute on Friday January 25 in New Brunswick featuring The Impact of Gallenthin v. Paulsboro and Other Recent Cases. Several cases following the Gallenthin decision have affected municipalities' use of eminent domain in redevelopment efforts. The morning panel, comprised of Mitchell Abrahams, Anne S. Babineau, Robert Beckelman, the Hon. Peter Buchsbaum, and James M. Turteltaub, will discuss the impact of Gallenthin on redevelopment.

Turteltaub represented Suydam Investors in the Housing Authority of New Brunswick v. Suydam Investors, LLC, 177 N.J.2 (N.J. Supreme Court, 2003). He also successfully argued on behalf of the property owners in 110 Washington Street v. Township of Bloomfield (L-2318-05) and Carolyn Evans and Rivco Group, LLC v. Township of Maplewood (L-6910-06). The Bloomfield case was instrumental in laying the groundwork for subsequent cases contesting the right to take in New Jersey and discussed on this blog here and here. The opinion in the Maplewood case is a thorough application of the Gallenthin case, which has been discussed here.

Reference materials submitted for the seminar include the following resources:

1. "Clarifying Blight Criteria for Redevelopment in New Jersey,"  by James M. Turteltaub, written for the NJ ICLE seminar
2. "Defining Blight," by William J. Ward, reprinted here with permission of the New Jersey Law Journal
3. "Reversal of Blight," by William J. Ward, reprinted here with permission from the New Jersey Law Journal

To reserve a space for the NJICLE seminar, click here.

There was one eminent domain bill passed in New Jersey -- on January 13, 2008, to be exact. No, it was not a reform of the Local Redevelopment Housing Law, long considered by the Legislature, passed by the Assembly, and never voted out of the Senate Community and Urban Affairs Committee. Instead, two Hudson County Democrats, former Senator Joseph Doria and former Assemblyman Louis Manzo have given us P.L. 2007, c.290 (Bills S-2743 and A-4625 respectively), which amend P.L. 1962, c.198, N.J.S.A. 48:12-35.1, concerning procedures to be followed by railroad authorities seeking to expand their right of way and condemnation of property.. The bill was co-sponsored by Assemblyman Patrick J. Diegnan of South Plainfield.

Under the new bill, railroads seeking to use eminent domain must demonstrate to the Department of Transportation:

...that alternative property suitable for the specific proposed use of the property to be taken is unavailable, either through on-site accommodation or through voluntary sale of alternative, reasonably situated property, and that the interest in the property to be taken does not exceed what is necessary for the proposed use, and shall also demonstrate to the Department of Transportation at an informal hearing the specific use to be made of the land or other property or interest to be acquired and that such proposed use is necessary and consistent with the purposes enumerated for such railroad utility and with the extent of the land or other property or interest to be condemned; and (c) any land and property necessary to comply with any order, determination, rule or regulation of the Department of Transportation.

The law provides for an administrative hearing before the Office of Administrative Law (OAL) where the railroad seeking to use eminent domain must demonstrate compliance with the new act and bears the burden of proof. Interestingly, the bill provides for notice to the fee-owner as well as tenants, and easement holders whose interest may be affected by the taking. This was a stealth bill which received little or no comment in the press and was not the focus of any of the eminent domain activist groups or those who oppose reform. The new law, signed by Governor Corzine on January 14, was among a number of bills pushed through during the lame duck session of the Legislature.  See the statement and reprint of S-2743 here and here.

Pay-to-play remains at the heart of the problem in New Jersey redevelopment and the authorization of eminent domain. Simply put, developers contribute to the campaigns of mayors and council members; and, in turn, the mayor and council designate the developer for the project and use the municipal power of eminent domain to acquire properties needed to assemble the project area. Although New Jersey recently adopted pay-to-play legislation, the piece that would apply specifically to eminent domain has been notably missing in any of the iterations of the proposed eminent domain reform bills to date. See my paper and power point (PDF-2MB) presented last October at  the CLE International seminar on Ethics and Redevelopment in New Jersey.

Yesterday the Appellate Divison of the New Jersey Superior Court issued an important public policy decision in the case People for Open Government v. David Roberts (A-4926-05T1). The opinion of the court was delivered by Judge Harvey Weissbard and approved for publication. The case involves litigation instituted by former residents of Hoboken seeking to compel the Mayor and Council to enforce a municipal ordinance designed to curtail “pay-to-play” where individuals and corporations are awarded municipal contracts as a reward for political contributions. The issue involves a Hoboken ordinance passed on November 2, 2004, which had been placed on the ballot through voter initiative. Among other things, the ordinance restricts political contributors from negotiating or entering into contracts with the city. The Law Division dismissed plaintiffs’ suit based on a conclusion that the plaintiffs lacked standing. The Appellate Division reversed and remanded, concluding that the plaintiffs have a sufficient particularized interest in the enforcement of the ordinance beyond their status as “mere taxpayers.” Download the case here.

West Orange v. 769 Associates LLC (A-5677-05)

In an unanimous decision of the Appellate Division issued on December 24, 2007, and approved for publication, Judge Jose Fuentes writing for the panel, ruled that a property owner can recover litigation costs under the provision in the Eminent Domain Act, N.J.S.A. 20:3-26(b). At issue in the litigation was whether the property owner’s legal contest of the right to take was the cause for the abandonment of the condemnation case. In a ruling reversing the trial court, which had trimmed the litigation fees sought by the property owner, the appellate court said:

“in the context of an abandonment of condemnation action, the right to recover costs and counsel fees is not contingent upon the success of the property owner’s defense strategy.…[S]tated differently, to recover costs and professional fees in an abandonment setting, a property owner does not have to show a causal link between its legal efforts resisting the condemnation and the condemning authority’s decision to abandon the taking.”

