Kelo Anniversary: The eminent domain abuse saga continues

"The decision was supposed to be issued within 30 days�I'm rather shocked. I used to think this was America. The whole Jersey coast is finding out what America is." - George McKenna (Long Branch Marine Terrace resident) in the Asbury Park Press

"Tomorrow the people will be no safer. Worse still, the bill misleads the public�A Kelo taking will still be possible." - Richard A Merkt (R-District 25)

Today is the first anniversary of the Supreme Court's controversial decision in the matter of Kelo vs. City of New London. Two significant events occurred yesterday afternoon, ironically one day before numerous rallies scheduled across New Jersey and the United States protesting eminent domain abuse.

1. The Assembly of the State of New Jersey voted 52 to 18 (with 9 abstentions) approving Bill A-3257 which amends the Local Redevelopment Housing Law (LRHL) N.JSA 40A:12A-1 et seq.

2. Judge Lawrence Lawson issued his decision in favor of the City of Long Branch against the MTOTSA property owners who sought to save their beachfront homes from a redevelopment project, Beachfront North Phase II.

In our view, A-3257 is a good first step toward reform, but it does not tighten section 5 of the statute N.J.S.A. 40A:12A-5 (a.-h.) This section is the legislative definition of "blight." Blight is the term used in the New Jersey Constitution of 1947 which states that takings to eliminate blight are a public purpose. The word "blight" has a specific, limited connotation. Like pornography, people know it when they see it. The legislature, in defining blight, has gone well beyond the words used in the New Jersey Constitution. This is what is problematic for many home owners, who see properties which are clearly not blighted slated for acquisition and turned over to private developers for redevelopment in accordance with a plan approved by the municipality.

A companion bill sponsored by Senator Ronald Rice (D-Newark) is pending before the New Jersey Senate. Senator Rice has indicated he doesn't plan to take action on the bill until after the budget and summer recess. Assemblyman Burzichelli told us in a conversation broadcast last evening on Asbury Radio that he expects Governor Corzine to press Senator Rice to act more expeditiously on eminent domain reform.

On the radio broadcast last night, Denise Hoagland, Lori Vendetti and Bill Giordano all Long Branch property owners slated to be acquired for Beachfront North Phase II stated their position very clearly. Why should their properties, which are well maintained in accordance with all municipal codes be taken so that Applied Management and K. Hovnanian can build new condominiums for other property owners. These owners, and many Assembly members in yesterday's debate, were critical of A-3257 in its current form. They believe that it did not afford enough protection to property owners.

As reported in today's Star Ledger members of the Assembly were also critical of the proposed bill:

"We should be ending eminent domain for private-to-private transfers," said Assemblyman Guy Gregg (R- Morris). The U.S. Supreme Court sparked a national outcry last year when it gave local governments wide latitude to condemn and knock down homes for private redevelopment.
Assemblyman Samuel Thompson (R-Middlesex) said he would prefer a stronger bill but Burzichelli's measure is "a significant improvement over what we have today. We either take this or in all probability we get nothing anytime soon."

The MTOTSA residents elaborated on their concerns with the new proposed subsection N.J.S.A. 40A:12A-5 (i), which says that a redevelopment may include 20 percent of properties that are not blighted in order to achieve the redevelopment goal, which may be dictated by the size of the project, location, or the need for roadways and utilities. Vendetti said that the MTOTSA area would still have been taken under this provision since it is approximately 20 percent of the entire Beachfront North Redevelopment

Judge Lawson's decision will be appealed. His denial of a hearing on the right to take issue will in all likelihood result in a reversal. There are ample questions presented by the property owners which should have been the subject of limited discovery and an evidentiary hearing. Among these are:

1. Conflicts of Interest - Judge Lawson glosses over and ignores blatant conflicts of interest by the Greenbaum firm and the Ansell Aaron firm. He criticizes the property owners for not presenting more facts supporting our allegations and their effect on the project decisions. This is a Catch-22 argument as we can only develop these facts if we are allowed to depose James Aaron, Allan Davis, Arthur Greenbaum and others, which Judge Lawson has said we are not entitled.

