Brief seeks dismissal of condemnations
Attorneys argue city gave control to developers
BY CHRISTINE VARNO
Staff Writer

Attorneys representing a group of Long Branch homeowners have asked the state appellate court to overturn a lower court ruling that permits the condemnation of their clients' oceanfront properties by the city of Long Branch.

In a brief filed Feb. 8, attorneys for the homeowners asked the court to dismiss condemnation actions on the properties, or to remand the suit back to the trial court to allow for discovery and a "fair" hearing.

The brief was filed in an appeal of a June 22 Superior Court ruling that said the city has the right to take the properties in the MTOTSA neighborhood, consisting of Marine and Ocean terraces and Seaview Avenue, for a private redevelopment project.

"I would be astonished if the appellate court, at the very least, did not overturn the trial court decision and allow for discovery to permit evidence in a real hearing," said Institute for Justice (IJ) Senior Attorney Scott Bullock in an interview last week.

"I ultimately see the MTOTSA homeowners keeping their homes," Bullock said, adding, "That is what N.J. redevelopment law requires," Bullock said.

Peter H. Wegener of Bathgate Wegener and Wolf, Lakewood, with IJ, Arlington, Va., as co-counsel, filed the opening brief in the appeal in the Appellate Division of state Superior Court on behalf of 18 property owners in the Beachfront North, Phase II redevelopment zone.

The city is expected to file its response brief within 60 days.

Wegener and IJ will then have 20 days to file a reply brief, according to Bullock, who said oral arguments on the case could begin sometime in June or July.

The brief argues six main points, including that the redevelopment contracts gave Long Branch's power of eminent domain to the private developer, Bullock explained.

It also argues that the U.S. and New Jersey constitutions restrict eminent domain to true public purposes, Bullock said, adding that the Local Housing and Redevelopment Law does not allow Long Branch to use "sham" blight designation as an excuse for taking away people's homes.

The brief also argues that the condemnations are unnecessary because MTOTSA is not blighted and the beachfront has otherwise been entirely redeveloped.

Lastly, the brief argues that Long Branch failed to negotiate in good faith with the homeowners and city attorneys with financial conflicts of interest tainted the redevelopment process.

In a June 22 decision, Judge Lawrence M. Lawson determined that the city was permitted to seize the oceanfront properties in MTOTSA for a private redevelopment project.

The decision came approximately 90 days after a hearing on a motion to dismiss the condemnation complaints served by the city on residents in the three-street MTOTSA neighborhood.

Bullock explained that he and Wegener maintain that Lawson got the law "blatantly wrong" when he decided the city's use of eminent domain in the MTOTSA area is for a public purpose.

"All Judge Lawson said was did the city comply with redevelopment statutes," Bullock said. "And if it did, then there is no public use problem with the takings of these homes.

"That is outright wrong," Bullock said, adding, "You simply cannot just rubber-stamp what the city did."

According to Bullock, another area Lawson got wrong was agreeing with the city's arguments that MTOTSA is an area in need of redevelopment.

"The designation of an area in need of redevelopment has to be supported by substantial evidence," he said. "The city used extremely flimsy evidence to justify the designation.

"All the city did was rely on a 1995 survey that was done by eyeballing the properties. That is the basis for the blight designation and it's ridiculous."

Additionally Bullock said, he will argue in the appeal that the city transferred to the developers its power of eminent domain by signing the redevelopment contract.

"The developers essentially control the eminent domain process," Bullock said. "These redevelopment contracts give the developers the right to decide when eminent domain will be used, if eminent domain will be used. It's unjust."

Bullock also contends that the takings of the MTOTSA properties are not necessary.

"It is a small enclave of nonblighted properties," he said.

"Substantial redevelopment has already been fulfilled [in other redevelopment zones on the oceanfront] and the takings are not necessary in order to accomplish this.

"You have an area here that is cohesive and could be preserved," he said.

The last two points the attorneys will argue are that the city did not negotiate in good faith with the property owners and conflicts of interest occurred between the city and developers throughout the redevelopment process .

"These property owners' homes were changed in the redevelopment plan from infill housing to the taking of property without notice," Bullock said.

"And there was a lack of discussion and dialogue between the city and the property owners which is a necessity before proceeding with condemnation," he said.