This decision is a corollary to the Supreme Court’s decision in West Orange v. 769 Associates, LLC, 172 NJ 564 (2002) where the court ruled that the taking contemplated by West Orange was a legitimate public purpose. Thereafter, West Orange and the property owner entered into a Consent Agreement whereby West Orange formally abandoned the condemnation action. This resulted in the property owner seeking legal fees and costs under N.J.S.A. 20:3-26(b) which provides:

 “...if the court renders final judgment that the condemnor cannot acquire the real property by condemnation or, if the condemnation action is abandoned by the condemnor, then the court shall award the owner any right or title to or interest to such real property, such sum that will reimburse such owner for his reasonable costs, disbursements and expenses actually incurred, including reasonable attorney, appraisal and engineering fees.”

The Appellate Court concluded that the trial judge properly excluded pre-litigation expenses and those arising from a prerogative writ suit that challenged a related municipal planning board decision, since those fees and costs did not arise from the “four corners” of a condemnation action. The Appellate Court also affirmed the trial court’s disallowance of counsel fees incurred in attending municipal hearings, reproducing municipal records and obtaining transcripts of the sessions of the municipal governing body.  Download the opinion here.

"Asbury Partners is very sad that the current financing and real estate market has caused Metro to suspend construction on the Esperanza." -- Larry Fishman

In 2006, the demolition of the C-8 steel skeleton, a symbol of redevelopment failure, gave hope to Esperanza, the high-rise residential tower undertaken by developer Dean Geibel and  president of Metro Homes. The Hoboken developer halted construction and temporarily closed its sales office as reported in the Asbury Park Press.

Portions of the oceanfront in Asbury Park were blighted in 1984. Development never reached fruition due to a corrupt admininstration and a developer, Carabetta, who went bankrupt. In the 20 years that ensued, the city became a ghost-town. When Asbury Partners purchased Carabetta’s interest from the bankruptcy court in 2002,  it seemed that redevelopment finally arrived. This is why Geibel’s announcement that he was halting construction was a blow to those involved in Asbury Park's redevelopment.  Geibel’s efforts missed the market, and if action is not taken by Asbury Park and its designated developer Asbury Partners, the city will again experience a period of non-activity and further decline in its most desirable section – the oceanfront.

These events point to one of the most pressing issues for eminent domain reform – the capping of the effective time for blight. We have suggested 5-7 years is sufficient. In the case of Asbury Park, 25 years puts a tremendous burden on the property owners, who would develop their own properties if allowed to.  In D&M Asbury Realty LLC v. City of Asbury Park (N.J. Super.A.D.2006), property owners sought to develop their properties in conformity with the redevelopment plan. This position was rejected by Judge Lawrence Lawson in the Monmouth County Superior Court and affirmed by the appellate division in an unanimous decision. Download the opinion here. Instead, these properties lie fallow, captive to the exclusive pre-emptive rights of Asbury Partners to develop the entire waterfront. They will only release portions of their development rights upon payment of exhorbitatnt fees to the potential developers. This scenario must be addressed by the New Jersey Legislature in 2008.  

United States District Court Judge Peter G. Sheridan issued an opinion on November 29 on a motion to amend the complaint in Albanian Associated Fund v. Township of Wayne. This case involves eminent domain, open space, and land use regulations in the context of proposed religious use, the building of a Muslim mosque on 11 acres in Wayne Township, New Jersey. Therefore, the Religious Land Use and Institutionalized Persons Act  of 2000 (RLUIPA) plays into the dispute as well. See 42 USC § 2000 cc (a) (1):

No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution (A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest.

There is a real fear among religious organizations that RLUIPA may not apply because it does not specifically mention the words “eminent domain.” Download the decisions in  St. Johns United Church of Christ v. City of Chicago  (U.S. Court of Appeals for the Seventh Circuit,2007) and Faith Temple Church v. Town of Brighton, 405 F. Supp. 250 (W.D.N.Y. 2005).

In Judge Sheridan's November 29 opinion, the court permitted the plaintiff to amend its complaint on eight counts and denied amendment on a new ninth count. The ninth count alleged violations of New Jersey’s Municipal Land Use Law (MLUL) which is the comprehensive statute governing land use applications and proceedings before zoning boards and boards of adjustment in the state (N.J.S.A. 40:55 D-1 et seq). The court barred the amendment based on the comprehensive system established under the MLUL and the N.J. Court Rules 4:69-1, which established a comprehensive non-jury procedure for plaintiffs contesting a municipal action.

The procedure established in the law and the court rules is consistent with the New Jersey Constitution Article IV § 6, Paragraph 2, which mandates uniform policies and procedures that any municipality must follow. Therefore, the court held the proper venue for plaintiff’s count 9 claim was before the New Jersey Superior Court in an action in lieu of prerogative writ.

The decision in Lighthouse Institute for Evangelism v. City of Long Branch, rendered by the United States Court of Appeals for the Third Circuit on November 27, has national implications for religious use, zoning regulations, and eminent domain. In its precedent setting 96-page opinion, the Third Circuit ruled 2-1 in favor of the City of Long Branch against Reverend Kevin Brown and the Lighthouse Institute for Evangelism in their attempt to establish a church at 162 Broadway within the Broadway Corridor Redevelopment area. However, the court remanded the case to Judge William Walls in the U.S. District Court for further findings on the plaintiff's challenge to the C-1 ordinance, the zoning for the subject property prior to the adoption of the redevelopment ordinance and plan, under RLUIPA's Equal Terms provision. The court was unanimous that the C-1 ordinance violated RLUIPA. This will entitle the plaintiffs to damages, counsel fees, and costs. Read the opinion here.

The federal statute at the heart of the question is the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), the most recent congressional effort to protect religious exercise from discrimination through land use regulations. The Equal Terms provision states:

No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution.

Mark Twain said, “There are two things you should never watch being made: sausage and legislation.” Heeding that advice, I saved myself a trip to Trenton and listened to yesterday’s Senate Community and Urban Affairs Committee hearing on eminent domain reform on my computer. Twain’s admonition should offer an additional caveat: Don’t listen to legislation being made, especially when lame duck is on the menu. It’s lame because the legislation never reaches fruition; Duck when the people in power dodge their responsibility to improve the state's eminent domain laws.

