After Long Branch, NJ still needs eminent domain reform

Tom Anzalone is proud about his father’s decision to save his beachfront home in Long Branch. “He may be 92,” Tom said, “but my father made all the major decisions. It’s his house. He has that World War II fighting ethic, fighting for his rights.” 


On Tuesday, attorneys for the majority of property owners in the Marine Terrace, Ocean Terrace, Seaview Avenue (MTOTSA) neighborhood in Long Branch signed a final consent order of settlement in their long-standing eminent domain case. As the attorney for homeowner Louis Anzalone, I was one of them. Peter Wegener represented the other homeowners, and Scott Bullock and the Institute for Justice joined the case on appeal. Together we formed a united front on behalf of the property owners. Still, it was the participation of New Jersey’s Public Advocate Ronald Chen that made the difference, not only in this case but in all the important cases that are redefining the way we view eminent domain in New Jersey.

 In the Long Branch matter, the mediation process went on for months after an August 2008 Appellate Court decision, which reversed in part and remanded the case to the same trial court that ruled against the property owners in June 2006. Monmouth County Assignment Judge Lawrence Lawson wisely placed the mediation process in the hands of Superior Court Judge Thomas W. Cavanagh, Jr., who brought negotiations to fruition. On Tuesday evening, the Long Branch City Council voted 4-1 on the resolution to accept the consent order and the terms of settlement. So the litigation is over.

The agreement dismisses the condemnation complaints, eliminates the use of eminent domain in these same properties, guarantees the property owners’ rights to redevelop their own properties, and gives the property owners the same tax abatements in the process that would be given to any developer. The agreement also stipulates the counsel fees that will be divided among all counsel and paid by the city, which by law are awarded when a condemnation complaint is abandoned. And the city will upgrade streetlights and pave and maintain the roads. The designated developer will adhere to a demolition schedule to take down those homes in the neighborhood that were vacated and boarded up - getting rid of "developer's blight. "

Blight is not in the eye of the beholder, contrary to a statement made by Justice Kennedy during the oral arguments in the U.S. Supreme Court case, Kelo v. New London. In New Jersey, it is a word that has specific meaning and a public purpose as set forth in the 1947 Constitution. In 1992, the Local Redevelopment Housing Law developed criteria to determine blight that could result in a condemnation of almost any property.

And that was where the Public Advocate came in, as a friend of the court in support of the property owner’s position in the 2007 N.J. Supreme Court case, Gallethin Realty v. Borough of Paulsboro. Blight has to be proved by substantial, credible evidence. The courts insist on more than a cursory review of the properties or a recitation without substantiation of the statutory blight criteria; thus, there is a trend toward a more restrictive interpretation of the law. But it is apparent that 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. That’s what happened in Long Branch, and that’s why the Appellate Division reversed the blight designation in 2008.

But victory has no time to waste, resting on laurels. Gallenthin Realty v. Borough of Paulsboro reminds us that, while the New Jersey Legislature enlarged the power of eminent domain to include the taking of private property for redevelopment purposes, the judiciary is the final arbiter. The City of Long Branch v. Anzalone case is a reminder of what remains undone. We gain a piece here and a piece there through case law, but what is required is a comprehensive review of the statutory structure.

The New Jersey Legislature has been considering eminent domain reform for more than 4 years and has yet to pass a bill addressing substantive changes to the Eminent Domain Act of 1971, the Local Redevelopment Housing Law, and the Relocation Assistance Act and Regulations. A reform bill was voted out of the Senator Ronald Rice’s Community and Urban Affairs Committee, but has not moved. According to the Institute for Justice, 43 states have passed significant eminent domain reform since the Kelo case in 2005. Not New Jersey. Without statutory reform, the potential for eminent domain abuse will continue. And New Jersey’s property owners will fight city hall, case by case, for their homes, their farms, relocation for their small businesses, and their right to redevelop their own property.

Ed. Note: This op-ed piece was originally published in the New Jersey section of The Star-Ledger on September 18, 2009, under the title, "New Jersey still needs eminent domain reform."  The online version can be found at NJ Voices. The video by Mia Song was filmed by the Star-Ledger on the same day the Appellate Court issued its opinion on August 7, 2008. One month later, Lillian Anzalone died peacefully on the front porch of her beachfront home.