On the issue of conflicts, the attorneys for the homeowners contend that conflicts existed between City Attorney James Aaron's law firm, Ansell Zaro Grimm and Aaron; the Greenbaum Rowe Smith and Davis law firm; City Council members; developer K. Hovnanian and the Monmouth Community Bank.

The attorneys will argue that the bank provided a line of credit to the developer and employed City Council members Anthony Giordano and David Brown, both of whom are shareholders in the bank. Councilman Michael DeStefano is also a shareholder in the bank.

Also, the brief states senior attorney Arthur Greenbaum's firm represented the city in condemnation proceedings while he was a director and shareholder of K. Hovnanian. Also, while Aaron was representing the city, his firm represented K. Hovnanian.

Plans for MTOTSA call for designated developer MM Beachfront North II - consisting of Matzel & Mumford, a division of K. Hovnanian, and the Applied Cos., Hoboken, to raze the neighborhood and construct three buildings with 185 upscale condominium units.

Attorney William J. Ward, Carlin & Ward, Florham Park, is representing Ocean Terrace residents Louis and Lillian Anzalone in the appeal.

The opening brief in the Anzalone appeal was filed in January, according to Ward, who explained that his client is on a different briefing schedule than MTOTSA.

One reason Ward believes that MTOTSA is a couple of weeks behind his clients in the briefing process is due to the city's attempt to block IJ from being admitted to the MTOTSA case "pro hac vice."

A pro hac vice motion, which translates as "for this matter only" is required to be filed by out-of-state attorneys in order to be permitted to practice law in a state where they are not licensed.

The city filed a motion in November to disqualify IJ, but the Appellate Division ruled in favor of allowing IJ to participate in the suit on Dec. 4.

The city filed a similar motion in the Anzalone appeal on Jan. 25, aiming to disqualify state Public Advocate Ronald K. Chen's amicus curiae brief from being used to support the Anzalone's appeal.

Chen filed the brief as a friend of the court in the state Appellate Division of the Superior Court Jan. 11, supporting the appeal by the Anzalones and MTOTSA.

According to a brief prepared by Lawrence H. Shapiro of City Attorney James Aaron's firm, Chen "improperly expanded" on issues not on record during the Superior Court hearing to dismiss the condemnation complaints served upon the Anzalones and several MTOTSA residents.

Such issues include Chen's claim that residents were not properly notified of the pending condemnation of their properties. Also, that two-thirds of the information in Chen's appendix was never before the trial court.

The court had not decided on the motion to dismiss Chen's report in the Anzalone case as of deadline Tuesday.

Bullock said that the city filed a similar brief earlier this month in the MTOTSA case asking the court not to allow Chen's brief to not be admitted.

IJ is expected to oppose the city's motion in a brief to be filed this week, Bullock said.

"This is a ridiculous attempt by the city," Bullock said. "They are grasping at straws. This is demonstrating that they are seriously concerned, as they should be, as to what they are arguing in court.

"We are confident in our arguments," he said.

The city is also expecting several amicus briefs to be filed to support its case according to Aaron, including a brief from the League of Municipalities.

Bullock said he and Wegener do not plan to contest the amicus briefs filed on behalf of the city.

"This is an extremely important case," Bullock said. "The court must have the broadest sense of all the views."

attorneys with financial conflicts of interest tainted the redevelopment process.

In a June 22 decision, Judge Lawrence M. Lawson determined that the city was permitted to seize the oceanfront properties in MTOTSA for a private redevelopment project.

The decision came approximately 90 days after a hearing on a motion to dismiss the condemnation complaints served by the city on residents in the three-street MTOTSA neighborhood.

Bullock explained that he and Wegener maintain that Lawson got the law "blatantly wrong" when he decided the city's use of eminent domain in the MTOTSA area is for a public purpose.

"All Judge Lawson said was did the city comply with redevelopment statutes," Bullock said. "And if it did, then there is no public use problem with the takings of these homes.

"That is outright wrong," Bullock said, adding, "You simply cannot just rubber-stamp what the city did."

According to Bullock, another area Lawson got wrong was agreeing with the city's arguments that MTOTSA is an area in need of redevelopment.

"The designation of an area in need of redevelopment has to be supported by substantial evidence," he said. "The city used extremely flimsy evidence to justify the designation.

"All the city did was rely on a 1995 survey that was done by eyeballing the properties. That is the basis for the blight designation and it's ridiculous."