Yesterday’s hearing on S-1975 and its companion bills were at least the fifth iteration of the proposed changes to the Local Redevelopment Housing Law (LRHL) and portions of the Eminent Domain Act of 1971. Keeping up with the latest version can be a challenge: the penultimate version was issued Friday, November 23 (the Friday after Thanksgiving, which was not a state holiday). The text was amended prior to the hearing. It is always a moving target in Trenton; one arrives prepared to testify to one bill, only to find that it has been changed while you were on the N.J. Turnpike.

To cut to the chase, the Senate Community and Urban Affairs Committee adjourned once more without taking action. It appears that eminent domain reform in New Jersey will not take place in 2007. There is no push from the Democratic leadership, Governor Corzine, Senate President Codey or Assembly Speaker Roberts to do anything further this year.

While she waited for the next round in the eminent domain fight against the City of Long Branch, Anna DeFaria, 82, lost her battle with ovarian cancer. Last Wednesday, she died at home.

Home was the modest, oceanfront cottage that DeFaria and her husband, Antone, owned since 1960. Her husband died in 1996, the same year that Long Branch declared its oceanfront in need of redevelopment. As the city blighted and condemned whole neighborhoods under the Local Redevelopment Housing Law to make way for new high rise condominiums along the beachfront, one group of neighbors banded together to fight for their homes on Marine Terrace, Ocean Terrace and Seaview Avenue (MTOTSA). Anna DeFaria was a champion among them.

Yesterday DeFaria's neighbors, who are spokeswomen in their own right, praised her activism. As quoted in Asbury Park Press, Denise Hoagland said, “I think she was a phenomenal woman who had integrity like none I’ve ever seen.”

Lori Vendetti told the Star-Ledger, “Her face is MTOTSA. We’re going to keep the fight going for her, as well as for everybody else.”

DeFaria was a retired preschool teacher. She walked two miles a day on the boardwalk, went to church, visited the senior center, and tended her vegetable and flower garden. In recent years, she frequented city council meetings and marched in eminent domain rallies. She became a familiar face in the mainstream press, appearing in television clips, magazine and newspaper articles that brought national attention to the Long Branch case. Her advocacy against eminent domain abuse is her legacy:

Where do you go if they take your home away? It was my first home, and my family loved it here…I feel safe and secure here. I thought I would stay here until I died. Atlanticville, (October 13, 2005)

I'll never buy a piece of property by [the] ocean again. How much do you need? A million dollars? You can't buy it, for God's sakes, anymore. And my husband fought for what? Freedom? For liberty? For everybody, or the few selected people that are coming from New York to buy there? CNN, (October 13, 2005)

We thought this was going to be our home forever…Now they want to take it away. It's unfair, it's criminal, it's unconstitutional…They're taking my home away -- not my house. My home. My life. The Boston Globe (February 6, 2006)

We worked very, very hard to have this little house…If they had to build a hospital or a road or something, you know, we wouldn't feel as bad as taking my house, knocking my house down to put a million dollar house on mine. That's what hurts me the most. PBS – NOW (February 10, 2006)

I'm 80 years old. My husband's gone nine years already. The Lord took him. And I have a problem with the eminent domain abuse. I think it's criminal. I think it's unfair, unjust and I don't know where I'm going to go. Fox News, Hannity & Colmes (February 17, 2006)

I can’t get anything in Long Branch for three and a quarter [$325,000], let alone an ocean view.  Parade Magazine (August 6, 2006)

We thought we'd stay here for the rest of our lives. Now, they think they can come and take what's ours. They can't. We're going to win this. Atlanticville (September 7, 2006) 

Read the profile of Anna DeFaria in the report of the N.J. Public Advocate.

The New Jersey Turnpike is the fifth busiest road in the nation and the proposed widening between exits 6 and 9 will be one of the biggest public works projects ever undertaken in the state. Preliminary plans, displayed at four public hearings last month, call for the six lane highway to be expanded to 12 lanes from Mansfield to Cranbury and for an expansion of toll plazas at exits 7, 7A, 8, and 8A.  Eminent domain will be used as required to acquire the necessary land for the widening as well as the toll plaza improvements. More than 100 properties may be affected by the project. Most of the acquistions contemplated in the project will be partial takings. Of the 381 acres to be acquired, the NJTPA anticipates only 10-20 will be total takings.

According to a report in today's Star-Ledger, preliminary engineering and property acquisition was paid for with reallocated funds ($175 million) from a now defunct project, Route 92, that was meant to provide a link between Route 1 and the Turnpike. But the funding for the entire widening project is estimated at $2 billion - so the state needs to find an additional $1.825 billion to make it happen. This will be the costliest widening project in Turnpike history.

The Tri-State Transportation Campaign has expressed reservations about the prioritization of the Turnpike widening in light of the imminent need for bridge repair and current deficit in the state's Transportation Trust Fund. While the options for funding appear limited, In the past, the Turnpike issued bonds to pay for roadway improvements. The debt service on the bonds would be paid from toll revenues. This still seems to be the most likely scenario for funding this project. However, it would require a large increase in tolls for Turnpike riders.  The monetization of the Turnpike discussed by the Corzine administration does not  provide a vehicle for funding the widening project. Instead, it is a quick fix to state budgetary issues, which may or may not be approved by the Legislature.

William J. Ward and James M. Turteltaub will speak on Monday, October 15, 2007, at the 3rd Annual CLE International Eminent Domain Conference at the Nassau Inn in Princeton, N.J. On Monday October 15, Mr. Turteltaub and Stephen Eisdorfer of Hill Wallack will discuss best practices in their presentation, "Appealing the Case."  Mr. Ward will present "Ethics and Redevelopment in New Jersey" The conference concludes on Tuesday, October 16. A full schedule of events can be obtained at the CLE International website.