2.Timeliness - The Court criticizes the property owners for not contesting the blight declaration in 1996. Our presentation showed that these property owners were blatantly lied to by Long Branch city officials and told that their properties would be "residential infill" and not acquired for redevelopment. This changed in 2002 without notice to the property owners or any further hearing regarding this change. Mayor Schneider said that it was always Long Branch's intention to acquire these properties. This is a blatant lie as can be testified to by numerous property owners who attended the presentation in 1996 and subsequent municipal meetings.

3. Blight Criteria - These properties are not blighted and they did not meet blight criteria in 1996. If Assemblyman Burzchelli's bill is passed, the burden of proof as to the demonstration of blight changes from the property owner to the municipality which must show by preponderance of the evidence that the properties meet the statutory criteria for blight. An appellate panel may consider this change in the law, assuming it passes, in determining the correctness of Judge Lawson's conclusion.

4. Good faith negotiations: One thing that troubled Judge Lawson was the artificial ceiling placed by the municipality in the ordinance and the redevelopment agreement regarding compensation to be paid the property owners. This is blatantly unconstitutional and the Court, although troubled, took no action, since in the Court's view there was nothing presented indicating this provision adversely effected negotiations will the property owners.

Judge Lawson's 60-page opinion will require a great deal of analysis. The foregoing points are highlights of areas we deem problematic, but are by no means meant to be comprehensive with respect to the legal arguments we will present to the Appellate Court.

Download Judge Lawson's opinion. This is a 2MB file.

Ed. note: The City of Long Branch v. Anzalone was settled on September 15, 2009, after negotiations. The Anzalones claimed that the trial court erred by not allowing discovery on how the various conflicts of interest of city officials and the City's law firms might have influenced the decision to include their property in the redevelopment. In the Appellate Division opinion of August 7, 2008, the court wrote, "We find no reversible error in the trial court's findings regarding conflicts of interest, bona fide negotiations, or delegation of eminent domain authority." (Slip opinion, 6.)

Written By:Regina Browne On June 25, 2006 11:11 PM

I just cannot believe our government is letting this happen. My husband and I met when he was posted at Fort Monmouth 15 years ago. We spent many weekends on the beaches of Long Branch. In fact, I ate frequently at the little bar and grill on the beach front, the one that was taken to build very expensive unaffordable restaurants. I also found there is very little parking available for the public. It seems to me that the only people who will be using these beaches now are the condo owners. It's wrong that they are using eminent domain for the use of private development. It's completely wrong that the only people who are reaping the benefits of this development are the very wealthy. Yes, it 's tax revenue for the city, but at what cost? We will be moving out of New Jersey soon and I am so happy!

Written By:Peter C. Hansen On July 20, 2006 3:05 PM

This to let you know about this letter recently sent to the NJ Public Advocate, urging him to press for the right to a jury trial in "blight" cases. (Further information on this topic can be found at The Legal History Project website blog Juridicus --

July 4, 2006

Mr. Ronald Chen
Public Advocate of New Jersey
Department of the Public Advocate
240 West State Street
P.O. Box 851
Trenton, NJ 08625-0851

Dear Mr. Chen,

Please accept my warmest congratulations on your courageous and clear-sighted report on the need for eminent domain reform in New Jersey. The specific legal and doctrinal changes you propose are critically needed, and I share your hope that the state legislature and courts will take their earliest opportunities to implement them.

With specific regard to your proposal that property owners be given a meaningful opportunity to appeal a blight designation (pp. 16-17), you are wise to focus on judicial avenues of relief. Your proposals, however, do not specify an obligation for the courts to provide a hearing, especially one before a jury. Plaintiffs have a right to such due process in a matter as important as a property seizure. A full hearing before one’s peers also serves the public good by checking arbitrary or abusive government action.

Actions to obtain a hearing before one’s peers may exist under common law, but they are currently dormant and need to be revived. (Please see the enclosed discussion of this topic taken from the Legal History Project website.) Since an action to compel even a limited assize hearing faces very uncertain prospects under current New Jersey law, I urge you to develop, propose and push for legislative reforms specifically guaranteeing to anyone contesting a blight designation the right to have the case heard before one’s peers.

I would be pleased to provide any assistance I can in such respect, and wish you every success in your efforts at critical reform.

Sincerely yours,

Peter C. Hansen, Esq.
Founder, The Legal History Project

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