Additionally Bullock said, he will argue in the appeal that the city transferred to the developers its power of eminent domain by signing the redevelopment contract.

"The developers essentially control the eminent domain process," Bullock said. "These redevelopment contracts give the developers the right to decide when eminent domain will be used, if eminent domain will be used. It's unjust."

Bullock also contends that the takings of the MTOTSA properties are not necessary.

"It is a small enclave of nonblighted properties," he said.

"Substantial redevelopment has already been fulfilled [in other redevelopment zones on the oceanfront] and the takings are not necessary in order to accomplish this.

"You have an area here that is cohesive and could be preserved," he said.

The last two points the attorneys will argue are that the city did not negotiate in good faith with the property owners and conflicts of interest occurred between the city and developers throughout the redevelopment process .

"These property owners' homes were changed in the redevelopment plan from infill housing to the taking of property without notice," Bullock said.

"And there was a lack of discussion and dialogue between the city and the property owners which is a necessity before proceeding with condemnation," he said.

On the issue of conflicts, the attorneys for the homeowners contend that conflicts existed between City Attorney James Aaron's law firm, Ansell Zaro Grimm and Aaron; the Greenbaum Rowe Smith and Davis law firm; City Council members; developer K. Hovnanian and the Monmouth Community Bank.

The attorneys will argue that the bank provided a line of credit to the developer and employed City Council members Anthony Giordano and David Brown, both of whom are shareholders in the bank. Councilman Michael DeStefano is also a shareholder in the bank.

Also, the brief states senior attorney Arthur Greenbaum's firm represented the city in condemnation proceedings while he was a director and shareholder of K. Hovnanian. Also, while Aaron was representing the city, his firm represented K. Hovnanian.

Plans for MTOTSA call for designated developer MM Beachfront North II - consisting of Matzel & Mumford, a division of K. Hovnanian, and the Applied Cos., Hoboken, to raze the neighborhood and construct three buildings with 185 upscale condominium units.

Attorney William J. Ward, Carlin & Ward, Florham Park, is representing Ocean Terrace residents Louis and Lillian Anzalone in the appeal.

The opening brief in the Anzalone appeal was filed in January, according to Ward, who explained that his client is on a different briefing schedule than MTOTSA.

One reason Ward believes that MTOTSA is a couple of weeks behind his clients in the briefing process is due to the city's attempt to block IJ from being admitted to the MTOTSA case "pro hac vice."

A pro hac vice motion, which translates as "for this matter only" is required to be filed by out-of-state attorneys in order to be permitted to practice law in a state where they are not licensed.

The city filed a motion in November to disqualify IJ, but the Appellate Division ruled in favor of allowing IJ to participate in the suit on Dec. 4.

The city filed a similar motion in the Anzalone appeal on Jan. 25, aiming to disqualify state Public Advocate Ronald K. Chen's amicus curiae brief from being used to support the Anzalone's appeal.

Chen filed the brief as a friend of the court in the state Appellate Division of the Superior Court Jan. 11, supporting the appeal by the Anzalones and MTOTSA.

According to a brief prepared by Lawrence H. Shapiro of City Attorney James Aaron's firm, Chen "improperly expanded" on issues not on record during the Superior Court hearing to dismiss the condemnation complaints served upon the Anzalones and several MTOTSA residents.

Such issues include Chen's claim that residents were not properly notified of the pending condemnation of their properties. Also, that two-thirds of the information in Chen's appendix was never before the trial court.

The court had not decided on the motion to dismiss Chen's report in the Anzalone case as of deadline Tuesday.

Bullock said that the city filed a similar brief earlier this month in the MTOTSA case asking the court not to allow Chen's brief to not be admitted.

IJ is expected to oppose the city's motion in a brief to be filed this week, Bullock said.

"This is a ridiculous attempt by the city," Bullock said. "They are grasping at straws. This is demonstrating that they are seriously concerned, as they should be, as to what they are arguing in court.

"We are confident in our arguments," he said.

The city is also expecting several amicus briefs to be filed to support its case according to Aaron, including a brief from the League of Municipalities.

Bullock said he and Wegener do not plan to contest the amicus briefs filed on behalf of the city.

"This is an extremely important case," Bullock said. "The court must have the broadest sense of all the views."