Monday October 15 at 2:45 p.m.  Appealing the Case:  This presentation addresses special considerations for condemnation appeals. Condemnation actions have two final judgments and one award of commissioners, each of which must be appealed separately. Click here to read more about the course of action in contesting the right to take, staying an appeal, and other best practices. - James M. Turteltaub

Monday October 15 at 4:30 p.m. Ethics and Redevelopment in New Jersey:  This presentation with power point focuses on the bribery, corruption and pay-to-play that has tainted redevelopment in New Jersey as well as recent case law on conflicts of interest affecting lawyers and officials at the state, legislative, and local government levels. Click here to read more about recent events and the call to action for one uniform code of ethics. - William J. Ward 

September 2007 will go down in history as a month of infamy for New Jersey. The headlines in the state’s major newspapers featured the sentencing of former Ocean Township Mayor and Asbury Park Manager Terrence Weldon for accepting $64,000 in bribes from developers; the federal indictment of 11 municipal officials from Passaic, Paterson, Newark, Orange and Pleasantville on bribery charges in a sting operation. Finally, Governor Jon Corzine signed four ethics bills into law, includingA-4326 (sponsored by Michael Panter, D-Monmouth and Linda Greenstein, D-Middlesex) which forbids dual office holding, but grandfathered the 19 legislators who currently hold additional posts as long as they are re-elected or until they retire. At the bill signing ceremony, as reported in The Star-Ledger, the governor said, “It’s not the bill I wanted… It gets us down the road."

The road to hell is paved with good intentions. Earlier in the year, Harry Pozycki, chairman of the Citizen’s Campaign, gave the governor an “incomplete” in the area of pay-to-play reform, and in particular, for not taking on the culture of corruption. In an op-ed piece in the Asbury Park Press, Pozycki noted that the governor supported the ethics programs developed by Senate President Richard Codey, which were palliative at best, and did not delve far enough into the root causes of corruption. Most importantly, Pozycki said that pay-to-play must be addressed in the context of redevelopment:

Government’s powers in areas designated for redevelopment are nearly unfettered and include the power of eminent domain. It is important that redevelopment decisions are made in the broad public interest and not as a reward to large campaign contributors.

On the face of it, you may be wondering what eminent domain, demographics, and immigration policy have to do with each other. A disturbing trend is developing – the prime example is in Morristown, New Jersey, where Mayor Cresitello has been banging the drum to have local police deputized to enforce immigration laws. He blames “illegal immigrants” for crime, quality of life issues (vagrancy, loitering) – all of which adversely affect Morristown in the opinion of the mayor. As reported on August 18, 2006, in the Daily Record:

• On illegal immigrants in town: "I want tomorrow morning a bill passed that provides a pathway to legalization, but not citizenship, since they did jump the borders."
• On redevelopment in town: "It is about future tax needs. It's about rebirth. We need to revitalize the area. We need sources of revenue."
• On empowering some town police to enforce federal immigration laws: "It's intended to deal with felons. ... It absolutely would have prevented the murder of those three children (recently murdered in Newark)."

But this mayor is also aggressively pursuing blighting areas like Speedwell Avenue and Early Street. He is pushing to relocate (at no cost) the residents of these properties to make way for new residential and retail development. As reported in the July 23 issue of the Morris Daily Record:

While the town has several redevelopment projects in the works, the Speedwell Avenue
project is the largest and has the largest number of residents, Cresitello said.

The town is not responsible for relocating residents because there is no local, state or federal money in the project, the mayor said.

The mayor is dead wrong legally on the relocation issue. The law - The Relocation Assistance Act, N.J.S.A. 20:4-1 and the Regulations N.J.A.C. 5:11-1 et seq. - provide relocation assistance to any occupant dislocated as a result of a public project. There are roughly 90 residents in the 12-acre redevelopment area.

Today at the Statehouse Annex in Trenton, New Jersey high school students, who participated in the New Jersey Symposium on Leadership and Politics hosted by the Junior Statesmen Foundation and Princeton University, heard a lecture on eminent domain among other topics.

The symposium is a unique forum where students hear speakers at the highest level of state government and have the opportunity to ask questions of these officials in an informal setting. The students heard from members of Governor Corzine's cabinet and the Honorable William Pascrell III from the U.S. House of Representatives. It was an honor for me to participate as a guest lecturer and to have the opportunity to address a group of elite students, all of whom will be starting their senior year in the fall. Some of the group indicated interest in pursuing a career in law and most were interested in politics and governance at the state level. 

The students posed questions that demonstrate their awareness of the eminent domain issue and the controversy surrounding it. They were especially interested in the Kelo case and eminent domain reform and the pending changes to the current statutes that are under consideration by the Legislature. They asked questions about the eminent domain process and were concerned about property owner rights to compensation and relocation assistance. Democracy is not a spectator sport  -  that's the tagline on the Junior Statesmen Foundation web site. This calls to mind another quotation: "The price of democracy is eternal vigilance."  Those are the words of one of our founding fathers, Thomas Jefferson.  Based on my experience with this group of young people today, our participatory democracy is in good hands.

In a 35-page opinion issued Friday, August 10, 2007, and approved for publication, the Appellate Division of the New Jersey Superior Court upheld the validity of the Highlands Water Protection and Planning Act., N.J.S.A. 13:20-1 et seq. , and its impact on a 93-acre tract of land in Washington Township in Morris County.

The Highlands Act was signed into law in August 2004 by former Governor James E. McGreevey.  The law supercedes local municipalities with regard to land use planning in the Highlands region of northwest New Jersey, covering aproximately 800,000 acres in portions of Morris, Sussex, Passaic, Bergen, Warren, Hunterdon and Somerset Counties.

