Motion filed to force city to move on condemnation
Attny. asks court to order city to move or dismiss action
BY CHRISTINE VARNO
Staff Writer

A motion to compel the city of Long Branch to move forward with the condemnation of a home in one of the city's beachfront redevelopment zones was filed in state Superior Court Tuesday.

In the motion, attorney William J. Ward, of Carlin & Ward, Florham Park, requests a hearing before Judge Lawrence M. Lawson on Oct. 20 to argue that the city should file a declaration of taking for Frances DeLuca's Ocean Terrace home.

According to Ward, the city is not negotiating in good faith with his client, who decided to sell her beachfront home after a court decision affirmed the city's right to take her property.

Ward is also asking that the appraised amount of $552,000 for DeLuca's home be deposited in court, according to the brief filed with the motion.

"Our objective is to get the city to put up the [appraised amount of DeLuca's home], which they have refused to do," said Ward in an interview Tuesday.

"We already had negotiations [with the city], and we did not resolve anything. Fran is willing to sell [her property], so [the city] should move forward."

DeLuca's property lies in the Beachfront North Phase II redevelopment zone known as MTOTSA (Marine and Ocean Terraces and Seaview Avenue), where the majority of residents are appealing a decision by Lawson that permits the city to use eminent domain to acquire their properties for a redevelopment project.

"[DeLuca] is not appealing the decision," Ward said.

DeLuca is in the process of building a home on Ocean Avenue, outside of any redevelopment zone, and the funds from the condemnation of her current residence are needed to finance the construction of her replacement home, Ward said.

"[DeLuca] has requested the city make the required deposit and file the declaration of taking with the clerk of the Superior Court," according to the brief, which states, "The city, through its counsel, has refused to make the deposit at this time."

If the city does not move forward with the taking of DeLuca's property, Ward alternately requests that the condemnation complaint served upon his client by the city be dismissed.

"Practically, the dismal of the condemnation complaint is not going to happen," Ward said. "[Lawson] already refused to dismiss the complaint. If [the city] doesn't file the taking of [DeLuca's] property, then the alternative is to dismiss the complaint."

Ward states in the brief that the amended agreement between the designated developer of the zone and the city reads:

"In the event no voluntary purchase agreement is reached within a reasonable time period, then the city shall promptly commence an eminent domain proceeding and shall file a declaration of taking and deposit the offer price with the court.

"The city shall diligently prosecute the action before the commissioners appointed to render a determination as to compensation."

In the brief, Ward argues several points.

The first is that the redevelopment agreement between the city and the developer requires Long Branch to promptly file the declaration of taking.

The second is that a fair reading of the Eminent Domain Act of 1971 requires the city of Long Branch to immediately file the declaration of taking and make the required deposit with the Superior Court.

Also, that condemning authorities are mandated in eminent domain proceedings to deal fairly with property owners.

Plans for DeLuca's neighborhood call for developer MM Beachfront North LLC, consisting of K. Hovnanian and the Applied Cos. to raze the neighborhood and construct a luxury condominium project.

A condemnation complaint was filed on DeLuca's property in December 2005, and in March 2006 attorneys for DeLuca and some 20 other residents in her neighborhood appeared before Lawson to argue that the city improperly sought to acquire the property, according to Ward.

In his opinion rendered in June, Lawson denied the arguments and entered an order for final judgment, affirming the city's right to acquire the properties.

In August, Ward and DeLuca met with City Attorney James Aaron to negotiate a settlement and requested that the city move forward with the taking of her property and deposit the appraised value of her property with the court, Ward said.

In September, Ward received a letter from Aaron stating that the city had decided not to file the declaration of taking and additionally decided not to deposit any money in court, Ward said.

In the certification filed in support of the motion Tuesday, DeLuca said, "I find the city's decision to be shocking. The city has thus made it impossible to sell, mortgage, rent or otherwise enjoy the freedom of my real property and denied me my constitutional rights."

Ward also submitted an order to the court on Sept. 28, seeking the appointment of condemnation commissioners to fix the compensation the city will pay for DeLuca's home as required by law, according to the brief filed with the motion.

"[DeLuca] is being unfairly leveraged by the decision of the city of Long Branch and the developer to withhold the deposit and filing of the declaration of taking," Ward said in the brief.