Eminent Domain in Long Branch: Reserved Decision - Lives on Hold
"This is a hot matter. It is a very contentious matter. Someone is going to win. Someone is going to lose. That is the way it is going to be." – Judge Lawrence Lawson
Friday, March 24, 2005 was the return date on the Orders to Show Cause for the MTOTSA area property owners. The Order to Show Cause requests that the court sign the Order of Judgment appointing condemnation commissioners, which is a final judgment on Long Branch’s right to take the properties. State v. Orenstein, R.4:67-1. All of the property owners, with only two exceptions, filed answers and submitted briefs and certifications on the right to take issue. The hearing was held before the Honorable Lawrence M. Lawson A.J.S.C. at Monmouth County Court House, Freehold, New Jersey.
The court heard two and one-half hours of oral argument. First to proceed was James Aaron of the Ansell Aaron Grimm & Zaro firm representing the City of Long Branch. Aaron delivered a one-hour Chamber of Commerce-style production replete with charts, renderings, and blow-ups of portions of his 94-page brief. He was accompanied at the plaintiff’s table by an entourage including his partner Lawrence Shapiro, Long Branch Mayor Adam Schnieder, City Administrator Howard Wooley, City Planner Carl Turner, and two attorneys from the Greenbaum Rowe firm, Michelle Gibson and Robert Beckelman.
That’s right, the Greenbaum firm. The same firm that has recused itself on no less than two occasions related to the Long Branch redevelopment project was present and seated throughout the argument at the counsel table. And at the conclusion of the plaintiff’s and defendants’ arguments and rebuttal, Judge Lawson asked Ms. Gibson and Mr. Beckelman if they, too, wanted to speak their piece, which they did. One wonders if this was yet another billable event for the Greenbaum firm. And, at what point is a "recusal" a recusal? Or is it something along the lines of the definition of what “is” is? Perhaps the firm needs a Bill Clinton to parse this concept for them.
Peter Wegener of Bathgate and Wegener, who represents the majority of MTOTSA area property owners, spoke for approximately forty minutes on the blight issue and the change from residential infill to an area to be condemned. By agreement among counsel, and to avoid needless repetition, the focus of my argument was the conflicts issue and the plight of senior citizens in the MTOTSA neighborhood. All issues were fully briefed by both firms representing the property owners. Scott Bullock and the Institute of Justice contributed to Mr. Wegener’s reply brief and provided the services of a planning expert. According to the Star-Ledger, Bullock said his group is joining the legal fight in Long Branch because "New Jersey is one of the worst -- if not the worst -- abusers of eminent domain in the country."
The court reserved decision and promised counsel and the assembled property owners a written opinion within 30 days. The property owners are asking the court for a plenary hearing on the “right to take” issue with limited document discovery and depositions. Among the issues the property owners want to explore are the following:
1. Alleged conflicts of interest among Long Branch attorneys, Greenbaum Rowe Smith & Davis, Ansell Aaron Grimm & Zaro, and the developers, the Applied Companies of Hoboken and K. Hovnanian (Matzel Mumford), and city officials who were also directors and/or shareholders at the Monmouth Community Bank.
2. The plan change which was effectuated in 2000-2001 resulting in the MTOTSA area going from “infill residential” to an “area to be acquired.”
3. The public use vs. private benefit issue. The private benefit to the developers would be a windfall.
The developers want to build 150 additional condominium units which would sell for an average price of $800,000 according to a current prospectus. This would result in gross sales of $120 million dollars. Less cost of construction, acquisition, and soft costs – attorneys, architects, engineers—the developers would net over $100 million from the sell out of Beachfront North Phase II. The “public benefit” in comparison is negligible. 150 condo units will result in a marginal increase in assessed value of the area, although this will result in some additional taxes to the city of Long Brach. James Aaron said that the developer would put up a 10,000 square foot structure which meets a “public use” criteria. Mr. Aaron never fully explained this to the court or counsel, and was unable to produce documentation supporting this assertion or memorializing this particular plan change. He was ordered to do so by Judge Lawson no later than 4 p.m. on Monday, March 27, 2006. This alleged “benefit” could be achieved without further condemnation of the MTOTSA residents because sufficient vacant land adjacent to the DeLuca home is already owned by the municipality and Stavola, a local contractor.
When doing a cost-benefit analysis to determine the public benefit versus the private gain, one element is always overlooked: the almost incalculable loss to the homeowners resulting from the acquisition of their home through eminent domain proceedings. The law ( N.J.S.A. 20:3-1) mandates that the owners receive “fair market value” for the property taken and owner occupants will receive Relocation Assistance (N.J.S.A. 20:4-1) to cover their relocation costs.
This is not the full story. Who pays for the psychological damage resulting to the senior citizens who are forcibly evicted from homes they have occupied for 30 to 40 years or more? See blog "Hope Grows in Brooklyn" featuring a discussion by Dr. Mindy Fullilove about her book Root Shock:How Tearing Up City Neighborhoods Hurts America, and What We Can Do About It. How do seniors on fixed income purchase replacement housing without the ability to take on and pay for a mortgage? See “Community built in 50 years, broken in 3” in the March 18, 2006 Star-Ledger on the last people moving out of the Dewey Street neighborhood in Newark. How will these people be made whole, a fundamental concept in eminent domain?
"Where can I go at 93 years of age?" asked MTOTSA resident Albert Viviano. "Eminent domain can sweep the land right out from under you." Senior citizens will, in effect, become homeless and forced to depend on their sons, daughters, and grandchildren for support. They will have to move to neighborhoods of lesser value and in some cases, completely outside the state of New Jersey. They will never be able to buy homes in the beach block such as they currently enjoy.
The “offer” of Long Branch and the developers to give the owners condominiums is nothing more than a public relations ploy. A perfect example of the implementation of their offer would be the Anzalones, both of whom are 89. They own their home outright and exist on Social Security income. They were offered $310,000 for their house, 150 feet from the beach with an ocean view. A 10% discounted condominium would still cost a minimum of $630,000 ($700,000 minus $70,000). The developer offered three years free of association dues and Long Branch offered to keep the taxes on the condos at the present level as existing on the home to be acquired.
How could the Anzalones qualify for and pay for a mortgage at this stage in their lives? $320,000 at 6.5% equals $20,800 in interest only per year. Lou Anzalone had one answer for this proposal as stated on the Sean Hannity show: an emphatic "NO!" His house is not for sale and he will fight as long as he is able. The other MTOTSA area owners feel equally adamant and await Judge Lawson’s ruling. In the meantime, Judge Lawson asked if there was any objection if he toured the neighborhood on Saturday, March 25. There he would be greeted by posters and signs that shout “Not for sale” and “Stop eminent domain abuse.”
"It's not going to end here. We're going to fight this forever," Lori Vendetti stated in the Asbury Park Press. "We're going to fight this injustice, and we're going to win."
As a member of the MTOTSA group, I just want to say thank you for your direct and succinct approach to the conflict of interest issues in court on Friday and am really appreciative of your presentation articles on eminent domain on this site. Please continue the fight with us.