The case, OFP, LLC v. State of New Jersey, concerned a 93-acre tract of undeveloped land owned by OFP, LLC, located in Washington Township, Morris County. The land is located within the preservation area of the Highlands region (N.J.S.A. 13:20-7(b), (c)). In December 1999, the Washington Township planning board granted OFP's predecesor in title preliminary major subdivision approval to subdivide the property into 26 residential lots.  One critical permit, needed by OFP for potable water supply to the development tract, was pending and incomplete as of the date the Highlands Act was introduced in the Legislature, March 29, 2004. The permit was issued May 14, 2004, and afterward, the Legislature enacted the Highlands Act and the Governor signed the bill into law on August 10, 2004. A provision in the Highlands Act, N.J.S.A. 13:28, required all approvals from DEP to be in place before the Act was introduced. Since this was not the case, OFP's proposed subdivision was subject to the Highlands Act permitting review program, pursuant to N.J.S.A. 13:20-33.

Yesterday Essex County Superior Court Judge Donald Goldman vacated Maplewood’s blight declaration for two properties, one owned by Carolyn Evans and the other owned by Richard Rio of the Rivco Group LLC. The case was an action in lieu of prerogative writs where the plaintiffs contested the inclusion of their properties in an “area in need of redevelopment” under the Local Redevelopment Housing Law (LRHL), N.J.S.A. 40a:12A-1 et seq. The plaintiffs argued that the action of the defendant township was arbitrary and capricious and not based on substantial, credible evidence as required by the law. Download the PDF opinion in Carolyn Evans and Rivco Group, LLC v. Township of Maplewood (L-6910-06).

The court relied heavily on the recent case of Gallenthin Realty v. Borough of Paulsboro, 191 NJ 344 (2007). The court rejected Maplewood’s argument that the suit was premature because no plan for redevelopment has been adopted and no condemnation was imminent. Maplewood’s argument is typical of the disingenuous blather presented to property owners who oppose a blight designation under the 45-day time constraints. Municipalities are cavalier but deliberate when they ignore the impact of a declaration of blight or area in need of redevelopment: that designation, left unchallenged, is the foundation for subsequent eminent domain action by the municipality. The court noted:

Maplewood and its Planning Board also oppose this lawsuit on grounds of ripeness and standing. They argue that the case is not ripe for review because no development plan is yet in place. Evans and Rivco respond that the designation of an area in need of redevelopment is binding and permanent, and therefore can be challenged by anyone subject to its effects. This Court finds that Evans and Rivco have standing to challenge the designation. Gallenthin is itself evidence that a designation as an area in need of redevelopment is justiciable and that an attack on it is not premature. However, other relief sought by Evans and Rivco will be denied because such relief is premature. No attempt at taking their property is planned or suggested. Moreover, even an erroneous designation as being part of an area in need of redevelopment would not immunize the Evans and Rivco properties from being acquired for a truly public use. (Slip Opinion at page 3.)  

In a reported case, Cramer Hill Residents Association v. Primas (PDF),  brought by the South Jersey Legal Services involving the Cramer Hill Neighborhood of Camden, the Appellate Division unanimously reversed the trial court regarding Camden’s attempt to use eminent domain to acquire several parcels of land under the Fair Housing Act, N.J.S.A. 52:27D-325. Camden sought to use this act rather than the Local Redevelopment Housing Law (LRHL) after the trial court threw out Camden’s redevelopment plan. The Courier Post reported that the city decided to redo the Cramer Hill redevelopment plan prior to the court’s ruling on July 17.

The basis for the city’s eminent domain action was that the acquisitions would increase the number of affordable housing units in Camden. In reversing the trial court, the Appellate Division agreed with plaintiffs that a hearing was required at the trial level to establish that the proposed acquisitions would in fact increase the number of afford housing units. The court noted:

We are nevertheless compelled to remand this matter for the trial court to conduct a fact-finding hearing to determine if the ordinance passed under N.J.S.A. 52:27D-325 will assist the City in meeting its fair share housing obligation under the FHA. Stated differently, the trial court must determine whether the proposed land acquisition plan authorized by the ordinance actually increases the number of affordable housing units in the City.

In going about this task, the trial court should be guided by the overarching public policy supporting the City's authority to take private property by eminent domain under N.J.S.A.
52:27D-325: the exercise of the power of eminent domain granted to municipalities under section 325 is expressly predicated upon a finding that the proposed land acquisition is "necessary or useful for the construction or rehabilitation of low or moderate income housing." Ibid. Absent such a finding, the City lacks the legal authority to proceed under N.J.S.A. 52:27D-325 (Slip Opinion, page 7)

"Now we know that you can't simply say that you can redevelop on the basis that you're not getting the highest return on your land." - Michael Kates, Esq., as reported in the Star-Ledger (July 25, 2007)

Lodi's attempt to blight and ultimately condemn two trailer parks, comprising aproximately 20 acres in the vicinity of Route 46, has come to an end. In a unanimous per curiam opinion by New Jersey Appellate Judges Kestin, Payne, and Lihotz, the court affirmed the decision of Superior Court Judge Richard Donohue throwing out the resolutions of the Lodi Planning Board, Mayor and Council that blighted the subject properties. Download PDF of the opinion:  LBK Associates, LLC and Save Our Homes v. Borough of Lodi and Costa Realty v. Mayor and Council of the Borough of Lodi (A-1829-05T2)

Last week we reported that the new Lodi Council had unanimously agreed to drop the suit. The decision of the Appellate Division is in line with several recent decisions reported in this blog (see blog entries about Belmar, and Mulberry Street) which follow the Gallenthin decision (PDF) in rejecting blight where the municipalities have not provided substantial, credible evidence supporting their findings.

In addition the court said (see Slip Opinion at pages 4-5)

We reject defendants' argument that plaintiffs failed to overcome the presumption of validity attending municipal actions generally. See Concerned Citizens of Princeton, Inc. v. Mayor and Council of the Borough of Princeton, 370 N.J. Super. 429, 452-53 (App. Div.), certif. denied, 182 N.J. 139 (2004). Once plaintiffs demonstrated the redevelopment designation was not supported by substantial evidence, that municipal action was no longer entitled to the deference normatively afforded. See, e.g., Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, ___ N.J. ___, ___ (2007)(slip op. at 40-41); ERETC, L.L.C. v. City of Perth Amboy, 381 N.J. Super. 268, 281 (App. Div. 2005).

We also reject defendants' argument that the matter should have been remanded for further proceedings. The shortcomings in the determinations under review were too basic and too far at variance with current principles governing the redevelopment process to be amenable to repair through further hearings. Defendants are not precluded from beginning the process anew and evaluating the properties by the light of the holdings and underlying policies in cases cited by Judge Donohue and more recent judicial reflections in the subject matter area and cognate fields, especially those dealing with the concepts of obsolescence and underutilization stressed by defendants. See, e.g., Gallenthin Realty, supra, ___ N.J. ___. See also Kelo v. City of New London, 545 U.S. 469, 125 S. Ct. 2655, 162 L. Ed. 2d 439 (2005); Vineland Const. Co. v. Township of Pennsauken, ___ N.J. Super. ___ (App. Div. 2007).

In light of its findings concerning blight and the absence of substantial, credible evidence, the court did not address other important issues raised in the amicus briefs filed by the Office of the Public Advocate  (PDF) and the Northeast New Jersey Legal Services regarding the muncipality's constitutional obligation to make provisions for affordable housing and the effect of the exercise of eminent domain, which in these cases, would result in a net loss of affordable housing. This an important public policy issue which may be reached in the recent lawsuit filed by the Kaplan Companies of Highland Park seeking to overturn the Highland Preservation Act on the basis that it prevents the construction of senior and affordable housing in the Borough of Hackettstown.

The recent decisions that follow the Gallenthin ruling indicate that cases in the pipeline, including the cases in Long Branch pending oral argument in the Appellate Division, City of Long Branch v. Anzalone and Brower, will receive similar scrutiny regarding the propriety of municipal actions declaring blight and instituting eminent domain proceedings.  

Yesterday, Essex County Superior Court Judge Marie P. Simonelli issued a detailed 71-paged opinion in Mulberry Street Area Property Owner's Group v. City of Newark  (download PDF- 2 MB) and threw out Newark’s attempts to blight the Mulberry Street project area. The area consists of 14 acres of land improved with a mix of residential and commercial buildings and several parking lots. There are 166 lots, all but seven are owned by private businesses or individuals.

The area is located approximately one block east of the Newark Arena project presently under construction on Broad Street. The court devoted approximately 60-pages of the decision to a detailed, parcel by parcel analysis of the properties and concluded, after reviewing the reports and testimony of the respective planning experts, David Roberts of Schoor DePalma on behalf of the City and Peter Steck on behalf of the property owners, that the city had not provided substantial credible evidence of blight as required by the LRHL. The court relied heavily on the recent NJSC opinion in Gallenthin Realty v. Borough of Paulsboro (see Mulberry Street Area Property Owner's Group v. City of Newark excerpt at page 59-60.)

The court agrees that the City should be entitled to utilize the tools of redevelopment to allow it to once again take its place as the State’s most important and prominent City. However, it cannot do so in the manner in which it has done here. A unanimous New Jersey Supreme Court recently held in Gallenthin Realty Development, Inc. v. Borough of Paulsboro, __N.J.__(2007), that the constitutional requirement of blight is not met where the sole basis for the redevelopment is that the property is “not fully productive.” Slip Op. at 3. The Supreme Court carved out no exceptions to this holding. Thus, regardless of whether the property is located in a small municipality, such as Paulsboro, or a large municipality, such as Newark, whether it is vacant or unimproved or a parking lot, gravel lot or storage yard, a municipality cannot take property for redevelopment solely under N.J.S. A. 40A:12A- 5(e) merely because it believes that the land is not fully productive and can be use for something more beneficial to the general welfare. Slip Op. at 29. … (page 59-60)

The court finds, therefore, that the City declared the entire Mulberry Street Area as an area in need of redevelopment solely under N.J.S. A. 40A:12A- 5(e) because it is not property utilized and fully productive. Under the Gallenthin holding, this declaration does not meet the constitutional requirement of blight and must be invalidated and set aside. (page 61)

In a surprise development at a Monday night meeting in Lodi, the five members of the Borough Council voted unanimously to drop the appeal of a lower state court decision that found the borough had no grounds to blight land belonging to Brown's Trailer Park and Costa Trailer Court. More than 40 residents were affected by the town's attempt to seize the properties by eminent domain.

As reported in the Herald News, the president of Save Our Homes, the coalition of trailer park residents, Kendall Kardt said, " “I believe that a lot of people in town found this repugnant  on a lot of levels. They felt threatened themselves by the idea that eminent domain could be used to put people out of their homes.”

The decision in the case, issued by Bergen County Superior Court Judge Richard Donohue, was under appeal and pending at the time of the Borough Council's decision.  The Office of the Public Advocate submitted an amicus brief in this case on behalf of the property owners. Public Advocate Ronald Chen said, “In this matter, the trial court reached the correct ultimate conclusion – Lodi’s blight designation must fail."

The Council's decision now ends Lodi's attempts to seize these properties under the Local Redevelopment Housing Law. The decision by the Lodi Borough Council is further evidence that New Jersey municipalites are rethinking their redevelopment efforts in light of the N.J. Supreme Court's decision in Gallethin Realty v. Borough of Paulsboro.

Two recent decisions of the Appellate Division show that the N.J. Supreme Court decision in Gallenthin Realty v. Borough of Paulsboro  will be followed in pending cases, but Gallenthin is not the panacea envisioned by some property rights activists.

In the case of Citizens in Action v. Township of Mt. Holly, a unanimous opinion of the Appellate Division  affirmed Mt. Holly's finding of blight. The plaintiffs were a group of home owners who resided in or owned property in a section of Mt. Holly known as Mt. Holly Gardens. The trial court, after affording plaintiffs a hearing and an expansion of the record, affirmed the designation of an area in need of redevelopment. The Appellate Division affirmed the trial court and found that the municipality had met the burden under the LRHL of providing sustantial, credible evidence to support a finding of blight.  This case was argued in October 2006 and decided July 5, 2007, after the Gallenthin decision. The court discusses Gallenthin in the text of its opinion:

Redevelopment designations, like all municipal actions, are vested with a presumption of validity. Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, ___ N.J. ___, ___ (2007) (slip op. at 41); Levin v. Twp. Comm. of Bridgewater, 57 N.J. 506, 537-39, app. dismissed, 404 U.S. 803, 92 S. Ct. 58, 30 L. Ed. 2d 35 (1971); Hirth v. City of Hoboken, 337 N.J. Super. 149, 154, 161 (App. Div. 2001). Judicial review of a redevelopment designation is limited to whether the designation is supported by substantial credible evidence. Gallenthin, supra, ___ N.J. at ___ (slip op. at 41). This heightened deference is codified in the LHRL, which provides that an "area in need of redevelopment" designation "if supported by substantial evidence . . . , shall be binding and conclusive upon all persons affected by the determination." N.J.S.A. 40A:12A-6b(5). Accordingly, it is not for the courts to "second guess" a municipal redevelopment action, "which bears with it a presumption of regularity."
Forbes v. Bd. of Trs. of S. Orange Vill., 312 N.J. Super. 519, 532 (App. Div.) certif. denied, 156 N.J. 411 (1998).

It is clear from the text of the opinion that the substantial credible evidence standard will be strictly enforced. It is equally clear in this case, that Mt. Holly's expert met the test. The presumption of the validity of the municipal action remains intact and it is a difficult issue for the objecting property owners to overcome. Neither the Courts nor the Legislature will deny a municipality the tool of eminent domain where they seek to redevelop clearly blighted properties.

Recent case law suggests that more than a few municipalities declare blight based on reports that cite statutory language without analysis of the property and the categories selected, and most importantly, without linking the criteria to the health, safety and welfare of the community. Many experts presented by the municipalities do not provide substantial, credible evidence to support a conclusion that the study area is in need of redevelopment.  These cases and others are discussed in my recent article Defining Blight: First Steps in the Redevelopment Process published in the New Jersey Law Journal.

• Prior to the Kelo case, Camden County Assignment Judge Francis J. Orlando, Jr. set aside a municipal decision designating an apartment complex as an area in need of redevelopment in Spruce Manor Enterprises v. Borough of Bellmawr 315 N.J. Super 286 (Law Div. 1998). No evidence was presented to show how obsolescence, faulty design, excessive land coverage or obsolete layout was detrimental to the safety, health, morals, or welfare of the community.
• In Winters v. Township. of Voorhees 320 NJ Super 150 (Law Div 1998), Judge Orlando reversed a blight designation on an 18-acre municipal-owned tract that the township intended for construction of an ice rink. Voorhees argued that the revision of the statute in 1992 created two categories of land eligible to be designated as in need of redevelopment: land that is used by public entities and unimproved land that is not likely to be developed by private capital. The township argued that municipal ownership is all that is needed in order to declare the site a redevelopment area. Judge Orlando disagreed, concluding that ownership of a tract of land by a municipality is not, standing alone, sufficient to support a redevelopment designation; it additionally requires substantial evidence that the land is not likely to be developed through the instrumentality of private capital in order to declare a site a redevelopment area. 320 N.J. Super at 156.

Greetings from Asbury Park, a 93-minute film documentary, was shown Friday evening, June 22, as part of the “Kelo Day” anniversary activities at the Jersey Shore Arts Center.  There’s one heart-rending scene after another in a film about a senior citizen who finds out the city is condemning her property. There’s the title theme - postcards from Asbury Park. You vacation or you live at the shore; you buy postcards and send them home. Or in this case, you send them back to the relatives in Greece. Independent filmmaker Christina Eliopoulos documents the immigrant’s story, her family’s story, starring her 'great auntie,' Angie Hampilos. 

You have to admire the sheer gumption of this 92-year old woman, as she faces the condemnation of her home to make way for oceanfront redevelopment. Angie’s mad as hell, and she’s not going to take it sitting down. She’s going to visit the Mayor, but she mentions stoically that her lawyer told her to go see the Mayor on her own. Her niece Christina grabs a camera, any camera will have to do, because it’s important to document the moment her aunt finds out the mayor isn’t in. Angie’s disappointment is palpable. It’s so palpable, there’s hardly a dry eye in the house. Except for the group of people in the theatre from Long Branch – they’re mad as hell, too. 

In a unanimous decision which invalidated Paulsboro’s redevelopment classification of the Gallenthin property, the New Jersey Supreme Court analyzes the meaning of blight as it pertains to the New Jersey Constitution and the Local Redevelopment Housing Law (LRHL) in Gallenthin Realty Development, Inc. v. Borough of Paulsboro (A-51-2006):

The Constitution expressly authorizes municipalities to engage in redevelopment of “blighted areas.” The State may take private property only for a “public use.” Under the Blighted Areas Clause of the New Jersey Constitution, the clearance, replanning, development, or redevelopment of blighted areas shall be a public purpose and public use for which private property may be taken or acquired. The LRHL empowers municipalities to designate property as “in need of redevelopment” and thus subject to the State’s eminent domain power.

In the Court’s final analysis, Paulsboro’s view of blight was incongruent with both the statutes and the Constitution. Paulsboro interpreted subsection 5(e) of the LRHL to permit redevelopment of any and all properties that were stagnant, or not fully productive. Any property which is underutilized could be deemed blighted under this flawed approach and, had the Court's interpretation adopted such an expanded definition of blight, most properties would be eligible for redevelopment. Instead, the Court held:

Because the New Jersey Constitution authorizes government redevelopment of only “blighted” areas, the Legislature did not intend N.J.S.A. 40A:12A-5(e) to apply in circumstances where the sole basis for redevelopment is that the property is “not fully productive.” Rather, subsection 5(e) applies only to areas that, as a whole, are stagnant and unproductive because of issues of title, diversity of ownership, or other similar conditions. Therefore, the Borough of Paulsboro’s redevelopment classification in respect of the Gallenthin property is invalidated.

However, the Court also said that its holding does not prejudice any future inquiry by the Borough regarding whether the property is “in need of redevelopment” based on any other legitimate grounds.

The long, contentious three-year litigation over Bloomfield’s redevelopment and its attempts to secure properties by eminent domain is over. The New Jersey Superior Court entered an order approved by Essex County Assignment Judge Patricia Costello dismissing Lardieri et al v. Township of Bloomfield (ESX-L-8929-06) on the express condition that Bloomfield would not use its power of eminent domain to acquire the five plaintiffs’ properties.

The order was approved in a resolution by the Bloomfield Township Planning Board, the Mayor and Council. Both the resolution and the order establish that Bloomfield, when it selects a new developer, cannot use eminent domain to acquire private properties for the project, and the developer can acquire properties only through arms length negotiations. Most importantly, eminent domain has been removed from the developer’s arsenal.  

"Eminent domain reform would allow good redevelopment to continue while protecting tenants and property owners against the abuses that are undermining redevelopment across the state."  - Public Advocate Ronald Chen

 "I don't want their money. I want my house. From my back porch, I have a panorama of the whole ocean. It's heaven on earth." - Louis Anzalone, Long Branch property owner

To move heaven and earth and the New Jersey Legislature, it will take more than Public Advocate Ronald K. Chen and a few good citizens. But the report issued yesterday by the Office of the Public Advocate may well be the tipping point.

In Need of Redevelopment: Repairing New Jersey’s Eminent Domain Laws, Abuses and Remedies, is a follow up to the Public Advocate’s report issued in May 2006 concerning local redevelopment projects and eminent domain abuse. To access the new report, click here. (The PDF is 6.71 MB)

The new report focuses on widely reported cases involving eminent domain abuse in Long Branch, Lodi, Paulsboro, Edison, and Perth Amboy. The Public Advocate filed amicus briefs in the City of Long Branch v. Brower and City of Long Branch v. Anzalone,  Gallenthin Realty Development, Inc. v. Borough of Paulsboro, and LBK Associates v. Borough of Lodi cases. The Long Branch and Lodi cases are pending oral argument in the Appellate Division, and the Gallenthin case was argued last month before the New Jersey Supreme Court. Three of the cases referenced in the report were or are being handled by our firm, including City of Long Branch v. Anzalone, City of Bloomfield v. 110 Washington Street, and City of Long Branch v. Strahlendorf.

Public Advocate Ronald Chen has been pilloried for his support of eminent domain reform. The latest blast came from Senate Majority leader Bernard Kenny, Jr. (D-Hudson.), chairman of the Budget Committee, who took the opportunity during recent budget hearings to criticize not just the Public Advocate's budget, but Chen's eminent domain activism.  The Public advocate has filed amicus briefs in four eminent domain cases: two in Long Branch, one in Lodi, and the other case, Gallenthin Realty v. Paulsboro which the N.J. Supreme Court heard last month. Kenny accused Chen of trying to change the law through the courts instead of the legislature. But Chen spoke to the press after the meeting saying, "When the Supreme Court decides it's going to take a case on the definition of blight...if you don't get on that train, it's leaving without you."

Chen used his office properly to speak out on behalf of the people of New Jersey on this issue. Don't forget the "Average Joe" who is usually the victim in these cases does not have the money or the the lobbying force to match the municipalities, the builders, and the developers.

Kenny equates the use of eminent domain in connection with redevelopment as the "economic engine" for beneficial change, mostly in the form of increased tax revenue. Kenny conviently ignores the abuse of eminent domain that goes with the process. According to the Asbury Park Press (May 8), Kenny said, "Changing the burden of proof will paralyze the state and municipalities in being able to develop their properties in accordance with the economic conditions at the time."

Changing the burden of proof to the municipality to justify blight will level the playing field in light of the overwhelming presumption in the case law which favors the validity of municipal action. See Concerned Citizens of Princeton, Inc. v. Mayor and Council of the Borough of Princeton, 370 N.J. Super 429, 851A.2d 685 (App. Div. 2004),

"My feeling is that if the evidence is there and the area is blighted, this really should not be much of a burden on the municipality at all," Chen said. He also doesn't agree that property can be blighted just because the state believes it can come up with a more beneficial and productive use.

Chen has testified before the legislature on numerous times, suggesting reform of current eminent domain legislation where the process is transparent, compensation is made fair, and relocation in the same community is required.  But nearly two years after the Kelo decision, the New Jersey legislative process remains stalled.

The public has Ronald Chen as their advocate, and he's doing an excellent job under difficult circumstances, testifying before the legislature and presenting his arguments in the courts. He should be applauded for his efforts.  

"Our goal is really quite simple: to keep the power flowing to all Americans with sufficient reliability. And so, each draft Corridor was designed to include both areas where significant congestion problems or constraints exist and areas where there is a substantial amount of existing underutilized capacity as well as the potential for development of renewable energy generation – a so-called “source-and-sink” approach. In other words, these Corridors are meant to facilitate the process of connecting places that need relief with places that have the potential to supply more power. And this work cannot happen soon enough." -- Remarks as Prepared for Energy Secretary Samuel Bodman, First Annual Grid Week Conference, Washington, D.C.

Looking at the map above, it's clear that all of New Jersey falls into a "power bottleneck" where the Department of Energy (DOE) claims new electrical lines are critical to support the current grid. And significant p